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THE 

DIGEST OF JUSTINIAN 



ILonDon: C. J. CLAY and SONS, 

CAMBRIDGE UNIVERSITY PRESS WAREHOUSE, 
AVE MARIA LANE, 

AND 

STEVENS AND SONS, LIMITED, 
119* AND 120, CHANCERY LANE, 




©lasgotn: 50, WELLINGTON STREET, 

ILtmis: F. A. BBOCKHAUS. 

Bt^ gork: THE MACMILLAN COMPANY, 

JSomliBB anti Calcutta: MACMILLAN AND Co., Ltd. 



[All rights reserved.^ 



THE 

DIGEST OF JUSTINIAN 



TRANSLATED 



BY 



CHARLES HENRY MONRO, MA. 

FELLOW OF GONVILLE AND CAIUS COLLEGE CAMBRIDGE 
BARRISTER AT LAW 



VOLUME I 




Cambridge 

At the University Press 

1904 



©ambriDgc: 

PRINTED BY J. AND C. F. CLAY, 
AT THE UNIVERSITY PRESS. 



PREFACE. 



THIS Volume is an instalment of a Translation of the Digest 
of Justinian, and, if circumstances are favourable, I hope 
it may be finished in the course of a few years, either by the 
present writer or by another. A few words have to be said 
as to the general design and method of the work. Something 
is always gained and something lost by the use of a translation. 
The gain is the obvious saving of time and trouble for those 
whose knowledge of the original language is imperfect, indeed 
even for others ; the loss is that of the tone and spirit of the 
original. This at least and at the best ; but there is also the 
possibility of the translation being incorrect, while all clue to the 
true meaning is effaced. A translator must hope to obviate these 
dangers as best he may by taking care ; but there is one source of 
embarrassment which requires to be treated with special tact and 
judgment, I mean the occurrence of technical expressions. How 
are these to be rendered ? There are several ways of dealing with 
them. 

First, they can be left untranslated and simply given in the 
original ; and, if one universal method is to be followed through- 
out, I believe this to be the best. Secondly, the Latin expression 
can be translated by the name of the nearest corresponding 
institution in English law, and this plan, on the same supposition, 
I believe to be the worst. Thirdly, the Latin term may be 



vi Preface 

interpreted, i.e. rendered by a kind of explanatory substitute. 
Tliis is very common in the German translation edited by 
Otto, Schilling and Sintenis, far the best, I believe, existing ; in 
which, however, to give one example, the Latin word adoptare 
is constantly rendered * an kindes statt annehmen,' to take on the 
footing of a child ; a kind of version which leaves the reader 
with a peculiar sense of unsatisfied want. There is yet another 
method ; an English expression may be used, but it is felt at 
the same time that it is not to be taken as a translation at all, 
strictly speaking; it is meant to represent the Latin word in a 
more convenient form, not to interpret it. One very simple 
example of this occurs where the original is somewhat lengthened 
or shortened or otherwise modified, in a way which often gives 
rise to a recognised English word, though not always; take the 
terms inofficious, agnate, compensation. The last is no doubt an 
English word, but it does not translate the Latin word from 
which it is derived. This procedure is a fertile source of inaccuracy 
and misunderstanding, but we cannot afford to discard it ; we 
must, of course, bear in mind, to take an example, that, where the 
English word ' heir ' stands for heres, it is not used in its ordinary 
sense. No rule, I should say, ought to be followed exclusively ; 
on the whole, however, the plan which I have preferred is to 
go chiefly by the first, so far as to give the Latin expression, 
though to a considerable extent following the third also ; but it 
will be desirable to add a Glossary of the Latin technical terms 
used at the end of the present work. 

As hinted, a certain freedom should always be maintained ; 
even the second of the above methods need not be absolutely 
excluded ; as, for instance, where the institution named is one 
whose precise nature is immaterial to the main subject under 
discussion, or the correspondence is really exact. 

It need perhaps hardly be said that anyone who wishes 
thoroughly, or as far as he can, to understand the Digest requires 
a great deal more information than can be supplied by the best 



Preface vii 

possible translation. Many passages are difl&cult to comprehend, 
or indeed are incomprehensible, because the reasoning is involved 
and abstruse, or the text is corrupt, or there is an interpolation 
made by an incompetent or ill-advised person. With these matters 
the translator as such has very little concern. If the reasoning is 
complicated or hopelessly obscure, his aim should be to make the 
English version present precisely the same obscurity and to pre- 
serve as well as he can such means of removing it as the passage 
itself in his judgment presents. Where the text is corrupt, he 
should call attention to the fact, unless the corruption is too 
insignificant and the sense is plain ; and it will often be advis- 
able to offer some more or less conjectural reading by way of 
emendation. The best Editor of the text, I mean Mommsen, 
has suggested many such readings, most of which are adopted, 
i.e. mentioned, in the following pages. It should perhaps be here 
noted that although emendation proposed by a competent person 
is commonly of value as an expression of opinion as to the 
meaning of the true text, which it purports to supply, still an 
emendation which introduces, say, half-a-dozen words arrived at 
by conjecture, however worthy of attention, is in many cases, 
perhaps in most, very unlikely to be the true reading. The 
subject of interpolations has been treated with ability and to 
good efiect by recent writers, Gi-adenwitz and others, and is 
of considerable interest ; but an interpolated passage is stiU an 
integral part of the Digest, and has to be translated accordingly. 

This leads to the question what is the text here translated ; to 
which I have merely to say that it is, as may be supposed, taken 
from Mommsen, and almost entirely from his later single column 
edition, with, at the foot of the page, the greater number of the 
corrections or emendations suggested by him. These are marked 
in a note with the letter M, where the Editor expresses no doubt, 
the expression " Cf. M." signifying that he shows some hesitation. 
I have ventured occasionally to suggest my own emendation, with- 
out adding any explanatory mark. 



viii Preface 

I have translated what may be called Justinian's prefaces, three 
in number, which describe the scheme and occasion of the Digest 
and other works, as well as the Emperor's plan of education for 
legal students ; they consist of three * Constitutiones ' or enact- 
ments, commonly distinguished by their respective initial Latin 
words. The third of them, the Constitutio Tanta, appears to be a 
free version of a Greek text, which itself is also preserved. This 
last I have not thought it necessary to translate ; a modern Latin 
version is given in Mommsen's stereotype or double column edition. 

I have to thank Mr Buckland of Caius College for a number of 
useful hints vouchsafed during the course of the work. 

I cannot close this preface without expressing my sense of the 
immense debt owed by all those who concern themselves with the 
things of Ancient Rome to the illustrious scholar, legist and 
historian who has lately been taken from us, Theodor Mommsen. 

C. H. MONRO. 



Cambridge. 

April, 1904. 



CONTENTS. 



The formation of the Digest. 

Constitutio " Deo auctore " xiii 

Constitutio " Onmem " xviii 

Tlie confirmation of the Digest. 

Constitutio " Tanta " xxv 

I. 

I. On justice and law. {De justitia et jure.) 3 

II. On the origin of law and of the different magistracies, as well as 

the succession of those learned in the law. {De origine 

juris et omnium magistratuum et successione prudentium. ) 6 

III. On statutes, decrees of the Senate and long usage. {De legihus 

Senatusque consultis et longa consuetudine.) ... 19 

IV. On Imperial enactments. {De constitutionihus principum.) . 23 
" V. On status. {De statu hominum.) 24 

/ VI. On persons sui juris and alieni juris. {De his qui sui vel 

alieni juris sunt.) 28 

' VII. Concerning adoptions and emancipations and other methods by 
which 2)otestas is dissolved. {De adoptionibus et emanci- 
pationibus et aliis modis quibus potestas solritur.) . 31 

VIII. On the division of things and their respective natures. {De 

divisione rerum et qualitate.) 39 

IX. Concerning Senators. {De Setnitoribus.) 42 

X. On the office of Consul. {De officio Considis.) .... 45 

XI. On the office of Prsefectus Fraetorio. {De officio Prcefecti 

Prcetorio.) 45 

XII. On the oflice of Prsefectus Urbi. {De officio Prcefecti Urbi.) . 46 

XIII. On the office of Qusestor. {De officio Qucestoris.) . . . 4S 

XIV. On the office of the Prsetors. {De officio Prcvtorum.) . . 49 

XV. On the office of Prsefectus Vigilum. {De officio Prcefecti 

Vigilum.) «0 

XVI. On the office of Proconsul and Legate. {De officio Proconsulis 

et Legati.) 51 

XVII. On the office of Prsefectus Augustalis. {De officio Prcefecti 

Aug7istali.s:) 56 

XVIII. On the office of Prseses. {De officio Pra'sidis.) ... 56 
XIX. On the office of Imperial Procurator or Ratioualis. {De officio 

procuratoris Ccesaris vel Rationalis.) 62 

a 5 



X Contents 

PAGE 

XX. On the office of Juridicus. {De officio Juridici.) ... 63 

XXI. On the office of one to whom jurisdiction is delegated. {De 

officio ejus cut mandata est Jurisdictio.) .... 63 

XXII. On the office of assessors. {De officio Assessorum.) ... 65 

II. 

'^I. On Jurisdictio. {De Jurisdictione.) 66 

II. A man to be dealt with after the like rule to that which he 

maintained against another. {Quod quisque juris in 
alterum statuerit ut ipse eodem jure utatur.) . . 70 

III. Where a man refuses obedience to the magistrate exercising 

jurisdiction. {Si quis jus dicenti non obtemperarerit.) . 72 

IV. On citation. {De in jus vocando.) 73 

V. Where one who is cited fails to appear ; also where a man cites 

one whom, according to the Edict, he has no right to cite. 
{Si quis in jus meatus non ierit, sire quis eum eocaoerit 
quern ex Edicto non dehuerit.) 79 

VI. Persons cited bound to appear or else give a guarantee or an 

undertaking. {In jus vocati ut eant aut satis vel cautum 
dent.) 79 

VII. No one to release by force a man who is cited. {Ne quis eutn 

qui in jus eocahitur ci eximat.) 80 

VIII. What persons respectively are compelled to give a guarantee or 

promise on oath or are remitted to a simple promise. {Qui 
satisdare cogantur vel jurato promittant eel suw promis- 

sioni committantur.) 82 

IX. Nature of the undertaking given in the case of a no.xal action. 

{Si ex noxali causa agatur quemadmodura caceatur.) . 88 

X. On one who contrives that a defendant shall not appear. {De 

eo per quern factutn erit quominus quis in judicio sistat.) 90 

XI. Where a man fails to observe an undertaking to appear to an 

action. {Si quis cautionihus in judicio sistendi causa 
factis non obtemperabit.) 92 

XII. On fea.st-days, adjournments and difl'erent seasons. {De feriis 

et dilationibus el dieersis temporibus^ .... 98 

XIII. On statement of particulars and discovery of documents etc. 

{De edendo.) 101 

XIV. On pacts. {De pactis.) 108 

XV. On compromising and compounding. {De transactionibus.) . 130 

III. 

I. On motions. {De postulaiido.) 139 

II. On those marked with infamia. {De his qui notantur infamia.) 144 
III. On "procurators" and "defensors." {De procuratoribus et 

defensorihv^.) 153 



Contents xi 

PAGE 

IV. On proceedings taken on behalf of any corporation or against 
the same. {Quod cujiiscumque utiirersitatis nomine vel 

contra mm agatur.) 172 

' V. On we^oi^a ^«ste (voluntary agency). {De negotiis gestis.) . 175 

VI. On vexatious actions. {De calumniator ibus.) .... 197 

IV. 

I. On restitutions ^/^ iW^^r Mm. {De in integrum restitutionihus.) 201 

II. Acts done through fear. {Quod metus causa gestum erit.) . 203 

III. On dolus radius. {De dolo m^alo.) 215 

IV. On persons under twenty-five. {De minoribus viginti quinque 

annis.) 226 

V. On capitis m,inutio. {De capite minutis.) 253 

VI. Grounds on which restitution in integrum is allowed to persons 

over twenty-five years of age. {Ex quibus causis majores 
viginti quinque annis in integrum restituuntur.) . . 256 

VII. On transfers made for the purpose of varying the conditions of a 

trial. {De alienatione judicii mutandi causa facta.) . 270 

VIII. On matters referred ; on persons who undertake arbitrations 

with a view to pronouncing an award. {De receptis ; qui 
arbitrium receperint ut sententiam dicant.) . . . 274 
. IX. Seamen, innkeepers, stablekeepers to restore what they receive. 

{Nautce caupones stabularii ut recepta restituant?) . . 294 

V. 

I. On trials at law ; as to where a man ought to take proceedings 

or be sued. {De judiciis, ubi quisque agere vel coneeniri 

debeat.) 300 

II. On inofiicious testaments. {De inojfficioso testamento.) . . 320 

III. On the action for recovery of an inheritance. {De hereditatis 

petitione.) 335 

IV. On suits for parts of an inheritance. {Si 2^(1'^^ hereditatis 

petatur.) 365 

V. On the possessory petitio hereditatis. {De possessoria heredi- 
tatis petitione.) 370 

VI. On the fidei-commissary petitio hereditatis. {De fidei-com- 

missaria hereditatis petitione.) 370 

VI. 

I. On specific vindications. {De rei midicatione.) . . . 371 

II. On the Publician action in rem. {De Publiciana in rem actione.) 393 

III. On actions to recover vectigalian — that is emphyteutic — land. 

{Si ager cectigalis, id est emphgteuticarius, petatur.) . 399 



ERRATA. 



p. 13, 1. 17 from bottom of page, for entitled read intitled. 

p. 26, 11. 3, 5, for seven months read in the seventh month. 

p. 45, 1. 4, for [ ] read ( ). 

p. 67, 11. 9, 21, do. 

p. 76, 1. 6, do. 

p. 83, 11. 8, 10, do. 

p. 112, 1. 17 from bottom of page, for Mavius read Mcevius. 

p. 161, 1. 10 from bottom of page, for 6 read /;. 

p. 175, 1. 14, for [ ] read { ). 

p. 195, 1. 13, for Javolemus read Javolemis. 

p. 219, 11. 6, 7, for and so my case is read so as to have the application. 

p. 219, 1. 11, after collusion insert (si collusum est). 

p. 220, 1. 8, for prescriptis read prcescriptis. 

p. 222, 1. 19, del. that. 

p. 229, 1. 11 from bottom of page, insert comma at end of line. 

p. 255, s. 8, del. the first two commas. 

p. 276, 1. 14, for both sides read each side. 

p. 330, 11. 6, 7 from bottom of page, del. commas. 

p. 331, 1. 15, del. mark of interrogation. 

p. 354, 1. 7, after vendor insert mark of interrogation. 

p. 383, ). 6, after bequeatht, for the read a. 



XIU 



ON THE PLAN OF THE DIGEST. 



CONSTITUTIO DEO AUCTORE. 

The Emperor Ccesar Flavius Justinianus pious happy 
renowned conqueror and triumpher ever Augustus 
greets Triboniatius his qucestor. 

Governing under the authority of God our empire, which was 
delivered to us by His Heavenly Majesty, we prosecute wars with 
success, we adorn peace, we bear up the frame of the State, and we 
so lift up our minds in contemplation of the aid of the omnipotent 
Deity that we do not put our trust in our arms, nor in our soldiers, 
nor in our leaders in war, nor in our own skill, but we rest all our 
hopes in the providence of the Supreme Trinity alone, from whence 
proceeded the elements of the whole universe, and their disposition 
throughout the orb of the world was derived. 1. Whereas then 
there is in all things nothing found so worthy of respect as the 
authority of enacted law, which disposes well things both divine 
and human, and expels all iniquity, and yet we find the whole 
course of our statutes, such as they come down from the foundation 
of the city of Rome and from the days of Romulus, to be in a state 
of such confusion that they reach to an infinite length and surpass 
the bounds of all human capacity, it was therefore our first desire 
to make a beginning with the most sacred Emperors of old times, 
to amend their statutes, and to put them in a clear order, so that 
they might be collected together in one book, and, being divested 
of all superfluous repetition and most inequitable disagreement, 
might afford to all mankind the ready resource of their unalloyed 
character. 2. This work being accomplished and put together in 
one volume under our own brilliant name, hastening as we do to 
lift ourselves above scanty and somewhat unimportant matters and 
to arrive at the full and supreme amendment of the law, so as to 
amend and rearrange the entire Roman jurisprudence and to present 



xiv Constitutio Deo auctore 

in one volume the scattered books of a number of authors, a thing 
which no one ever dared to hope or to desire, the task appeared to 
us to be one of great difficulty, indeed to be impossible. However, 
we lifted our hands to Heaven, and, praying for the Eternal aid, 
we embraced this enterprise in our minds, trusting to God, who is 
able in the magnitude of His goodness to grant and complete 
achievements well-nigh desperate. 3. Hereupon we bethought us 
of the excellent service of your wholehearted character, and com- 
mitted to you before others this additional work, having received 
proofs of your ability from the composition of our Code, and we 
ordered you to choose as companions in your labour whomsoever 
you thought right out of the number of the accomplished pro- 
fessors as well as of the most eloquent of the robed men of the 
forum, men of the most honourable position. The above persons 
being accordingly got together and having been introduced into 
our palace and accepted favourably by us on the strength of your 
testimony, we have entrusted to them the execution of the entire 
plan, it being however understood that the whole should be carried 
out under the management of your most watchful mind. 4. You all 
therefore have our order to read and to work up the books dealing 
with Roman law left by the learned of old time to whom the most 
sacred Emperor allowed the privilege of writing and interpreting 
rules of law, so that the whole substance might be taken from 
them, all repetition and all discrepancy being as far as possible got 
rid of, and hereupon a single and sufficient result might be pre- 
sented in the place of the scattered materials which preceded. 
Whereas, on the other hand, other authors have written books 
dealing with law, but their writings have not been received or used 
by any later authorities, we ourselves are not concerned to let 
their works affect our resolution. 5. The above matter being 
composed under the Supreme indulgence of the Deity, it is only 
right to set it forth in a work of great beauty, consecrating thereby 
an apt and most holy temple of Justice, and to distribute the 
whole law into fifty books and distinct titles, in imitation of our 
Code of Imperial enactments and also of the Perpetual Edict, as 
far as this may prove in your opinion to be the more convenient 
course, so that there may be nothing left outside the above-men- 
tioned compilation, but the entire ancient law, in a state of confusion 
for some fourteen hundred years and now by us made clear, may 
be, so to speak, enclosed within a wall and have nothing left outside 
it ; all legal authors enjoying the same rank and no superior 
authority being kept for any one of them, since it cannot be said 



Constitutio Deo auctore xv 

that any of them are either better or worse in all respects, but only 
particular writers in particular respects. 6. You must however, 
when comparing a number of authors, not pronounce upon the 
work of one as better and juster, as it is possible for the opinion of 
one writer, and that one of inferior merit, to be preferable in some 
points to many and even better authors. For this reason opinions 
which are^ cited in the notes to JEmilius Papinianus, taken from 
Ulpianus and Paulus, not to speak of Marcianus, which once were 
allowed no weight in consequence of the honour due to the most 
renowned Papinianus, ought not to be at once rejected, but if you 
see that anything taken from them is necessary to supplement the 
labours of Papinianus of supreme genius or to interpret his writings, 
you must not hesitate to set it down as being as good as law ; so 
that all those most learned authors whose work is embodied in this 
book may have as much authority as if their lucubrations were 
derived from Imperial constitutions and had been uttered by our 
own divine mouth. We are justified in ascribing everything to 
ourselves, seeing that it is from us that all their authority is 
derived ; and one who amends anything which is done with a 
want of exactness deserves more credit than the original author. 
7. There is another thing of which we wish you to make a special 
object ; if you find anything in old books which is not well placed, 
anything superfluous or wanting in finish, you should get rid of 
unnecessary prolixity, fill up what is deficient, and present the 
whole work in apt form and with engaging appearance. You 
should at the same time further observe this ; if, in the ancient 
statutes and enactments which old writers cited in their books, you 
find anything expressed incorrectly, you must rectify it and put it 
in proper form, so that whatever is chosen and set down by you 
may be deemed genuine and the best version and be treated as 
if originally written, and no one is to take upon him by reference 
to the ancient text to argue that your version is faulty. Con- 
sidering indeed that by an ancient enactment, the so-called Lex 
Regia, all legal authority and all power vested in the Roman people 
were transferred to the Imperial Government, and we do not 
attribute our collective legislatorial sway to this and that source, 
but desire that it should be all our own, how can antiquity interfere 
with our legislation ? In fact, we desire that all the law referred 
to, when once set forth, should be so fully in force, that where 
anything was put in one way by the old writers, but appears to 

^ del. antea, M. 



xvi Constitutlo Deo auctore 

bear the opposite sense in our work, no fault should be found with 
the former, but the whole should be set down to our will and 
pleasure. 8. By this means, in all parts of our aforesaid Code 
there is to be no place allowed to any antinomy — such is the name 
used from old time, taken from the Greek language — but there 
must be full agreement, full consistency, and no one is to raise any 
dispute on the question. 9. Repetition too, as already said, we 
desire to be absent from a compilation such as this ; and any 
provisions that have been made by the most sacred ordinances, 
which we have inserted in our Code, we do not allow to be again 
set down as parts of the old law, seeing that the fiat of Imperial 
enactment is quite enough to give them authority ; unless indeed 
this should be done by way of contrast or of supplement or for 
more complete exactitude ; but even then it must be done very 
sparingly, lest, if this kind of exception is allowed, a certain amount 
of thorns may spring in such a meadow. 10. Again, if any rules 
included in the old books have by this time fallen into disuse, we 
by no means permit you to set them down, as we wish such rules 
only to be maintained as have been put in force in the most usual 
course of judicature, or have been approved by the long usage of 
this revered City, in accordance with the work of Salvius Julianus, 
which points out that all cities ought to follow the usage of Rome, 
the head of the world, and not Rome follow that of other cities. 
And by Rome we should understand not merely the old city, but 
our own royal city too, which, with the favour of God, was built with 
the best auguries. 11. We therefore order that everything should 
be governed by those two books, one that of Imperial enactments, 
the other that of the law consolidated and amended {jus enucleatum) 
and put together with a view to a book to be made ; adding any- 
thing else that may come to be published by us to serve the use of 
an educational work {lnstitutio7ies), in order that the immature 
mind of the student, being supplied with simple principles, may be 
the more easily brought to the comprehension of the higher learning. 
12. Our complete work, such as it will be composed by you with 
God's assistance, we command shall bear the name of Digest or 
Pandects, and no person learned in the law shall at any time 
venture to add any commentary thereto and upset by his own 
language the concise method of the said book, as was done in old 
time, when, by the contradictory opinions of expositors, the whole 
law was little short of being thrown into confusion : let it be 
enough to make some few corrections of it by notes and an 
ingenious use of titles, avoiding the occasioning of anything to be 



Constitutlo Deo auctore xvii 

complained of that might arise from the habit of interpreting. 

13. Lest moreover the writing itself should hereafter give rise to 
any ambiguity, we command that the text of the book shall not 
be written with the use of the trickery of ciphers and compendious 
conundrums, such as directly and by their mischievous character 
have occasioned many instances of antinomy, even where what is 
intended to be signified is the number of the book or some similar 
matter ; even such things we do not allow to be shown by 
special numerical figures, they must be set out in ordinary letters. 

14. All these things your Wisdom must, with the favour of God, 
endeavour to accomplish, together with other most able men, and 
bring it to a well-conceived and most speedy close, that the com- 
plete book, digested into fifty heads, may be put before us in strong 
and eternal memory of the matter in hand, in proof of the pro- 
vidence of Almighty God, to the glory of our rule and of your 
service. Given on the eighteenth day before the Calends of January 
at Constantinople ; in the consulship of the most honourable 
Lampadius and Orestes. 



XVlll 



CONSTITUTIO OMNEM. 

The Ennperor Caesar Flavins Justlnianus Alamannicus 
Gothicus Francicus Germanicus Anticus Alanicus 
Vandalicus Africanus pious happy renowned con- 
queror and triumpher ever Augustus to Theophilus 
Dorotheus Theodorus Isidorus Anatolius Thalelceus 
and Cratinus hotiourable men professors and to 
Salaniinius most eloquent man professor greeting. 

That the whole law of our State is now reformed and arranged 
partly in four books of institutes or elements, partly in fifty of 
digests or pandects, and further in twelve of Imperial enactments — 
who knows better than you do? and now indeed everything which 
it was requisite either to order at the beginning or to pronounce 
upon when all was complete, with willing acknowledgment of the 
fact, has been fully done by our speeches made both in the Greek 
tongue and in that of the Romans, which speeches we wish to be 
eternal. Whereas however you, being appointed professors of legal 
knowledge, ought to be acquainted with this too, what it is that we 
hold necessary to be conveyed to students and at what times, to 
the end that they may thereby be made most worthy and most 
learned, we therefore opine that the present divine address ought 
to be directed to you especially, so that your Wisdoms, and also 
other professors who may choose at any future time to follow the 
same course, may, by observing our rules, tread the distinguished 
path of legal erudition. Now it is without doubt necessary that 
elementary works {institutio7ies) should in all studies claim the 
first place, supplying as they do the first step in every branch of 
knowledge in a short form. Then, of the fifty books of our 
Digest, we hold that six-and-thirty alone are sufficient both for you 
to expound and for youthful students to use for the purpose of 
their education. But we ought in our opinion here to set forth 
the order of arrangement and the method which has to be followed, 
and to remind you of the things which you used to deliver of old, also, 



Constitutio Omnem xix 

with regard to our recent compilation, to state the way of applying it 
and the proper times, so that nothing relating to this duty may be 
left unknown. 1. Some while ago, as your Wisdoms are aware, out 
of all the immense multitude of rules, reaching to two thousand 
books and three million lines, students, under instruction from 
their teachers, generally made use of no more than simply six 
books, and those ill composed and containing very little law 
of any importance, everything else being disused and in fact 
inaccessible to everybody ; these six books included the Institutes 
of our master Gaius and four separate books, one on the old 
law of dotal gifts, another on guardianships, and a third, indeed 
a fourth, on testaments and legacies; and even these they did 
not use throughout ; there were large portions of them which they 
passed by as being superfluous. To students of the first year this 
work was not given in accordance with the order observed in the 
Perpetual Edict, but the subjects were arranged anyhow and all 
in confusion, matters practical and unpractical being mixed up, in 
fact the unpractical matters were allowed the larger space. In the 
second year the order adopted went the wrong way about, they 
were given the first part of the legal rules, some particular titles 
being left out, as it was an absurd thing after the Institutes to read 
anything else than what is placed first in the law and deserves 
to be called the first subject ; but after these titles had been 
gone through, though even these were not read from the beginning 
to the end, but a selection was made, and that for the most part of 
unpractical pieces, there were other titles set before the students, 
partly from that division of the law which is cdXl^d. judicia (actions 
at law), — these again not being taken from the beginning to the 
end, but only so as to afford a meagre catalogue of practical points, 
all the rest of the book being treated as of no consequence, — partly 
from that division which is called Things, consisting of seven books, 
in which once more a great many chapters were set on one side out 
of the way of the students, being regarded as unsatisfactory and 
not very well fitted for educational purposes. In the third year 
they had to take up such subjects in both works, I mean the 
book on Things and the book on Actions, as had not been given 
them in the second year, the two works being taken alternately; 
this furnishing an introduction which led to the most excellent 
Papinianus and his Responsa, which Responsa, taken all together, 
extend to nineteen books ; but of these they only took eight books, 
and not the whole contents even of these eight books ; out of a 
great number of rules expressed in ample detail, they were confined 



XX Co7istitutio Omnem 

to a few short extracts, so that they had to close the task with 
their thirst unslaked. The above being all which was given them 
by their teachers, the students used to read the Responsa of 
Paulus for themselves, not taking the whole of them, but adopting 
a fragmentary series which a bad custom recommended. Such 
was, up to the fourth year, all that was done towards acquiring 
a knowledge of ancient law, [and if j ^ any one wishes to consider 
what were tlie things which they read, he will find, on reckoning 
them up, that in that immense multitude of legal rules there were 
scarcely sixty thousand lines on their subject wliich they read 
through, all the rest being left remote and unknown, and being 
only held worthy of attention to some very small extent when 
either it was required in the course of an action, or you yourselves, 
masters in the law, made a point of reading them, so that you might 
have something better to show in the way of knowledge on the part 
of your pupils. The above then sets forth the method of education 
in old days, as is fully shown by your report. 2. We however, 
observing this meagre provision of rules of law, and deeming it a 
very miserable state of things, propose to display the treasures of 
law to such as desire to behold them, so that, when your Wisdoms 
have in some wise turned them to due account, your pupils may 
become amply endowed legal pleaders. Accordingly in the first 
year they must [to begin with] take in our Institutes, derived 
as these are from almost the whole body of the old institutional 
works and conducted into one clear reservoir out of all their muddy 
sources by the agency of Tribonianus, that most distingTiished man 
and magistrate, ex-qusestor of our sacred palace and ex-consul, 
also by the agency of two of your number, Theophilus and Doro- 
theus, most able professors. For the rest of the year we order, in 
accordance with a very good principle of arrangement, that there 
should be given them the first portion of the law, which is called 
by the Greek name 7rp6)ra, there being nothing before it, as, in 
fact, whatever is ^/irst cannot have anything else preceding it. 
Such, we lay down, is to be the beginning and the conclusion of 
the first year's education ; and we think proper that those who 
take it shall not be called by the silly and ridiculous name of Two- 
pounders (dupofidii) ; they are to be styled New Justinians, 
which appellation, so we decree, is to be used for all time to come, 
so that those i)ersons who, while yet untaught, aspire to the know- 
ledge of law and choose to accept the enactments of tlie earlier 
year may take our name, seeing that the first book is to be given 

1 Cf. M. 



Constitutio Omnem xxi 

to them at once, which was published by our authorit}^ The name 
they used to bear was in keeping with the ancient state of con- 
fusion in which the law used to be, but now that it is clearly and 
distinctly presented, so that it can be easily conveyed to their 
minds, it seems requisite that they should enjoy distinction under 
another name. 3. In the second year, for which another name has 
been already given them by a decree, and one of which we approve, 
we ordain that they should take either the seven books on Actions 
or the eight on Things, according as the alternation of time allows, 
which alternation we wish to be maintained untouched. They 
must take these books, both of Actions and Things, from beginning 
to end, and in their proper order, none of them being omitted, 
as everything is invested with an elegance unknown before, and 
nothing unpractical or obsolete is to be found in them. To each 
of these books, whichever is taken, the one on Actions or the one 
on Things, we desire should be added for the second year's course 
four works in one book each, which we have chosen out of the 
whole compilation of fourteen books, one being taken from the 
larger work in three books compiled by us on the subject of 
dos, one from the two books on guardianships and curatorships, 
one from the work in two parts on testaments, and, from the 
seven books on legacies and ^deicommissa (testamentary trusts) 
and subjects connected therewith, again one only. Thus those four 
books which we have put at the head of the particular compilations 
named above are the only ones which we wish you to put before 
them ; the other ten you must keep back for a convenient occasion, 
as it is impossible, indeed the second year is too short a time, for 
the study of these books to be instilled into them by a master's 
instruction. 4. After this the course of the third year is to be as 
follows. Whether it happens to the pupils, as the turn comes, to 
read the book on Actions or the book on Things, there must be 
taken at the same time the threefold arrangement of books on law, 
each being on one subject; in the first place there is to be one 
separate work on the hypothecarian formula, which we have put 
in the best place for it, namely in the part where we deal with 
hypotheks, so that, competing as it does with actions on pledge, 
which come in the books on Things, it may not shun their vicinity, 
both of them really dealing with much the same subject. After 
this separate work another similar one is to be put before them, 
compiled by us on the Edict of the ^diles, on the Redhibitorian 
action, on actions for recovery of property, and lastly on the stipu- 
lation for double the price, seeing that whereas legal provisions 

M. J. b 



xxii Co7istitutio Omnem 

relative to purchase and sale are conspicuous in the books about 
Things, but all the definitions, as we called them, were placed in the 
last part of the former edict, we were obliged to transfer them to 
the earlier position, lest they should wander further away from the 
neighbourhood of Sale to which they are, so to speak, ancillary. 
To these three books we have joined the study of that most acute 
la\vyer, Papinianus, whose works students used to take in their 
third year, though they did not go through the whole series, but, 
here as well as before, had a few examples given them out of 
many, selected here and there. With you however that excellent 
author himself will be open for perusal, not only in respect of his 
Responsa, compiled in nineteen books, but also in the thirty-seven 
books of questions, the two books of definitions, besides the book 
on adultery, in fact in pretty well the whole of his dissertations 
throughout the entire array of our Digest in which he excels in 
his own special portions. Then, lest the third-year students, the 
Papinianists, as they are called, should seem to lose their author's 
name and grace of expression, he has again been introduced for 
the third year by a most exquisite method, as the book about 
h}T)otheks is one which we had filled throughout with passages 
fi'om the same excellent Papinianus, so that the pupils may take 
their name from this fact and be called Papinianists, and may 
rejoice in memory of him, observing the festal day which they used 
to celebrate when they first took his rules of law, and even by this 
means the memory of that most sublime prsefectorian may abide 
for ever, and the course of study for the third year may hereupon 
close. 5. Next, seeing that it is usual for the students in the fourth 
year to go by the conventional Greek name \vrat, they can, if 
they like, keep this title ; but instead of the Responsa of the most 
learned Paulus, which at one time they used to take in barely 
eighteen books instead of twenty-three, reading them in the con- 
fused way already mentioned, let them now turn all their attention 
to the ten separate works which remain out of the fourteen which 
we have already described, by which they will acquire a store of 
knowledge much larger and fuller than they ever got from the 
Responsa of Paulus. By this means the whole compilation of 
separate books put together by us and divided into seventeen will 
be taken home in their minds, such as we have set it down in two 
parts of the Digest, the fifth and sixth, according to the division 
into seven parts ; and what was said at the beginning of my address 
will be found to be true, the object being to make the youths 
perfect after studying the thirty-six books as well as equipped for 



Constitutio Oynnem xxiii 

every legal purpose and not unworthy of our days. Two other 
parts of our Digest, the sixth and seventh, which are arranged in 
fourteen books, must be laid on one side, so that they can at a 
later time both study them and display their knowledge of them in 
Court. If they studiously imbue themselves with these and take 
pains both to read and thoroughly to understand the Code of 
Imperial statutes by the end of the fifth year, in which they are 
called prolytce, they will want for nothing in legal knowledge, but 
will embrace the whole of it from the beginning to the end in their 
minds, and, though this is the case with no other of the branches 
of learning, the number of which is infinite, however worthless any 
may be, this study by itself will be carried forward to an admirable 
conclusion which it now receives at our hands. 6. Accordingly, when 
all these legal secrets are disclosed, nothing will be hidden from 
the students, and, after reading through all the works put together 
by us by the hands of the eminent Tribonianus and the others, 
they will turn out distinguished pleaders and servants of justice, 
and, both for contending in cases and for deciding them, they will 
be the ablest of men and successful in all times and places. 
7. These three works which we have composed we desire should 
be put in their hands in royal cities as well as in the most fair city 
of Berytus, which may well be styled the nursing mother of law, as 
indeed previous Emperors have commanded, but in no other places 
which did not enjoy the same privilege in old times, as we have 
heard that even in the brilliant city of Alexandria, and in Csesarea 
and others, there have been ignorant men who, instead of doing 
their duty, conveyed spurious lessons to their pupils, and such as 
these we desire to make desist from that attempt by laying down 
the above limits, so that, if they should hereafter be guilty of such 
conduct and carry on their duties outside the royal cities and the 
metropolis Berytus, they may be punished by a fine of ten pounds 
of gold and be expelled from the city in which instead of teaching 
the law they transgress the law. 8. There is another thing which 
we mentioned, both in the address which we delivered on first 
appointing commissioners for the compilation of this book and also 
in another ordinance issued by our Divinity after its completion, 
and whicli we may suitably issue now, namely that no one of those 
who compose these books is to venture to make any private ciphers 
in them, nor, by way of saving time, to throw difficulty in the way 
of the interpretation and compilation of the rules, and I wish all 
clerks who may at any time in future commit such an offence to 
know that, besides incurring the criminal fine, they will be com- 

&2 



xxiv Constitutio Omnem 

pellable to pay twice the value of the book to its owner, if they 
hand it to an innocent person, seeing that the very purchaser of 
such a book can set no value on it, as no judge will allow anything 
to be quoted from it, but will order that it should be treated as 
non-existing. 9. Next there is a very necessary order which we 
make by way of very strong prohibition, that none, either in this 
renowned city or in the fair town of Berytus, among those who are 
prosecuting legal studies, shall perpetrate unworthy, indeed most 
oifensive, or I should rather say slavish, jokes, to carry out which 
is an illegal act, either against the professors themselves or their 
companions, and still more against those who attempt the study of 
law when fresh to the work. How indeed can the word 'joke ' be 
used of what leads to criminal acts ? Such conduct we do not by 
any means allow ; and this whole branch of the matter we put 
under strict rule for our own days and transmit it to all future 
time, as it is right that our souls should be educated first, and then 
our tongues. 10. All the foregoing, so far as this most prosperous 
city is concerned, the eminent man who is prefect of this genial 
city must take care both to observe and to enforce, according to 
what is required by the nature of the ofience in the case both of 
students and writers ; in the city of Berytus this duty falls both 
on the illustrious governor of the Punic shore and the most blessed 
bishop and the legal professors of that city. 11. Begin now there- 
fore to deliver to the students legal learning under the governance 
of God and to open up the way found by us, so that they may 
become the best ministers of justice and of the State, and that the 
greatest possible honour may attend you for all ages to come ; the 
fact being that in your day there has been devised an exchange of 
law such as we read in Homer, that originator of all virtue, to have 
been mutually made by Glaucus and Diomedes when they ex- 
changed two unlike things. 

Gold for brass, a hundred kine 

The worth of what was given for nine. 

All this we order shall be in force for ever, to be observed by all, 
both professors and students of the law and clerks, by these and 
the judges likewise. Given on the seventeenth day before the 
kalends of January at Constantinople, our master Justinianus ever 
Augustus being consul the third time. 



XXV 



ON THE CONFIRMATION OF THE DIGEST. 

CONSTITUTIO TANTA. 

In the name of our Lord God Jesus Christ. 

The Emperor Ccesar Flavins Jnstlnianns Alamannicus 
Gothicus Francicus Germanicus Anticus Alanicns 
Vandalicus Africanus pious happif renowned con- 
queror and triumpher ever Augustus to the Senate 
and to all peoples. 

So great in our behalf is the foresight of Divine Humanity that 
it ever deigns to support us with eternal acts of liberality. After 
the Parthian wars were hushed in eternal peace, after the nation 
of the Vandals Avas destroyed ^ and Carthage, nay rather all Libya, 
was again taken into the Roman Empire, then I contrived also that 
the ancient laws, already bowed down with age, should by my care 
reach new beauty and come witliin moderate bounds ; a thing 
which before our command none ever expected or deemed to be 
at all possible for human endeavour. It was indeed a wondrous 
achievement when Roman jurisprudence from the time of the 
building of the city to that of our rule, which period well-nigh 
reaches to one thousand and four hundred years, had been shaken 
with intestine war and infected the Imperial legislation with the 
same mischief, to bring it nevertheless into one harmonious system, 
so that it should present no contradiction, no repetition and no 
approach to repetition, and that nowhere should two enactments 
appear dealing with one question. This was indeed proper for 
Heavenly Providence, but in no way possible to the weakness of 
man. We therefore have after our wont fixed our eyes on the aid 
of Immortality, and, calling on the Supreme Deity, we have desired 
that God should be made the originator and the guardian of the 
wliole work, and we have entrusted the entire task to Tribonianus, 

^ For ereptam read peremptam, M. 



xxvi Constitutio Tanta 

a most distinguished man, Master of the Offices, ex-quaestor of our 
sacred palace and ex-consul, and we have laid on him the whole 
service of the enterprise described, so that with other illustrious 
and most learned colleagues he might fulfil our desire. Besides 
this, our Majesty, ever investigating and scrutinizing the composition 
of these men, whensoever anything was found doubtful or uncertain, 
in reliance on the heavenly Divinity, amended it and reduced it to 
suitable shape. Thus all has been done by our Lord and God 
Jesus Christ, who vouchsafed the means of success both to us and 
to our servants herein. 1. Now the Imperial statutes we have 
already placed, arranged in twelve books, in the Code which is 
illuminated with our name. After this, undertaking a very great 
work, we allowed the same exalted man both to collect together 
and to submit to certain modifications the very most important 
works of old times, thoroughly intermixed and broken up as they 
may almost be called. But in the midst of our careful researches, 
it was intimated to us by the said exalted person that there 
were nearly two thousand books written by the old lawyers, 
and more than three million lines were left us by them, all of 
which it was requisite to read and carefully consider and out 
of them to select whatever might be best. This, by the grace of 
Heaven and the favour of the Supreme Trinity, was accomplished 
in accordance with our instructions such as we gave at the outset 
to the exalted man above mentioned, so that everything of great 
importance was collected into fifty books, and all ambiguities were 
settled, without any refractory passage being left. We gave these 
books the name of Digest or Pandects, for the reason that they 
have within them all matters of question and the legal decision 
thereof, having taken to their bosom things collected from all sides, 
so that they conclude the whole task in the space of about one 
hundred and fifty thousand lines. We have divided the books into 
seven parts, not incorrectly nor without reason, but in regard of 
the nature and use of numbers and in order to make a division of 
parts in keeping therewith. 2. Accordingly, the first part of the 
whole frame, wldch part is called irpoira, after the Greek word, 
comes by itself in four books. 3. The second link has seven books, 
which are called de judiciis (on trials at law) . 4. In the third 
group we have put all that comes under the title de rebus (on 
things), the same having eight books assigned to it. 5. The fourth 
place, which amounts to a sort of kernel of the whole compila- 
tion, takes eight books. This contains everything that relates to 
hypothek, so that the subject does not difier very much from the 



Constitutio Tanta xxvii 

actio pigneratitia (action to redeem, etc.), and another book is 
inserted in the same volume which has the Edict of the Edile and 
the Redhibitorian action and the stipulation for returning double 
the price received, which is matter of law in case of an evictio 
(recovery of property on the ground of ownership), the fact being 
that these matters are connected with the subject of purchase and 
sale, and the aforesaid actions were always closely attendant on 
those last topics. It is true that, in the scheme of thfe old Edict, 
they wandered oif into out-of-the-way places widely apart from 
one another, but by our care they are put in the same group, as it 
is only right that discussions on almost identical subjects should be 
put close together. Then another book has been devised by us 
to follow the two first to deal with interest on money and with 
trajectitia pecunia (bottomry loans), also on documents of title, on 
witnesses, on proof, and therewith on presumptions, which three 
separate books are placed close to the portion dealing mth things. 
After these we have assigned a place to the rules laid down any- 
where as to betrothals, marriages, and dowries, all which we have 
set forth within three volumes. On guardianship and curatorship 
we have composed two books. This framework, consisting of eight 
books, we have set down in the middle of the whole work, and it 
contains all the most practical and best expressed rules collected 
from all quarters. 6. We then come to the fifth article of our 
Digest, to which the reader will find consigned whatsoever was 
said of old time on the subject of testaments and codicils, both of 
ordinary persons and soldiers ; this article is called "On Testaments." 
Next comes the subject of legacies andjideicommissa (testamentary 
trusts), in books five in number. Qa. And as there is nothing so closely 
bound up with anything else as an account of the lex Falcidia 
with legacies, or of the Senatusconsidtum Trebellianum with Jldei- 
comm/issa, we appropriate two books to these respective subjects, 
and thus complete the whole fifth part in nine books. We have 
not thought proper to put anything besides the Senatusconsultum 
Trebellianum, because, as to the stumblingblocks and obscurities 
of the Senatusconsultum Pegasianum, which the very ancients 
themselves were disgusted with, and their nice and superfluous 
distinctions, we desire to be rid of them, and we have included 
all the law we lay down on the subject in the Trebellianum. 
66. In all this we have said nothing about caduca (escheats), lest a 
head of law which, in the midst of unprosperous courses and bad 
times for Rome, grew in importance with public distress, and drew 
strength from civil war, should remain in our day when our reign 



xxviii Constitutio Tarda 

is strengthened by Divine favour and a flourishing peace and placed 
above all nations in the matter of the perils of war, and thus a 
melancholy reminiscence should be allowed to cast a shadow on a 
joyful age. 7. Next we have before us the sixth part of the 
Digest, in which are placed all kinds of honorum possessio, whether 
they relate to freeborn persons or freedmen, and herein the whole 
law concerned with degrees of relationship and with connexion by 
marriage, also statutable heritage and succession ab Intestato in 
general and the Senatuseonsultum Tertullianum or Orjitianum, 
which respectively regulate the succession of children to their 
mother, and mothers to their children. We have assigned two 
books to all the varieties of honorum possessio and reduced the 
whole to a clear and compendious sclieme. 7ct. After this we take 
the things laid down by old authors as to operis novi nuntiatio 
(notification of novel structure), as to the damnum infectum 
(apprehended mischief), also for the case of the destruction of 
buildings or the same being threatened, also as to the keeping off" 
of rainwater ; further we take whatever we find provided by statute 
relating to publicani as well as to the making of voluntary gifts 
both inter vivos and mortis causa, all which we have put in a 
single book. 7h. For manumissions and trials as to liberty, these 
are the subject of another book, (76*) and again on questions as to 
property and possession there are many discursive passages put in 
a single volume, {7d) while a further book is assigned to the subject 
of persons who have suffered judgment or have confessed in jure 
(in the pleadings), also of detention of goods and sales thereof (for 
insolvency), and as to the preventing of frauds on creditors. 7e. 
After this. Interdicts are dealt with in the lump, then come 
exceptiones (pleas), and there is again a separate book embracing 
the subject of lapse of time and obligations and actions ; the 
result being that the above-mentioned sixth part of the whole 
volume of the Digest is kept within eight books. 8. Tlie seventh 
and last division of the Digest is made up of six books, and all 
the law that is met witli as to stipulations or verbal obligations, as 
to sureties and mandatores (persons who request an advance to be 
made to another), also novations, discharges of debt, formal receipts 
and praitorian stipulations is set down in two volumes, which it 
was impossible so much as to reckon among the number of ancient 
books. 8a. After this we have put two terrifying books on the 
subject of private and extraordinary offences and also of public 
crimes, in which are described the whole severe treatment and 
awful penal measures applied to criminals, mixed with which are 



Constitutio Tanta xxix 

the provisions which have been made as to incorrigible men who 
endeavour to conceal themselves and who resist authority, also the 
matter of penalties such as are imposed on condemned persons, or 
remitted, and the subject of their property. 86. Next we have 
devised a separate book on appeals from judgments delivered by 
way of deciding either civil or criminal cases, 8c. and whatever 
else we find devised by the ancients and strictly laid down for 
municipal authorities or with relation to decurions or to public 
offices or public works or nundinw (right of market), or promises or 
different kinds of trials or assessments or the meaning of words, — 
all these are taken into the fiftieth book, which closes the whole 
compilation. 9. The whole of the above has been completed by the 
agency of the eminent man and most learned magistrate Tribonianus, 
ex-qu8estor and ex-consul, a man adorned alike with the arts of 
eloquence and of legal science, as well as distinguished in practical 
life, and one who has no greater or dearer object than obedience to 
our commands : other brilliant and hardworking persons have co- 
operated, such as Constantinus, that illustrious man, Count of 
the Sacred Largesses and Master of the Office of Libels and Sacred 
inquiries, who has long deserved our esteem from his good repute 
and distinction ; also Theophilus, an illustrious man, a magistrate 
and learned in the law, who wields admirably the best sway in the 
law over this brilliant city ; Dorotheus, an illustrious man, of great 
eloquence and qusestorian rank, whom, when he was engaged in 
delivering the law to students in the most brilliant city of Berytus, 
we, moved by his great reputation and renown, summoned to our 
presence and made to share in the work in question ; again, 
Anatolius, an illustrious person, a magistrate, who, like the last, 
was invited to this work when acting as an exponent of law at 
Berytus, a man who came of an ancient stock, as both his father 
Leontius and his grandfather Eudoxius left behind them an excellent 
report in respect of legal learning ; also Cratinus, an illustrious 
person. Count of the Sacred Largesses, who was once a most efficient 
professor of this revered city. All these were chosen for the above- 
mentioned work, together with Stephanus, Mena, Prosdocius, 
Eutolmius, Timotheus, Leonides, Leontius, Plato, Jacobus, Con- 
stantinus, Johannes, most learned men, who are of counsel at the 
supreme seat of the Prsefecture, which is at the head of the eastern 
prwtoria, but who derive a testimony to their excellence from all 
quarters and were chosen by us for the completion of so great a 
work. Thus, all the above having met together under the guidance 
of the eminent Tribonianus, so as to accomplish this great work in 



XXX Constitutio Tanta 

pursuance of our commission, the whole was by Divine favour com- 
pleted in fifty books. 10. Herein we had so much respect for 
ancient authority that we by no means have suffered them to con- 
sign to oblivion the names of those learned in the law ; everyone 
of the old lawyers who wrote on law has been mentioned in our 
Digest ; all that we did was to provide that if, in the rules given 
by them, there appeared to be anything superfluous or imperfect 
or of small importance, it should be amplified or curtailed to the 
requisite extent and be reduced to the most correct form ; and in 
many cases of repetition or contradiction what appeared to be better 
has been set down instead of any other reading and included under 
one authority thus given to the whole, so that whatever has now 
been written may appear clearly to be ours and to be composed by 
our order, none being at liberty to compare the ancient text with 
what our authority has introduced, as in fact there have been many 
very important transformations made on the ground of practical 
utility. It goes as far as this, that where an Imperial enactment is 
set down in the old books, we have not spared even this, but 
resolved to correct it and put it in better form ; leaving the very 
names of the old authority, but preserving by our emendations 
whatever the real sense of the statutes made suitable and necessary. 
Hence it came to pass that where of old there was any matter of 
doubt the question has now become quite safe and undisturbed, 
and no room for hesitation is left. 11. We saw however that the 
burden of all this mass of knowledge is more tlian such men are 
equal to bearing as are insufficiently educated and are standing in 
the vestibules of law, though on their way towards the secrets 
thereof, and we therefore were of opinion that a further compendious 
summary^ should be prepared, so that, thereby tinctured and so 
to speak imbued with the first elements of the wliole subject, they 
might proceed to the innermost recesses thereof and take in with 
eyes undazzled the exquisite beauty of the law. We therefore 
summoned Tribonianus, that eminent man who had been chosen 
for the direction of the whole work, also Theophilus and Dorotheus, 
illustrious persons and most eloquent professors, and commissioned 
them to collect one by one the books composed by old authors in 
which the first principles were to be found, and thereupon, what- 
ever they found in them that was useful and most to the purpose 
and polished in every point of view and in accordance with the 
practice of the present age, all this they were to endeavour to grasp 
and to put it into four books, so as to lay the first foundations and 
^ mediocris emendatio. Gr. fitTpia tla-ayayrj. 



Constitutio Tanta xxxi 

principles of education in general, and thus enable young men, 
supported thereon, to be ready for weightier and more perfect 
rules of law. We instructed them at the same time to bear in 
mind our own Constitutions as well, which we have issued with a view 
to the amendment of the law, and, in composing the Institutes, not 
to omit to insert the same improvement, so that it should be clear 
both where there had been any doubt previously, and what points 
had been afterwards established. The whole work, as accomplished 
by these men, was put before us and read through ; whereupon we 
received it willingly and judged it to be not unworthy of our mind, 
and we ordered that the books should be equivalent to enactments 
of our own, as is more plainly declared in our own address which 
we have placed at the beginning of the whole. 1 2. The whole frame 
of Roman law being thus set forth and completed in three divisions, 
viz. one of the Institutes, one of the Digest or Pandects, and lastly 
one of the Constitutions, all being concluded in three years, whereas 
when the work was first taken in hand it was not expected to be 
finished in ten years, we ofiered this work too with dutiful intent 
to Almighty God for the preservation of mankind, and rendered 
full thanks to the Supreme Deity who vouchsafed us successful 
waging of war and the enjoyment of honourable peace and the 
giving of the best laws, not only for our own age, but for all time, 
both present and future. Therefore we saw it to be necessary that 
we should make manifest the same system of law to all men, to the 
end that they should recognise the endless confusion in which the 
law was, and the judicious and lawful exactitude to which it had 
been brought, and that they might in future have laws which were 
both direct and compendious within every one's reach, and of such 
a nature as to make it easy to possess the books which contained 
them. Our object was that people should not simply be able by 
spending a whole mass of wealth to procure volumes containing a 
superfluous quantity of legal rules, but the means of purchasing at 
a trifling price should be offered both to rich and poor, a great 
deal of learning being procurable with a very small outlay. 
13. Should it chance that here and there, in so great a collection 
of legal rules, taken as it is from an immense number of books, 
some cases of repetition should occur, this no one must be severe 
upon ; it should rather be ascribed first of all to human weak- 
ness, which is part of our nature, as indeed it belongs rather to 
the Deity than to mortal man to have a memory for all things 
and to come short in nothing, as indeed was said of old. It 
should also be borne in mind that there are some rules of exceeding 



xxxii Constitutio Tanta 

brevity in which repetition may be admitted to good purpose, and 
it has been practised in accordance with our deliberate intent, the 
fact being that either the rule was so material that it had to be 
referred to under different heads of inquiry, because the two 
subjects were connected together, or else, where it was involved in 
other different inquiries, it was impossible to exclude it from some 
passages without throwing the M'hole into confusion. And in these 
passages, in which there were well-reasoned arguments set forth by 
the old writers, it would be altogether an unlawyerlike proceeding 
to cut out and get rid of something that was inserted in one after 
another, as it would confuse the mind and sound absurd to the 
ears of anyone to whom it was presented. 14. In like manner, 
where any provision has been made by Imperial enactment, we 
have by no means allowed it to be put in the book of the Digest, 
as the reading of such enactments is all that is wanted ; save where 
this too is done for the same reasons as those for which repetition 
is admitted. 15. As for any contradiction occurring in this book, 
none such has any claim to a place in it, nor will any be found, if 
we consider nicely the grounds of diversity ; some special differential 
feature will be discovered, however obscure, which does away with 
the imputation of inconsistency, puts a different complexion on the 
matter and keeps it outside the limits of discrepancy. 16. Again 
should anything happen to be passed over which, among so many 
thousand things, Avas, so to speak, placed in the depth and lying hid, 
and being fit to be so [placed], [still] was covered with darkness 
and unavoidably was left out, who could Avith reason find fault 
with this, considering in the first place how limited is the mind of 
mortal man, and secondly the intrinsic difficulty of the case, where 
the passage, being closely bound up with a number of useless ones, 
gave the reader no opportunity of detaching it from the rest? It 
may be added too that it is much better that a few valuable 
passages sliould escape notice than that people should be 
encumbered with a quantity of useless matter. 17. There is one 
very remarkable f\ict which comes to light in these books, namely, 
that the old books, plentiful as they Avere, are found to be of smaller 
compass than tlie more compendious supply noAv open. The fact 
is that the men who carried on actions at laAv in the old days, in 
spite of the number of rules of law that had been laid down, still 
only made use of a few of them in the course of the trial, either 
because of a deficient supply of books, which it was out of their 
power to procure, or simply owing to their oAvn ignorance ; and 
cases were decided according to the good pleasure of the judge 



Constitutio Tanta xxxiii 

rather than hy the letter of the law. In the present compilation, 
I mean in our Digest, the law is got together from numerous 
volumes, the very names of which the men of old could not tell, or 
rather had never heard ; and the whole has been composed with 
an ample supply of matter in such sort that the ancient plenty 
appears defective while our own compendious collection is very 
rich. Of this ancient learning Tribonianus, most excellent man, 
has furnished us with a very large supply of books, a number of 
which were unknown even to the most erudite men ; these were 
read through, and all the most valuable passages were extracted 
and found their way into our own excellent work. But the authors 
of this composition did not peruse those books only from which 
they took the rules they have set down ; they read a great deal 
more, in which they found nothing of value or nothing new which 
they could extract and insert in our Digest, and which accordingly 
they very reasonably rejected. 18. Now whatever is divine is 
absolutely perfect, but the character of human law is to be con- 
stantly hurrying on, and no part of it is there which can abide for 
ever, as nature is ever eager to produce new forms, so that we fully 
anticipate that emergencies may hereafter arise which are not 
enclosed in the bonds of legal rules. Wherever any such case 
arises, let the August remedy be sought, as in truth God set the 
Imperial dispensation at the head of human affairs to this end, 
that it should be in a position, whenever a novel contingency 
arrives, to meet the same with amendment and arrangement, 
and to put it under apt form and regulations. We are not 
the first to enunciate this, it comes of an ancient stock ; Julianus 
himself, that most acute framer of statutes and of the Perpetual 
Edict, set down in his own writings that wherever anything 
should turn out defective, the want should be supplied by Imperial 
legislation. Indeed not only he but the Divine Hadrianus, in 
the consolidated Edict and the Senatusconsultiim which followed 
it, laid down in the clearest terms that where anything was not 
found to be set down in the Edict, later authority might meet the 
defect in accordance with tlie rules, the aims and the analogy 
thereof. 19. Now therefore, conscript fathers and all men in the 
whole world, render fullest thanks to the Supreme Divinity, who 
has kept so greatly beneficial a work for your times : in truth, that 
of which those of old time were not in the Divine judgment held 
to be worthy has been vouchsafed to your age. Worship therefore 
and keep these laws, and let the ancient ones sleep ; and let none 
of you so much as compare them with the former ones, nor, if 



xxxiv Constitutio Tanta 

there be any discrepancy between them, ask any question, seeing 
that, whatsoever is set down here, we desire that it alone should be 
observed. Moreover in every trial or other contest, where rules of 
law have to be enforced, let no one seek to quote or maintain any 
rule of law save as taken from the above-mentioned Institutes or 
our Digest or Ordinances such as composed and promulgated by 
us, unless he wish to have to meet a charge of forgery as an 
adulterator, together with the judge who allows such things to be 
heard, and to suffer most severe penalties. 20. Lest however it 
should be unknown to you what those books of old lawyers are 
from which this composition is taken, we have ordered that this 
likewise should be set down at the beginning of our Digest, so that 
it may be quite clear who are the authorities and which are the 
books written by them, and how many thousands of these there are 
on which this temple of Roman jurisprudence has been constructed. 
20a. Of legal authorities or commentators we have chosen those 
who were worthy of so great a work as this, and whom older most 
devoted Emperors did not scorn to admit ; we have given all of 
them one pinnacle of rank, and none is allowed to claim any pre- 
eminence for himself. Indeed, seeing that we have laid down that 
the present laws themselves should be equivalent to enactments 
issued by us, how should any greater or less importance be 
attributed to any amongst them, where one rank and one authority 
is vouchsafed to all? 21. One thing there is which, as it seemed 
good to us at the very beginning, when with the Divine sanction 
we commissioned the execution of this work, so it seems opportune 
to us to command now also ; this, namely, that no man of those 
who either at this day are learned in the law or hereafter shall be 
such shall venture to append any commentary to these laws, save 
so far as this, that he may translate them into the Greek tongue 
with the same order and sequence as those in which the Roman 
text is written, or, as the Greeks call it, Kara iroha, or, if he likes to 
make any notes for difficulties in the various titles, he may compose 
what are commonly called TrapdrtrXa. Any further interpretations, 
or rather perversions, of these rules of law we will not allow them 
to exhibit, for fear lest their long dissertations cause such confusion 
as to bring some discredit on our legislation. This happened in 
the case of the old commentators on the Edictum perpetuum, for, 
although that work was composed in a compendious form, these 
men, by extending in this way and that to divers intents, drew it 
out beyond all bounds so as to bring almost all Roman law into 
confusion ; and, if we do not put up with them, how can we ever 



Constittitio Tanta xxxv 

allow room for the vain disputes of future generations? If any 
should venture to do such things, they will themselves be liable to 
be prosecuted for forgery, but their books will be altogether set at 
nought. But if, as before said, anything should appear doubtful, 
this must be by the judges referred to the Imperial Majesty, and 
the truth be pronounced on the Augustal authority, to which alone 
it belongs both to make and to interpret laws. 22. We lay down 
also the same penalty on the ground of forgery for those persons 
who at any future time should venture to write down our laws by 
the occult means of ciphers. We desire that everything, the names 
of authors as well as the titles and numbers of the books, should 
be plainly given in so many letters and not by means of marks, so 
that anyone who gets for himself one of these books in which 
there are marks used in any passage whatever of the book or 
volume will have to understand that the codex which he owns 
is useless ; if anyone has these objectionable marks in any part of 
a codex such as described, we decline to aUow him to cite any 
passage therefrom in Court ; and a clerk who should venture to 
write such marks will not only be punished criminally, as already 
mentioned, but he will also have to give the owner twice the value 
of the book, if the owner himself either bought such a book or 
ordered it to be written without notice. This provision has already 
been issued by us both in a Latin enactment and in Greek and sent 
to the professors of law. 23. These our laws, which we have set 
down in these books, I mean the Institutes or Elements and the 
Digest or Pandects, we desire should be in force from and after 
our third most happy Consulship, on the third day before the 
Kalends of January in the present twelfth Indiction, laws which 
are to hold good for all time to come, and which, while in force 
together with our own ordinances, may display their own cogency in 
the Courts in all causes, whether they arise at some future time or 
are still pending in the Court, because they have not been settled 
by any judgment or terms of arrangement. Any cases that have 
been disposed of by judicial decree or set at rest by friendly 
compromise we do not by any means wish to have stirred up again. 
We have done well to make a point of bringing out this body of 
law in our third Consulship, as that Consulship is the happiest one 
which the favour of Almighty God and of our Lord Jesus Christ 
has given to our State ; in it the Parthian wars were put an end to 
and consigned to lasting rest, moreover the third division of the 
world came under our sway, as, after Europe and Asia, all Libya 
too was added to our dominions, and now a final completion is 



xxxvi Constitutio Tanta 

made of the great work on our law, [so that] all the gifts of Heaven 
have been poured on our third Consulship. 24. Now therefore let 
all our judges in their respective jurisdictions take up this law, and 
both within their own provinces and in this royal city observe and 
apply it, more especially that distinguished man the Prefect of this 
revered city. It will be the duty of the three distinguished 
Pretorian Prefects, the Oriental, the Illyrian, and the Libyan, to 
make the same known by the exercise of their authority to all 
tliose who are subject to their jurisdiction. 

Given on the seventeenth day before the Kalends of January in 
tlie third Consulship of our Lord Justinianus. 



DIGEST OF JUSTINIAN. 

FIRST BOOK. 



M. J. 



I. 

On Justice and Law. 

1 Ulpianus {Institutes 1) AVhen a man means to give his 
attention to law {jus), he ought first to know whence the term jus 
is derived. Now jus is so called from justitia ; in fact, according ^ 
to the nice definition of Celsus, jus is the art of what is good 
and fair. 1. Of this art we may deservedly be called the priests ; ^ 
we cherish justice and profess the knowledge of what is good and 
fair, we separate what is fair from what is unfair, we discriminate 
between what is allowed and what is forbidden, we desire to make 
men good, not only by putting them in fear of penalties, but also 
by appealing to them through rewards, proceeding, if I am not 
mistaken, on a real and not a pretended philosophy. 2. Of this 
subject there are two departments, public law and private law. 
Public law is that which regards the constitution of the Roman 
state, private law looks at the interest of individuals ; as a matter 
of fact, some things are beneficial from the point of view of the 
state, and some with reference to private persons. Public law is 
concerned with^ sacred rites, with priests, with public officers. 
Private law has a threefold division, it is deduced partly from the 
rules of natural law, partly from those of the jus gentium, partly 
fi-om those of the civil law. 3. Natural law is that which all 
animals have been taught by nature ; this law is not peculiar to 
the human species, it is common to all animals which are produced 
on land or sea, and to fowls of the air as well. From it comes the 
union of man and woman called by us matrimony, and therewith 
the procreation and rearing of children ; we find in fact that 
animals in general, the very wild beasts, are marked by acquaint- 
ance with this law. 4. Jus gentium is the law used by the various 
tribes of mankind, and there is no difficulty in seeing that it falls 
short of natural law, as the latter is common to all animated 
beings, whereas the former is only common to human beings in 
respect of their mutual relations ; 

^ For constitit read consistit. 

1—2 



\ 



4 On Justice and Laiv [book i 

PoMPONius {Enchiridion) take, for example, religion as 
observed towards God ; or the duty of submission to parents and 
country ; 

Florentinus {Institutes 1) or the right of repelling 

violence and wrong ; it is in fact by virtue of this law that 
whatever a man does in defence of his own person he is held to do 
lawfully ; and Nature having made us in a certain sense akin to 
one another, it follows that it is a monstrous thing for one man to 
lie in wait for another. 

4 Ulpianus {Institutes 1) Manumissions also are comprised 
in the jus gentium. Manumission is the same as dismissal from 
manus (hand), in short the giving of liberty ; as long as a man is 
in a state of slavery he is subject to manus and potestas (control), 
by manumission he is freed from control. All this had its origin in 
the jus gentium, seeing that by natural law all were born free, and 
manumission was not known, because slavery itself was unknown ; 
but when slavery came in through the jus gentium, there followed 
the relief given by manumission ; and whereas people were once 
simply called by the one natural name of ' man,' by the jus 
gentium there came to be three divisions, first freemen, then, as 
contradistinguished from them, slaves, and then, in the third place, 
freedmen, that is persons who had ceased to be slaves. 

5 Hermogenianus {Epitomes of law 1) It was by this same 
jus gentium that war was introduced, nations were distinguished, 
kingdoms were established, rights of ownership were ascertained, 
boundaries were set to domains, buildings were erected, mutual 
traffic, purchase and sale, letting and hiring and obligations in 
general were set on foot, with the exception of a few of these last 
which were introduced by the civil law. 

6 Ulpianus {Institutes 1) The civil law is something which 
on the one hand is not altogether independent of natural law or 
jus gentimn, and on the other is not in every respect subordinate 
to it ; so that when we make addition to or deduction from universal 
law {jiis commune), we establish a law of our own, that is, civil law. 
1. Now this law of ours is either ascertained by writing or with- 
out writing ; as the Greeks say, tmv vo^wv ol fiev €'yypa(f)oc ol Be 
dypacpoi — (of laws some are in writing and some are not in writing). 

7 Papinianus {Definitions 2) The civil law is the law which is 
derived from statutes, plebiscites, decrees of the senate, enactments 
of the emperors, or the authority of those learned in the law. 
1. Praitorian law is that which was introduced by the praetors in 



TIT. i] On Justice and Law 5 

order to aid, supplement, or amend the civil law, with a view to the 
public advantage. The same is also called ' honorary law,' after the 
honor (public office) of the praetors. 

Marcianus {Institutes 1) In fact honorary law itself is the 
living voice of the civil law. 

Gaius {Institutes 1) All nations which are governed by 
statutes and customs make use partly of law which is peculiar to 
the respective nations, and partly of such as is common to all 
mankind. Whatever law any nation has established for itself is 
peculiar to the particular state (civitas), and is called civil law, 
as being the peculiar law of that state, but law which natural 
reason has laid down for mankind in general is maintained 
equally by all men, and is called jus gentium, as being the law 
which all nations use. 

Ulpianus {Rules 1) Justice is a constant, unfailing disposi- 
tion to give every one his legal due. 1. The principles of law are 
these : Live uprightly, injure no man, give every man his due. 
2. To be learned in the law {jurisprudentia) is to be acquainted 
with divine and human things, to know what is just and what is 
unjust. 

Paulus {on Sabinus 14) The word jus is used in a number 
of different senses : in the first place, in that in which the name is 
applied to that which is under all circumstances fair and right, as 
in the case of natural law ; secondly, where the word signifies that 
which is available for the benefit of all or most persons in any 
particular state, as in the case of the expression civil law. With 
equal correctness the term jus is applied in our state to honorary 
law. We may add that the preetor is said to administer the law 
even when he gives an unjust judgment, the word referring not to 
what the prsetor did in the particular case, but to what it is his 
business to do. The term jus is applied in another sense to the 
place in which law is administered, the name being transferred 
from the thing done to the place where it is done. What place 
that is may be stated as follows : whatever place the prsetor fixes 
upon in which to dispense justice, so as he maintain unimpaired 
the dignity of his own authority and the customs of our forefathers, 
that place is properly termed jus. 

Marcianus {Institutes 1) We sometimes apply the word J?«s 
to the tie of a personal connexion, for example a man may say ' I 
have dijus cognationis or ajffinitatis^ (I am connected by blood or 
marriage) with such a one. 



On the Ot^gin of Law [book i 



II. 

On the Origin of Law and of the different Magistracies, 

AS WELL AS THE SUCCESSION OF THOSE LEARNED IN THE Law. 

1. Gaius (o7i the Law of the Twelve Tables 1) Having 
undertaken to give an exposition of ancient statutes, I have as a 
matter of course thought it right to go back for my account of the 
law of the Roman people^ to the foundation of the city ; not that I 
have any desire to write unduly verbose commentaries, but because 
I observe that in all subjects a thing is only perfect when it is com- 
plete in all its parts, and undoubtedly the most essential part of 
anything is its beginning. Besides this, if with men who are 
arguing cases in the forimi it is, so to speak, a monstrous thing 
to set tlie matter forth to the judge, without first making some 
introductory statement ; how much more unsuitable must it be 
for one who has undertaken to give an exposition to disregard the 
beginning and omit reference to historical causes, and so to take 
up at once with unwashed hands, if I may use the expression, the 
subject-matter which has to be expounded ? The fact is, so it 
strikes me, that some introduction such as I have mentioned 
makes people more willing to approach the study of the matter 
in hand, and, when they have got so far, causes the subject itself 
to be more easily comprehended. 

PoMPONius {Enchiridion) Accordingly it seems requisite 
to set forth the origin and development of law itself. 1. Now 
at the time of the origin of our state the citizens at large 
(populus) undertook at first to proceed without fixed statutes or 
any fixed law at all, and everything was regulated by the direct 
control of the kings. 2. After that, the state being more or less 
enlarged, the tradition is that Romulus himself divided the body 
of the citizens into thirty parts, which parts he called curi(E, for 
the reason that he exercised his care (cura) of the commonwealth 
in accordance with the opinions of the parts referred to. Accord- 
ingly he himself proposed to the people certain curiate statutes, 
and the kings that succeeded him did the same thing ; all which 
statutes exist in writing in the book of Sextus Papirius, who was 

1 For prius read PRius {jwpidi Romani jus). M. 



TIT. n] On the Origin of Law 7 

contemporary with Superbus the son of Demaratus of Corinth, and 
was one of the leading men. That book, as above mentioned {sic), 
is called the Papirian civil law ; not that Papirius inserted anything 
in it of his own composition, but because statutes which had been 
passed in an unsystematic way were (therein) reduced by him to a 
single body of law. 3. The kings being subsequently expelled by 
a tribunician statute, the above statutes all went out of use, and 
the Roman people came once more to live by loosely ascertained 
law or by mere custom rather than by any formal statute, to which 
condition it submitted for about twenty years. 4. Afterwards, in 
order to put an end to this state of things, it was determined that 
ten men should be appointed by the authority of the state through 
whom application should be made for statutes to Greek cities, and 
the Roman state should be put on a statutable foundation. The 
laws so obtained they wrote on ivory tablets, and set them up 
before the rostra, to the end that they might be the more clearly 
perceptible, and supreme authority in the state was given for that 
year to the otRcers mentioned, their duty being to amend the 
statutes, where necessary, and also to expound their meaning, and 
there was to be no appeal from their decisions as there was from 
those of magistrates in general. They, however, themselves took 
note of certain deficiencies in the original statutes just referred to, 
and, accordingly, in the course of the ensuing year they added two 
more tables to those already existing ; hence the statutes taken all 
together were called the statutes of the Twelve Tables. It has 
been stated by some writers that the passing of these laws was 
suggested to the Tenmen by one Hermodorus, an Ephesian, who 
was living as an exile in Italy. 5. These statutes being enacted, 
it thereupon followed that discussion in the forivm {disputatio 
fori) became a necessity, as in fact it naturally must be the case 
that correct interpretation requires the guidance of those learned 
in the law. [The results of] such discussion, and the rules of that 
particular law which is composed by the learned and established 
without the use of writing, are not called by any special name^ like 
the otlier parts of the law which have their respective designations ; 
^they are both comprised under the general appellation of civil 
law. 6. After this there were at about the same time various 
forms of actions devised, founded on the above statutes, by which 
people in general might carry on litigation ; and in order to prevent 
the citizens from bringing their actions in any way they pleased, 

^ pai'te must be a slip of the pen. We are obliged to read appellatione. v. M. 
- datis pru])riis nominibus ceteris partibus del. Hal. 



8 On the Origin of Law [book i 

the Tenmen required that they should be in set and solemn form. 
This branch of the law is called that of statute-actions {legis 
actiones), in other words, statutable actions (legitimce actiones). 
Accordingly, these three branches of law arose at about the same 
time, that is to say, the statute of the Twelve Tables was first 
passed \ these tables gave rise to the civil law, and in accordance 
with the same were devised the statute-actions. But, in connexion 
with all these statutes, the knowledge of the way to interpret them 
and the conduct of actions founded upon them was left to the 
College of Pontifices, and it was laid down by order which of these 
should superintend private causes every year ; and the people 
continued to conform to this usage for about a hundred years. 
7. Afterwards, Appius Claudius having propounded and reduced 
to form the actions above mentioned, Gnfeus Flavins, his secretary, 
the son of a freedman, purloined the book and put it in the hands 
of the people at large, at which service the people were so much 
gratified that he was made a tribune of the pZe6s as well as a 
senator and a curule eedile. The book itself, which contains the 
forms of action, is called the Flavian civil law, on the same principle 
as that on which a book already mentioned is called the Papirian 
civil law, for Gn. Flavins, like Papirius, inserted nothing in the 
book of his own composition. As the Roman state increased, 
certain kinds of application not being available, after no long time 
Sextus iElius composed additional forms and presented to the 
people the book which is known as the .^^lian civil law. 8. Here- 
upon, there being in public use the statute of the Twelve Tables 
and the civil law, and also the statute-actions, it came to pass that 
discord arose between the j^lebs and the fathers, whereupon the 
former seceded and established laws for itself, which laws are called 
plebiscites. Soon after, on the plebs being induced to return, a 
great deal of disagreement arose in connexion with these plebiscites, 
in consequence of which it was enacted by the lex Hortensia that 
they should be observed as if they were regular statutes. The 
result of this was that the diflTerence between a plebiscite and a 
statute consisted thereafter in the formal method of enactment, but 
the force of the two was the same. 9. Next, seeing that the j^lebs 
found in course of time that it was difficult for them to meet 
together, and the general body of the citizens no doubt found it 
much more difficult still, considering the vast increase of tlieir 
numbers, the very necessity of the case caused the administration 
of the commonwealth to be put in the hands of the senate; hence 

1 Inser. lataqiie before lege. M. 



TIT. n] On the Origin of Law 9 

that body came to take a new part in the management of affairs, 
and whatever it enacted was observed as law, the enactment being 
called a senatus-consuUum. 10. At this time, besides the above, 
there were magistrates who administered justice, and in order that 
the citizens might be aware what kind of pronouncement the 
officer would make in any given case and take their measures 
accordingly, the magistrates published edicts. The edicts of the 
praetor constituted the honorary law, the name honorary being 
derived fi-om the public office (honos) of the praetor. 11. Lastly, 
in accordance with the growing uniformity in the methods of 
creating law which [the state] was found to have already adopted 
bit by bit, as the occasion required, it came to be a matter of 
necessity that the business of providing for the public welfare 
should be in the hands of one man, as it was impossible for the 
senate to carry on with the same diligence every department of the 
administration ; accordingly a head of the state was established, 
and he was entrusted with power to the effect that whatever he 
laid down should be held valid. 12. Hence in our state [the 
sources of law are as follows : — ] a rule may depend on law 
properly so called, that is, on a statute ; or there is the special 
and particidar civil law which is established without writing by 
mere interpretation on the part of the learned ; again, there are 
the statute-actions, which give the proper formahties to be used 
in pleading, or there may be a pleblscitum, which is enacted 
without the authority of the fathers ; furthermore there are the 
edicts of the magistrates, from which is derived the honorary law, 
or there is a senatus-consultum which takes its force simply from 
the fact of being enacted by the senate, though there is no statute 
strictly so called ; or, [lastly,] there is an imperial ordinance, the 
law being that whatever is enacted by the Emperor himself must 
be observed as if it were a regular statute. 

13. Now that we are acquainted with the origin and progress 
of the law, the next thing is to note the titles of the various 
magistrates and the origins of their respective offices, since, as 
we have already shown, it is through those who preside at the 
administration of justice that practical results are secured. What 
advantage is there in the existence of law in the state, if there 
are no officers to conduct its administration ? After that we will 
treat of the succession of learned authorities, as there can be no 
consistent body of law at all, unless there are persons acquainted 
with the law by whom it can from day to day be advanced and 
improved. 14. With regard to magistrates, there is no doubt 



10 On the Origin of Law [book i 

that in the earliest times of the Roman state all power was in 
the hands of the kings. 15. It is clear that there was also in 
those days a tributms celerum ; he was the officer who was at the 
head of the horsemen, and he may be said to have occupied the 
first place next after the king ; such an officer was Junius Brutus, 
who took the lead in the matter of expulsion of the king. 16. After 
the kings were expelled, two consuls were established, and it was 
provided by statute that they should exercise supreme authority ; 
their name was derived from the fact that they above all others 
* consulted ' the interest of the commonwealth. Lest however they 
should lay claim in all respects to the power that had been 
wielded by the kings, a statute was passed which provided that 
there should be an appeal from their decisions, and that they 
should not be able to inflict capital punishment on a Roman 
citizen without the order of the people : all that was left them 
was the power of summary coercion [ut coercere possent), and of 
ordering persons to be imprisoned in the name of the state. 
17. After this, as the business of conducting the census required 
a longer time, and the consuls were not equal to this in addition 
to their other duties, censors were appointed. 18. Then, as the 
nation increased in numbers and frequent wars arose, including 
some of considerable severity waged against Rome by bordering 
tribes, it was sometimes resolved, when the case required it, that a 
magistrate should be appointed endowed with exceptional powers ; 
accordingly dictators were instituted, from whom there was no 
appeal, and who even had conferred upon them the right of in- 
flicting capital punishment. But it was not held right that such 
a magistrate, wielding as he did supreme power, should be retained 
in office for more than six months. 19. The dictators were required 
to have magistri equitum (masters of the horsemen) just as the 
kings were to have trihuni celerum (officers of cavalry) ; the 
office was very much the same as the present office of prce- 
fectus prcetorio, still the holders were considered statutable 
magistrates. 20. About the same time the j)lchs, which had 
seceded from the ])atres some sixteen years after the expulsion 
of the kings, created tribunes for themselves on the Sacred JNIount 
by way of plebeian magistrates. They were called tribunes because 
at one time the whole body of the citizens was divided into three 
parts, and one tribune was created from each part ; or because 
they were created by the votes of the tribes. 21. Moreover, in 
order that there should be officers to superintend the temples, 
in which the /:>?c6s used to deposit all their enactments, two 



TIT. n] On the Origin of Law 11 

members of the ^?/eZ>s were appointed who were called asdiles. 
22. Afterwards, when tlie national finance had come to be on a 
larger scale, in order to provide officers to preside over it, quaestors 
were appointed to superintend money matters, so called because 
they were created for the purpose of inquiring into [the state of the 
treasury] and guarding the money. 23. And whereas, as has been 
mentioned, the consuls were not permitted by law to hold a court 
for trying a Roman citizen in a capital case without the leave of 
the people, for this reason quaestors were appointed by the people 
to preside in capital causes ; they were called qucestores parricidii ; 
these are in fact mentioned in the statute of the Twelve Tables. 
24. It being also resolved that a body of statutes should be passed, 
it was proposed to the people that all the magistrates should go 
out of office in order that Tenmen [should be created for the 
purpose of drawing up statutes. Accordingly the Tenmen^] were 
appointed for one year ; but whereas they contrived to prolong 
their office, and were guilty of oppressive practices, and declined, 
when the time came, to appoint their successors in office, their 
object being that they themselves and their faction should keep 
the government in their own hands without interruption, they 
brought matters to such a pass by their harsh and tyrannical 
domination that the army deserted the state. The author of the 
secession is said to have been a certain Verginius, who found that 
Appius Claudius, contrary to the rule which he had himself taken 
from the old law and inserted in the Twelve Tables, had refused to 
give him the interim custody of his own daughter [pending the 
trial of the question of her status] and had granted it to a man 
who had been set on by the judge himself to claim her as his slave ; 
so that, carried away by his desire for the girl, he, the judge, had 
upset all rules of right and wrong. Verginius, finding this, so it 
was said, and indignant at such a departure, in the case of his own 
daughter, from a very long-established rule of law (the fact being 
that Brutus, the earliest consul at Rome, had allowed interim 
liberty in the case of Vindex, the slave of the Vitellii, whose in- 
formation had brought to light a treasonable conspiracy), Verginius, 
I say, who deemed^ the honour of his daughter more precious than 
even her life, snatched a knife from the shop of a butcher and killed 
her with it, his object being that the girl's death should preserve 
her from the dishonour of sufiiering foul outrage, and thereupon, 
fi-esh from the deed, before his daughter's blood was dry, he took 

^ The portion in brackets was probably omitted by mistake, v. M. 
2 Rcsid putans for putaret. M. 



12 On the Origiri of Law [book i 

refuge with the ranks of his fellow-soldiers. The legions were at 
that time at Algidum, on a military expedition, but the whole army 
at ,once abandoned their actual leaders and carried the standards 
to the Aventine mount, soon after which the plebs of the city 
betook themselves in a body to the same spot, and by the common 
consent of the citizens [the Tenmen] were [some of them driven 
into exile and^] some put to death in prison ; whereupon the 
commonwealth returned once more to its previous condition. 
25. Next, several years having elapsed after the passing of the 
Twelve Tables, a contest arose between the jjlebs^ and the patres, 
the former desiring that the consuls should be chosen" out of their 
own body as well as from the patres, to w^hich the latter refused to 
consent ; whereupon it was resolved that military tribunes should 
be created with consular power, being taken partly from the ^Zefes 
and partly from the patres. The number of these officers varied 
from time to time, sometimes there were twenty, sometimes 
more, occasionally not so many. 26. Afterwards, it having been 
resolved that the consuls might be taken from the 2^lebs itself, they 
came to be appointed from both bodies ; whereupon, by way of 
allowing i\\Q joatres some kind of precedence*, it was resolved that 
two officers should be appointed from their number [to superintend 
the games^], and this was the origin of the curule sediles. 27. Again, 
•^ as the consuls were called away by wars on the border, and there 
was thus no one left to administer justice at home, it came 
to pass that in addition to them a prsetor was created who was 
called the prcetor urhanus, because he administered justice in 
\ the city. 28. Some years after this, as this prsetor was not equal 
to the discharge of his duties, in consequence of the excessive 
crowding of actual foreigners into the city, another prsetor was 
j created in addition, called the 2^r(Etor peregrinus, because his chief 
i duty was to administer justice to the peregrini (foreigners). 
29. Again, it was necessary that there should be some magistrate 
to preside® at the court of the hasta ; accordingly the ' Tenmen for'' 
determining causes ' were appointed. 30. About tlie same time 
were also appointed the ' Fourmen to take charge of highways ' 
and the 'Threemen of the Mint' who melted bronze, silver, and 
gold ; also the ' Threemen for capital cases ' who were to have the 

1 Words in brackets probably omitted by mistake. M. 

2 Read cum post aliquos annos quam duodecim tabulce latce sunt plebs. M. 

3 Read creari for creare. M. 

* Read plus juris for pluris. M. ^ M. 

6 Read prceesset for prceessent. M. ' Del. in. Hal. 



TIT. ii] On the Origin of Law 13 

care of the prison, so that, when punishment was to be inflicted, it 
might be done by their agency. 31. And as it was unsuitable for 
the magistrates to be engaged in public afikirs in the evening, there 
were appointed the Fivemen for the hither side and the other 
side of the Tiber who might act in the place of the magistrates. 
32. After this, Sardinia being annexed, then Sicily, also Spain, and 
next the province of Narbo, so many additional praetors were 
appointed, corresponding to the number of provinces which had 
come under the Roman sway, some of which praetors had to super- 
intend home, and some provincial affairs. Later on, Cornelius 
Sylla instituted State inquisitions {qiuestiones publicw), for ex- 
ample, for forgery (de /also), for parricide, for stabbers ; and he 
also created four additional prsetors. Next Gaius Julius Caesar 
appointed two pra3tors and two asdiles to preside over the distri- 
bution of corn, who^ were to be called Cereal, from the goddess 
Ceres. Thus there were created twelve praetors and six aediles. 
After this the Divine Augustus appointed sixteen praetors. Then 
the Divine Claudius added two more praetors to hold courts on 
questions of testamentary trusts (de fdeicoinmisso), but one of 
the two was suppressed by the Divine Titus ; and the Divine 
Nerva added a judge who should adjudicate on cases between 
the fiscus and private persons. This makes the number of persons 
who administer justice in the state eighteen. 33. All the above 
holds good as long as the magistrates are at home ; but whenever 
they leave the city, one is left to administer justice who is entitled 
prcefectus urbi. He used at one time to be appointed when the 
others took their departure^, afterwards he may be said to have 
been regularly instituted on account of the Latin festivals, and 
the appointment is made every year. The fact is that the pre- 
fect of the corn supply and the prefect of the watch {prcefectus 
annonce and proifeGtus vigilimi) are not magistrates, they are 
extraordinary ofiicers appointed in the interest of the public. At 
the same time the Cistiberes above referred to (tribunes for the 
hither side of the Tiber) were by a decree of the senate after- 
wards made aediles. 34. On the whole then, as it appears by 
the above, there were ten tribunes of the plebs, two consuls, 
eighteen praetors and six aediles exercising jurisdiction in the city. 

35. The knowledge of civil law has been professed by a gi'eat 
number of distinguished men ; we will at present mention such of 
them as held the first rank in the estimation of the Roman people, 
so as to set forth the names and characters of those who originated 

^ Read et dicer entur. Cf. M. ^ Readjt)r()/ecf^> Us iov prcefectus. Cf. M. 



14 On the Origin of Law [book i 

and handed down our rules of law. Of all those who acquired 
systematic knowledge, no one, so the tradition is, made a public 
profession of it before Tiberius Coruncanius ; all those who 
preceded him either desired to keep the civil law in the back- 
ground, or else^ were in the habit of bestowing their time on such 
as consulted them, rather than putting themselves at the disposal 
of persons who wished for systematic instruction. 36. One lawyer 
of pre-eminent learning was Publius Papirius, who drew up a 
consolidated version of the Royal statutes {leges regice). After 
him came Appius Claudius, one of the Tenmen, who had the chief 
voice in the composition of the Twelve Tables. After him another 
Appius Claudius of the same family possessed the greatest know- 
ledge of the law ; he was called the hundred-handed, he laid down 
the Appian road, he made the aqueduct for the Claudian water, 
he voted that Pyrrhus should not be admitted into the city ; and 
he it was, according to tradition, who first wrote forms of action 
for cases of interruption to possession, but his book is not extant. 
The same Appius Claudius devised the letter R, a consequence of 
which seems to have been that Valesii was turned into Valerii and 
Fusii into Furiil 37. A man of very great learning after these 
was Sempronius, whom the Roman citizens called <ro(/)09 (the wise), 
and no one else either before or after him received that surname. 
[Then there was] Gains Scipio Nasica, who was called by the senate 
'the Best'; in addition to which he was presented by the state 
with a house in the Via Sacra, so as to make it more easy to consult 
him. Next came Quintus Mucins; he was once sent as envoy to 
Carthage, where, two dice being laid before him, one for 'peace' 
and the other for 'war,' he was given the choice between them and 
requested to take back to Rome whichever he preferred ; where- 
upon he took up both, saying that the proper course was for the 
Carthaginians to ask for whichever of the two they would rather 
receive. 38. The above were succeeded by Tiberius Coruncanius, 
who, as already mentioned, was the first public professor of law ; 
there is however no written work of his to be met with, though his 
formal opinions were numerous and noteworthy. After him Sextus 
^lius and his brother Publius ^lius and also Publius Atilius dis- 
played very great learning as public teachers, so much so that the 
two ^lii were in tact made consuls, and Atilius was the first person 

1 Perhaps read vel solebant for solumque. v. M. 

' Read idem A. C. R literam invenit rideturque db hoc processisse tit etc. 
for t'dem A. C. qui videtur ah hoc processisse R literam, invenit ut etc., which 
is absurd. (Muret.) 



TIT. n] On the Origm of Law 15 

to whom the people gave the title of Sapiens. Indeed Sextus 
iElius is mentioned by Ennius, and there exists a book of his 
bearing the title Tripertita, containing a sort of cradle of the law ; 
it is called TrqMrtita because in it we have first the statute of the 
Twelve Tables, this is followed by an exposition, and lastly the 
work concludes with the statute-actions. There are three other 
books which are said to be by the same author, though some 
persons maintain that this is not the case ; these latter have been 
to some extent followed by Cato. We next have Marcus Oato, the 
head of the Porcian family, and some books are extant written by 
him ; but there are a great many by his son, and it is on these 
last that the subsequent works are founded. 39. After these were 
Publius Mucins and Brutus and Manilius, who were the founders 
of the civil law. Of these P. Mucins left as many as ten treatises, 
Brutus seven, Manilius three ; and written rolls of Manilius 
are preserved ^ The two former were of consular rank, Brutus 
had been praetor, P. Mucius had been even Pontifex Maximus. 
40. Pupils of these were Publius Rutilius Rufus, who was consul 
at Rome and proconsul of Asia, Paulus Verginius and Quintus 
Tubero, the well-known Stoic, who studied under Pansa and was 
himself consul. Sextus Pompeius, the paternal uncle of Gnaeus 
Pompeius, lived at the same time, and so did Cselius Antipater, an 
author of historical works, but a man who bestowed more pains on 
the art of public speaking than on legal learning ; there was also 
Lucius Crassus, brother to Publius Mucius, who was called Munianus, 
this last is said by Cicero to have been the best speaker of all 
jurisconsults. 41. After these Quintus Mucius, the Pontifex 
Maximus, son of Publius, was the first who made a digest of the 
civil law, which he arranged under heads in eighteen books. 
42. Mucius had a great number of pupils, but those of most 
authority were Aquilius Gallus, Balbus Lucilius, Sextus Papirius, 
and Gains Juventius ; of these Gallus is reported by Servius to 
have had most authority with the people at large. They are how- 
ever all cited by Servius Sulpicius ; but no original works of these 
men are extant of such a character as to be in general demand ; 
indeed their writings are not in frequent and general use at all, 
though Servius^ constantly made use of them in compiling his o^vn 
books, and it is owing to his writings that they themselves are held 
in remembrance. 43. Servius Sulpicius, at a time when he occupied 
the chief place as a pleader of causes, or, at any rate, the next 
after Marcus Tullius [Cicero], is said to have gone to Quintus 
^ l>el. motnimenta. M. ^ After Servius insert Us. 



16 On the Origin of Law [book i 

Mucius for his advice about an affair in which a friend of his was 
concerned, and to have very imperfectly understood an answer 
which Mucius gave him^ on a point of law. Hereupon, as the story 
is, he asked the question again, and received an answer from Mucius, 
which he still failed to comprehend, which drew upon him a severe 
reproach from Mucius ; it was disgraceful, he said, that a patrician, 
a member of a family of distinction and a pleader of causes, 
should be unacquainted with the law in which his business lay. 
Stung with this taunt, so to call it, Servius took pains to learn 
the civil law, and received a great deal of instruction fi-om teachers 
above mentioned ; he was taught by Balbus Lucilius, and helped on 
his way a great deal by Gallus Aquilius who lived at Cercina ; 
hence it comes that a great many works of his now extant were 
composed at that place. Servius died in the course of serving as a 
legate, whereupon the Roman people erected a statue to him before 
the rostra, which is to be seen at this day in front of the rostra 
of Augustus. A number of rolls of his works are in existence ; he 
left behind him nearly a hundred and eighty books. 44. Many 
lawyers derived instruction from him, among whom the following 
were the chief writers : Alfenus Varus [Gains'^], Aulus Ofilius, Titus 
Ceesius, Aufidius Tucca, Aufidius Namusa, Flavius Priscus, Gains 
Ateius, Pacuvius Labeo [Antistius], the father of Labeo Antistius, 
Cinna, Publicius Gellius. Of these ten, eight wrote books, the 
matter of the whole of whose existing works was arranged by 
Aufidius Namusa in a hundred and forty books. Among the above- 
mentioned pupils [of Servius] those of greatest authority were 
Alfenus Varus and Aulus Ofilius ; Varus attained the consulship, 
Ofilius always kept his equestrian rank. He was on very intimate 
terms with the Emperor, and he left a large number of books on 
civil law Avhicli were intended to serve as a groundwork in every 
part of the subject. He was^ the first author to write about the 
statutes relating to the five per cent, duty ; he was also the first 
to make a careful arrangement of the matter of the praetor's edict 
so far as it bore on jurisdictio ; though before him Servius left 
two very short books addressed to Brutus bearing the title On the 
Edict. 45. An author of the same day was Trebatius, he was a 
pupil of Cornelius Maximus ; there was also Aulus Cascellius, a 
pupil of Quintus Mucius Volusius^, in fact in honour of his instructor, 

^ Read rexpondenietn for respondisse. v. M. 

2 The names in brackets may perhaps be omitted, v. M. 

3 Read conscripsit for conscrihit. 

* I read Quinti Muci for Quintus Mucius, but the text is hopeless. 



TIT. n] On the Origin of Laio 17 

he made Mucius's grandson Publius Mucins his heir. He was a 
man of qusestoriau rank, and he did not care to rise higher, though 
Augustus himself offered him the consulship. Among the three last- 
named, Trebatius, it is said, had more practical acquaintance with 
law than Cascellius, but Cascellius surpassed Trebatius in eloquence, 
while Ofilius excelled both in learning. No works of Cascellius re- 
main, except a single book of "good sayings." There are a good many 
books of Trebatius, but they are not much used. 46. After these 
came Q.^ Tubero, who studied under Ofilius ; he was a patrician, 
and he gave up the business of a pleader for the study of the civil 
laAV, his chief reason for this being that he had prosecuted Quintus 
Ligarius before Gains Cajsar without success. Quintus Ligarius 
was the man who, being in command on the African coast, refused 
to allow Tubero to land when he was ill, or to take water, on 
which Tubero prosecuted him, and Ligarius was defended by Cicero ; 
Cicero's oration is preserved, and may fairly be called a very fine 
one; it is entitled Defence of Quintus Ligarius. Tubero was 
accounted most learned in public and private law, and he left a 
great many books on both subjects, but he affected antique language 
in his writing, and for that reason his books are not popular. 
47. After him very great authority was allowed to Ateius Capito, 
who followed Ofilius, and Antistius Labeo, who studied under all 
the above {sic) ; though he was especially instructed by Trebatius. 
Of these two, one, Ateius, was consul ; Labeo, when the same office 
was offered him by Augustus, the holding of which would have 
made him interim consul {consul suffectus), declined to accept it, 
but he bestowed great pains on legal studies. In the prosecution 
of these he divided the year into two parts, so as to pass six 
months at Rome with his pupils, and for the remaining six months 
to be absent and give himself up to writing books. In the end he 
left four hundred volumes, many of which are in constant use. 
These two men may be said to have founded two schools respec- 
tively ; Ateius Capito adhered to the doctrines which had reached 
him by tradition ; Labeo, who was gifted with original ability and 
relied on his own learning, having given attention to many other 
branches of knowledge, undertook to make a good many innova- 
tions. 48. In connexion with this distinction, Ateius Capito was 
succeeded by Massurius Sabinus, and Labeo by Nerva; these two 
in fact widened the difference between the two schools above 
mentioned. Nerva was on very intimate terms with the Emperor. 
Massurius Sabinus was a member of the equestrian order, and was 

^ Read Q. for qitoque. Cf. M 
M. J. 2 



18 On the Origin of Law [book i 

the first to give opinions in the public interest (jmblice) ; t the fact 
being that after this privilege had come to be given, it was allowed 
to him by Tiberius Csesart.^ 49. It may be observed in passing 
that before the days of Augustus the right of delivering opinions 
in the public interest was not granted by the head of the state, 
but any persons who felt confidence in their own learning gave 
answers to such as consulted them ; moreover they did not always 
give their answers under seal ; they very often wrote to the judge 
themselves, or called upon those who consulted them to testify to 
the opinions they gave. The Divine Augustus was the first to lay 
down, in order to ensure greater authority to the law, that the 
jurisconsult might deliver his answer in pursuance of an authoriza- 
tion given by himself; and from that time such an authorization 
was asked for as a favour. It was in consequence of this that our 
excellent Emperor Hadrian, on receiving a request fi*om some 
lawyers of prsetorian rank for leave to give legal opinions, answered 
the applicants that this privilege was not usually asked for but 
granted [or that there was no leave asked for this practice, it was 
simply carried out], consequently, if any one were confident of his 
powers, he (the Emperor) would be much pleased to find that- he 
took steps to qualify himself for delivering opinions to the citizens. 
50. Accordingly leave was given to Sabinus by Tiberius Caesar to 
deliver opinions to the citizens. Sabinus himself was admitted into 
the equestrian order at an advanced time of life, in fact at about 
the age of fifty. He was not a man of ample means, but he was 
maintained to a great extent by his pupils. 51. Sabinus was suc- 
ceeded by Gains Cassius Longinus, the son of a daughter of Tubero's, 
Avho herself was grand-daughter to Servius Sulpicius : Avhence 
Cassius speaks of Servius Sulpicius as his great-grandfather. 
Cassius was consul along with Quartinus in the time of Tiberius ; 
he possessed very great influence in the state down to the time 
when the Emperor expelled him. 52. He was banished to Sardinia, 
but he lived to be recalled by Vespasian. Nerva was succeeded 
by Proculus. There lived at the same time another Nerva, the son ; 
there was also another Longinus, who belonged to the equestrian 
order; he afterwards attained to the ofiice of prsetor. Proculus 
however had the greater authority, in fact he had very great 
influence. The members of the two schools were called respectively 
Cassians and ProcuHans, the distinction between the schools having 
taken its start from Capito and Labeo. 53. Cassius was succeeded 

^ I have put nain j^osteaquam for posteaque: tandem for tamen. Cf. M. : 
reading very doubtful. 

^ si inser. after se. Cf M. 



TIT. ii] On the Origin of Law 19 

by Cselius Sabinus, who had very gi-eat influence in the days of 
Vespasian ; Prociilus by Pegasus, who was at the same period 
Prefect of the city ; Cselius Sabinus by Priscus Javolenus ; 
Pegasus by Celsus ; Celsus the father by Celsus the son and 
Priscus Neratius ; both the last mentioned were consuls, Celsus 
indeed was t^Wce consul ; Javolenus Priscus was followed by 
Aburnius Valens and Tuscianus, also by Salvius Julianus. 



III. 
On Statutes, Decrees of the Sei^ate, and Long Usage. 

Papinianus {Dejinitions 1) A statute {lex) is a command of 
general application, a resolution on the part of learned men, a 
restraint of offences, committed either voluntarily or in ignorance, 
a general covenant on the part of the state. 

Marcianus {Institutes 1) The orator Demosthenes him- 

self gives this definition: 'A law {vofxo^) is the following: — 
something which all men ought to obey for many reasons, and 
chiefly because every law is devised and given by God, but resolved 
on by intelligent men, a means of correcting offfences both intentional 
and unintentional, a general agreement on the part of the community 
by which all those living therein ought to order their lives. We 
may add that Chrysippus the philosopher, a man who professed 
the highest wisdom of the Stoics, begins his book called Trepl 
vofiov (on law) as follows : — "Law is the king of all things, both 
divine and human, it ought to be the controller, ruler and com- 
mander of both the good and the bad, and thus to be a standard 
as to things just and unjust and" [director of] "beings political by 
nature, enjoining what ought to be done and forbidding what 
ought not to be done." 

PoMPONius {on Sabinus 25) Laws ought to be laid down, 
as Theophrastus said, in respect of things which happen for the 
most part, not which happen against reasonable expectation. 

Celsus {Digest 5) Rules of law are not founded on possi- 
bilities which may chance to come to pass on some one occasion. 

The same {Digest 17) since law ought to be framed to meet 
cases which occur frequently and easily, rather than such as very 
seldom happen. 

Paulus {on Plautius 17) What occurs once or twice, as 
Theophrastus says, lawgivers pass by. 

2—2 



20 On Statutes, Decrees, Long Usage [book i 

7 MoDESTiNUS {Rules 1) The use of a statute is as follows : 
to command, to prohibit, to permit, to punish. 

8 Ulpianus {on Sabinus 3) Rules of law are not laid down 
with respect to particular individuals, but for general application. 

9 The same {on the Edict 16) Nobody questions that the 
senate can make law. 

10 JuLiANUS {Digest 59) Neither statutes nor decrees of the 
senate can possibly be drawn in such terms as to comprehend 
every case which will ever arise ; it is enough if they embrace such 
as occur very often. 

11 The same {ibid. 90) Consequently, when a rule is laid 
down in the first instance, a more precise provision has to be 
made, either by interpretation or else by direct legislation on the 
part of the most excellent Emperor. 

12 The same {ibid. 15) It is impossible for every point to 
be expressly comprehended in statutes or senatorial decrees ; 
still if, in any case that arises, the meaning of the enactment is 
clear, the presiding magistrate ought to extend the rule to ana- 
logous cases to the one expressed and lay down the law 
accordingly. 

13 Ulpianus {on the Edict of the Curide yEdiles 1) For, as 
Pedius says, whenever this or that is provided by statute, there is 
a fair opening for any further rule which involves the same bene- 
ficial principle being supplied, either by interpreting the statute in 
that sense or, at any rate, by the ruling of the presiding magistrate 
{jurisdictio). 

14 Paulus {on the Edict 54) But where a rule has obtained 
force which is against legal principle, no analogous extension thereof 
should be made. 

15 JuLiANUS {Digest 27) In cases where anything has been 
laid down which is against legal principle, we cannot follow the 
rule of law [so laid down]. 

16 Paulus {Special law) Special law {jus singulare) is law 
which contradicts the ordinary course of legal principle, but has 
been introduced for the sake of some particular beneficial operation 
in virtue of the authority of those who laid it down. 

17 Celsus {Digest 26) To know the statutes does not mean 
to have got hold of the actual words, but to be acquainted with 
their sense and application. 



TIT. Ill] On Statutes, Decrees, Long Usage 21 

The same (ibid. 29) Statutes ought to be interpreted 

indulgently, so as to preserve the intention. 

The same {ihid. 33) Where a word in a statute is obscure, 
the meaning which ought rather to be adopted is the one which 
involves no absurdity, especially considering that it is possible by 
applying that principle to arrive at the intention of the statute. 

JuLiANUS {Digest 55) It is impossible to assign the prin- 
ciple of every rule of law laid down by our forefathers ; 

Neratius {Parchments 6) consequently the reasons for the 
law laid down ought not to be inquired into ; or else a great many 
rules already established will be upset. 

Ulpianus {on the Edict 35) Where a statute gives an 
exemption in respect of what is past, it maintains the prohibition 
for the future. 

Paulus {on Plautius 4) Where a particular interpretation 
has always been received, there ought to be no change made. 

Celsus {Digest 9) It is not like a lawyer to take hold of one 
particular portion of a statute and found a judgment or opinion 
upon it without examining the whole statute. 

MoDESTiNUS {Responsa 8) It is inconsistent with all prin- 
ciples of law and with all rules of indulgent construction founded on 
justice that where any provision is happily introduced for the 
benefit of mankind, we should interpret it so harshly as to make it 
an authority for severe dealing to the prejudice of those for whose 
sake it was devised. 

Paulus {Questions 4) There is nothing new in earlier statutes 
being made use of in interpreting later ones. 

Tertullianus {Questions 1) It being the case that the older 
statutes are usually made use of for interpreting the newer, it 
ought always to be understood that it is, so to speak, of the essence 
of a statute that it should be applicable to any persons or things 
which may at any time be similar to those specified. 

Paulus {on the Ux Jidia et Papia 5) But in like manner the 
later statutes are relevant for inteq^reting the earlier, unless they 
contradict them, as may be shown in a number of cases. 

The same {on the lex Cincia) A man who does what a statute 
forbids transgresses the statute ; a man who contravenes the 
intention of a statute, without disobeying the actual words, commits 
a fraud on it. 



22 On Statutes, Decrees, Long Usage [book i 

30 Ulpianus {on the Edict 4) A fraud is committed on a 
statute when something is done which the statute desired should 
not be done, but did not actually forbid ; the difference between 
fraud on the law and transgression of it is the same as that between 
speech and intention. 

31 The same {on the lex Julia et Papia 13) The Emperor is 
not bound by statutes. The Empress no doubt is bound, at the 
same time the Emperor generally gives her the same exceptional 
rights as he enjoys himself. 

32 JuLiANUS {Digest 84) In any kinds of cases in which 
there are no written laws the rule which ought to be observed 
is that which has come to prevail by use and custom ; and 
should there in any case be no such rule assignable, then what 
comes nearest and answers to one ; if even this cannot be found, 
then we ought to go by the law in use in the city of Rome. 
1. Immemorial custom is observed as a statute, not unreason- 
ably ; and this is what is called the law established by usage. 
Indeed, inasmuch as statutes themselves are binding for no other 
reason than because they are accepted by the judgment of the 
people, so anything whatever which the people show their approval 
of, even where there is no written rule, ought i)roperly to be equally 
binding on all ; what difference does it make whether the people 
declare their will by their votes, or by positive acts and conduct ? 
On this principle it is also admitted law, and very rightly so, that 
statutes are abrogated not only by the voice of one who moves to 
repeal them {suffragio legislatoris), but also by the fact of their 
falling out of use by common consent. 

33 Ulpianus {on the office of Proconsul 1) It is the practice 
for custom of long standing to be observed for law and statute in 
all such matters as are not regulated by written rules. 

34 The same {ihid. 4) Where anyone is found to be confident 
as to the custom of a city or province, I am of opinion that a 
question which ought to be asked first of all is this : Has the 
custom ever been confirmed by a judicial sentence delivered after 
objections were heard ? 

35 Hermogenianus {Epitomes of laic 1) We may add that 
rules of law which have the sanction of long-established custom 
and have been kept up for a great number of years, may be treated 
as being the subject of a tacit agreement on the part of the citizens 
in general, and are as fully maintained as those which exist in 
writing. 



TIT. Ill] On Statutes, Decrees, Long Usage 23 

Paulus [on Sahinus 7) In fact especial weight is allowed 
to a rule which has met with such approval that it was not 
necessary to embody it in writing. 

The same (Qicestions 1) If a question is raised as to the 
interpretation of a statute, we must first inquire Avhat was the rule 
of law which the state observed previously in cases of the same 
kind ; custom is the best interpreter of statutes. 

Callistratus {Questions 1) In fact the reigning Emperor 
Severus laid down that where doubts occur owing to the wording 
of a statute, in such a case custom or the authority of constant 
decisions given to the same kind of eifect ought to have the force 
of a statute. 

Celsus {Digest 23) When some rule has been introduced 
which was not arrived at by any legal principle, but was founded 
on a mistake and subsequently maintained by mere custom, it is 
not to be applied to similar cases. 

MoDESTiNUS {Rules 1) Accordingly all rules were either 
made through agreement or established by necessity or fixed by 
custom. 

Ulpianus {Institutes 2) Now all law is concerned with 
^acquisition or preservation or restriction of right, as what is in 
question is either how a thing becomes a man's property or how a 
man can preserve some thing or right which he already has, or how 
he can transfer it to some one else or cease to have it. 



IV. 

On Imperial Enactments. 

1 Ulpianus {Institutes 1) What the Emperor has deter- 

mined has the force of a statute ; seeing that, by a lex regia which 
was passed on the subject of his sovereignty, the people transfer 
to him and confer upon him the whole of their own sovereignty 
and power. 1. Accordingly whatever the Emperor has laid down 
by a letter with his signature, or has decreed on judicial investiga- 
tion, or has pronounced out of court, or enacted by an edict, 
amounts beyond question to a statute. The above are cases of 
what are commonly called constitutions. 2. No doubt some of 

^ Read consistit for constitit. 



24 On Imperial Enactments [book i 

these are of special application, and are not drawn into a pre- 
cedent ; wherever the Emperor shows indulgence to anyone on the 
ground of his merits, or imposes a penalty on anyone, or gives 
him relief in a way not practised theretofore, this applies only to 
the particular person. 

Ulpianus iFicleicommissa 4) Where any new ordinance 
is made, there ought to be a very clear case of beneficial 
operation to allow of a departure from the law which has been 
held just for a long time past. 

Javolenus {Epistles 13) An indulgence vouchsafed by the 
Emperor, which proceeds in fact from his divine clemency, ought 
to receive the most extensive construction possible. 

MoDESTiNUS {Excuses 2) Later enactments have more force 
in law than those which precede them. 



V. 

On Status. 

Gaius {Institiites 1) All law in force amongst us deals with 
either persons, or things, or actions. 

Hermogenianus {Epitomes of law 1). Seeing then that all 
law has been established for the sake of mankind, we will discuss 
first personal status, and then the remaining subjects, following 
the arrangement of the EcUctum peiyetimm, and joining to the 
above the titles next in order and connected therewith, so far as 
the nature of the subject allows. 

Gaius {Institutes 1) Now the main division of the law of 
persons is this, that all human beings are either free or slaves. 

Florentinus {Institutes 9) Liberty is the natural power 

of doing what anyone is disposed to do, save so far as a person is 
prevented by force or by law. 1. Slavery is a creation of the jus 
ge7itium,\y^ yfh\c\\ a man is subjected, contrary to nature, to ownership 
on the part of another. 2. Slaves are called servi because military 
commanders commonly sell their captives and so preserve them 
instead of killing them ; 3. they are called mancipia, because they 
are taken by the hands of their enemies. 

Marcianus {Institutes 1) Now all slaves have one and 
the same legal condition ; of free men some are ingenui, some are 
lihertini. 1. Slaves become subjects of ownership either by the 



TIT. v] On Status 25 

civil law or by the jiis gentium ; by the civil law, a man over 
twenty years of age becomes a slave by allowing himself to be sold in 
order to have a share in the purchase-money ; by the jus gentium, 
people own as slaves those Avho are captured from their enemies or 
who are born from their female slaves. 2. Persons are ingenui 
who are born of a free mother ; it is enough that the mother should 
be free at the moment when the child is born, though she should 
have been a slave at the time of conception. Even in the converse 
case, where she is free at conception, but a slave at the time of the 
birth, the law is that the child is born free ; and it matters not 
whether the mother conceived in lawful wedlock or in random 
intercourse ; the mother's ill fortune ought not to prejudice the 
unborn child. 3. Hence arose this question : — if a slavewoman is 
manumitted, being with child at the time, and after that is reduced 
to slavery again, or sent into banishment, and then gives birth to a 
child, is the child free or a slave ? However, the view which has 
found deserved favour is that the child is born free, and that it is 
sufficient for the unborn child that the mother was free at some time 
or other during the period of pregnancy. 

Gaius (Institutes 1) Libertini are those who have been 
manumitted out of lawful slavery. 

Paulus {ou the j^ortions allowed to cliihlren of condemned 
persons). An unborn child is taken care of just as much as if it 
were in existence, in any case in which the child s own advantage 
comes in question ; though no one else can derive any benefit 
through the child before its birth. 

Papinianus {Questions 3) The Emperor Titus Antoninus 
laid down that the position of children is not prejudiced by the 
terms of a badly drawn instrument. 

The same {ihid. 31) There are many points in our law in 
respect of which women are in a worse legal position than men. 

Ulpianus {on Sahinus 1) The question has been asked : — 
according to which sex are hermaphrodites to be treated ? but I 
should say on the whole that they ought to be treated as having 
the sex which predominates in them. 

Paulus {Responsa 18) Paulus gave the opinion that where 
a boy was conceived in the lifetime of the father [of his mother], but 
without such father being aware of the connexion formed by his 
daughter, then, even though the boy should be born after the death 
of such grandfather, he is not to be held to be the lawful son of the 
man who begot him. 



26 On Status [book i 

12 The same (ibid. 19) It is now generally admitted on the 
authority of the very learned physician Hippocrates that a com- 
pletely formed child may be born in seven months (septimo 
mense) ; it may be therefore held that a boy who is born in lawful 
marriage in seven months is a lawful son. 

13 Hermogenianus {jE2ntomes of Imv 1) Where a slave is 
given uj) by his owner to the fortune of a trial at law in a capital 
case, though he should be acquitted, he does not become free. 

14 Paulus {Sentences 4) We cannot apply the word 'chil- 
dren ' [liberi] to oflPspring which is born fashioned in some way 
which is contrary to the normal form of the human species ; for 
instance, where a woman is delivered of something monstrous or 
portentous. But any ofispring which exceeds the natural number 
of limbs used by man may in a sense be said to be fully formed, 
and will therefore be reckoned among children. 

15 Tryphoninus {Controversies 10) A testator ordered that 
Arescusa should be free if she bore three children. On her first 
delivery she had one child, on her second three children. The 
question was asked whether any of the children were born free, 
and, if any, which. [Answer] The condition on which freedom is 
to turn in this case is one which the woman has to fulfil ; but there 
can be no doubt that the child last born is born free. Nature does 
not allow that tMo children should issue from their mother's womb 
at the same time by one movement, and thus that the order of 
birth should be uncertain, and it should not be clearly apparent 
which of two cliildren is born a slave and which free. Accordingly, 
the condition being fulfilled at the moment when the [last] delivery 
begins, the result is that the child thereupon born is the child of 
a free woman ; just as if any other condition on which the freedom 
of the woman was to turn had been fulfilled at the moment when 
she was delivered; or suppose, for instance, she had been manu- 
mitted on condition that she gave ten thousand to the heir of the 
testator, or to Titius, and at the moment of her delivery she ful- 
filled the condition by an agent ; in that case it would have to be 
held that she was already a free woman when she gave birth to 
the child. 

16 Ulpianus {Controversies 6) The same would follow if 
Arescusa in the case mentioned first bore two, and then brought 
forth twins : the rule to lay down is that it cannot be said that 
both the twins are born free, but only that the one born last is 
free. The truth is it is rather a question of fact than of law. 



TIT. v] On Status 27 

17 The same {on the Edict 22) By an enactment of the 
Emperor Antoninus all those living in the, Roman world were 
made Roman citizens. 

18 The same {on Sahinns 27) The Emperor Hadrian laid down 
in a rescript to Publicius ]\Iarcellus that if a free woman were con- 
demned to the extreme penalty, being with child at the time, her 
child would be born free, and that the custom was to keep the 
woman mitil she was delivered of the child. We may add^ that if 
a woman, after conceiving in lawful wedlock, is forbidden fire and 
water, her child is born a Roman citizen and is under the j^otestas 
of its father. 

19 Celsus {Digest 29) When lawful marriage has taken place, 
the children follow the father; the child of random intercourse 
follows the mother. 

20 Ulpianus {on Sabinus 38) A man who has become a 
lunatic is held to retain the same status and rank that he had 
before, as well as any magistracy or authority, just as he retains 
ownership in his property. 

21 MoDESTiiSrus {Rules 7) If a fi-ee man sells himself for a 
slave, and is afterwards manumitted, he does not recover his 
original status which he renounced, but takes the condition of a 
libertimis. 

22 The same {Resjyonsa 12) Herennius Modestinus laid down 
that if a slavcMoman is delivered of a child at a time when, by 
the terms of the donation by which she was acquired, she ought 
to have been manumitted already, then, seeing that the Imperial 
enactment makes her free at once, her child is freeborn. 

23 The same {Pandects 1) The expression ' conceived at ran- 
dom ' {vidgo conceptus) is applied to anyone who cannot point out 
who is his father, or who can, but his father is one who cannot be 
his father lawfully. Such a one is called 'spurius' from ajropd 
(generation). 

24 Ulpianus {on Sabinus 27) This is a rule of nature : who- 
ever is born out of lawfid wedlock foUows his mother, unless some 
special statute provides other^vise. 

25 The same {on the lex Jidia et Papia 1) We must take the 
term ' ingenuus ' to include one who is judicially pronounced free- 
born, though he should really be a freedman ; what is judicially 
decided is deemed to be the fact. 

^ Read et after sed. Hal, 



28 On Status [book i 

JULIANUS {Digest 69) Unborn cliilclren are in almost every 
branch of the civil law regarded as already existing. They are 
allowed to take statutable inheritances ; and if a woman with child 
is taken prisoner by the enemy, and a child is born, it comes under 
the law of postliminium, moreover it follows the condition of its 
father or its mother [as the case may be] ; lastly, if a slavewoman 
who is with child is stolen, then, although she should be delivered 
when in the hands of a ho7ia fide purchaser, the child will be 
regarded as stolen goods, and consequently ownership in it will 
not be acquired by usus. Again, on the same principle, after the 
death of a patron, so long as a son of the deceased can possibly be 
born, a freedman is in the same legal position as one whose patron 
is living. 

Ulpianus {Opinions 5). \^^ien a man confesses that he is a 
freedman, his patron cannot give him freeborn status even by 
adopting him. 



VI. 

On Persons sui juris and alieni juris. 

Gaius {Institutes 1) We next have another division of the 
law of persons ; some persons are sui juris, and some are subject 
to the legal authority of others. Let us consider the case of 
persons who are subject to the authority of others ; when we see 
who such persons are, we shall thereby understand who are sui 
juris. Let us then take the case of those who are under the 
potestas of others. 1. Now slaves are under the potestas of their 
owners, and this potestas is part of thejws gentium, in fact we may 
observe among all nations alike that slave-owners have the power 
of life and death over their slaves, and whatever is acquired 
through the slave is acquired to the owner. 2. At the present 
day however no persons living under Roman rule are at liberty to 
deal cruelly with their slaves to an excessive extent or without 
some ground recognised in the statutes, as, by an enactment of the 
Divine Antoninus, a man who kills his own slave without due cause 
is to be just as much punished as one who kills the slave of 
another. Indeed even excessive harshness on the part of slave- 
owners is restrained by an enactment of the same Emperor. 



TIT. vi] Persons sui juris and alieni juris 29 

Ulpianus {07i the office of Proconsul 8) If an owner 

treat his slaves with cruelty or compel them to commit lewdness 
or submit to indecent outrage, the proper course for the Presses to 
take may be plainly seen from the rescript of the Divine Pius to 
iElius Marcianus, the Proconsul of B?etica. The words of the 
rescript are as follows : " The power which owaiers have over 
their slaves ought not to be interfered with, and no human being 
ought to be debarred from exercising his legal rights ; still it is 
in the interest of owners themselves that slaves who make just 
complaint should not be refused aid against violence or starvation 
or any insufferable wrong. You must therefore listen to the 
complaint of those slaves of the household of Julius Sabinus who 
fled for refuge to the statue, and if you find that they have been 
treated with improper severity or subjected to infamous wrong, 
order them to be sold on terms which shall secure that they shall 
not be brought back into the hands of their present owner ; and 
should such owner endeavour to evade my enactment, let him 
understand that I will visit his behaviour very severely." Moreover 
the Divine Hadrian relegated one Umbricia, a lady of good social 
position {matrona), for five years, for treating her female slaves 
with extreme cruelty on very trivial grounds. 

Gaitjs {Institutes 1) Again, a man has under his j^otestas 
any children that he has begotten in lawful wedlock : this rule of 
law is peculiar to Roman citizens. 

Ulpianus (Institutes 1) A Roman citizen may be a 

paterfamilias or a filiusfamilias or a mateifamilias or a filia- 
familias. A paterfamilias is a man who is in his own pfotestas, 
whether of mature age or not ; a similar definition applies to a 
materfamilias ; a filiusfamilias or filiafamilias is under the 
potestas of some one else. A child who is born from the union of 
me and my wife is under my ^mtestas ; and one who is born from 
the union of my son and his wife, in other words, my grandson or 
granddaughter, is equally under my potestas, so is my great- 
grandson or great-granddaughter, and so on of more remote 
descendants. 
I The same {on Sabinus 36) Grandsons through a son on the 
death of the grandfather regularly come under the potestas of the 
son, that is, of their own father : similarly great-grandchildren and 
remoter descendants either come under the potestas^ of the son, if 
he is living and has remained in the family, or else under that of 

^ Read potestatem for potestate. Hal. 



30 On Persons sui juris [book i 

some ascendant who preceded them in the group subject to 2)otestas. 
This rule applies not only where the children are such by nature 
but where they are adopted. 

6 The same (ibid. 9) The definition of 'son' {filius) is 
' the male child of a man and his wife.' If however we suppose a 
case where a husband was absent, let us say, for ten years, and, on 
coming home, found in his house a child one year old, we agree 
with the opinion of Julianus that the child is not [to be deemed in 
law] the son of the husband. Still, according to the same writer, a 
man is not to be listened to who, after constantly living with his 
wife, refuses to acknowledge her son, as not being his own. I should 
say however, and this is the opinion of Scsevola, that if it is shown 
that the husband passed an interval of time without knowledge of 
his wife, owing to bodily infirmity or any other reason, or a patev- 
familias was for physical reasons unable to beget children, then a 
child born in the house, though the fact of birth was known to the 
neighbours, is not [to be deemed in law] the son of the husband. 

7 The same {iUd. 25) There is no doubt that a gi-andson 
steps into the place of a son where his [i.e. such grandson's] 
father is visited with some punishment which causes him to lose 
his citizenship or become a penal slave. 

8 The same {ibid. 26) If the father is a lunatic, his children 
remain none the less under their father's 2^otestas ; the same 
rule applies to any 'paterfamilias who has children under his 
potestas. The right of j^otestas was established by custom, and a 
man cannot cease to have persons under his 2yotestas except by the 
occurrence of the regular circumstances by which children become 
free, consequently there can be no admissible doubt that in the 
above case the children remain subject to j)otestas. Accordingly 
he will have in his potestas not only those children whom he begot 
before his lunacy began, but also such, if there be any, as were 
conceived when he was sane, but Ave re born after he became a 
lunatic. Indeed if his wife should conceive at a time when he is a 
lunatic, it is a fair question whether his child will not come under 
his 2Jotestas by birth ; a lunatic, it is true, cannot contract a 
marriage, but he can remain a party to a marriage already 
contracted ; and this being the case, [it follows that] his son will 
be under his 2^otestas. Similarly, if the wife is a lunatic, a child 
which she may have conceived previously will be born in [the 
husband's] potestas ; and if it be conceived when she is a lunatic 
but the husband is sane, there is no doubt that it will be born 



TIT. vi] and alieni juris 31 

under potestas, since the marriage remains good. We may add 
that if both husband and wife are lunatics, and, that being the 
case, the wife conceives, the child will be born under the jmtestas 
of its father, some remnant of intention being assumed to remain 
in the parties in spite of their lunacy ; since the marriage holds 
good where one party is a lunatic, it will do so equally where both 
are in that condition. 1. So true is it that a father who is a 
lunatic retains the right of potestas, that in fact the benefit of 
anything which the son gains is acquired by the father. 

PoMPONius {on Quintus Mucius 16) A. JiUmfamilias is in 
matters of public laAv on the same footing as a paterfamilias ; so 
that he is able, for example, to discharge the office of magistrate, 
or to be appointed a guardian. 

Ulpianus {on the lex Julia et Papia 4) If the Court 
should declare that a child is to be reared oi' maintained, it must 
be held that inquiry is open on the question of fact whether the 
child is or is not a lawful son ; a decision as to maintenance is not 
allowed to prejudge the above question of fact. 

MoDESTiNUS {Pandects 1) Natural or emancipated children 
cannot be brought under patria p)otestas against their will. 



VII. 

Concerning Adoptions and Emancipations and other 

METHODS BY WHICH JJOtestaS IS DISSOLVED. 

MoDESTiNUS {Rules 2) The position of JiliusfamUias is 
acquired not only by nature but by adoption. 1. The word 
adoption is a general term, and embraces two kinds of cases, of 
which one is again called adoption, the other arrogation. Adoption 
is of B. Jiliusfamilias, arrogation of one who is sui juris. 

Gaius {Institutes 1) Now adoption, in the comprehensive 

sense of the word, is performed in two ways, that is, either by 
the authority of the Emperor or by the order of a magistrate. By 
the authority of the Emperor a man adopts such as are sui juris ; 
which kind of adoption is called arrogation, because the person 
adopted is asked, that is, inteiTogated, whether he desires that 
the person whom he is intending to adopt should become his 
lawful son, and the person who is being adopted is asked wliether 
he is willing that this should take place. A man adopts by 



32 Adoptions and Emanclpatio7is [book i 

order of a magistrate persons who are under the potestas of a 
paterfamilias, whether they are issue in the first generation, as 
sons or daughters, or in a lower generation, as grandsons or grand- 
daughters, great-grandsons or great-granddaughters. 1. One rule 
applies equally to both kinds of adoption, viz. that men who are 
incapable of begetting children, such as those who are impotent, 
are able to adopt. 2. But the following rule applies only to the 
kind of adoption which requires application to the Emperor, viz. 
that if a man who has children under his jyotestas allows himself to 
be arrogated, not only is he brought under the potestas of the 
arrogator himself, but his children too come under the potestas of 
the same person, so as to be, as it were, that person's grand- 
children. 

3 Paulus {on Sabinus 4) Where a consul or the governor of 
a province is a JiliuefamiUas, it is recognised law that he can be 
emancipated or given in adoption in his own court. 

4 MoDESTiNUS {Rules 2) It is held by Neratius that any 
magistrate who can take legis actiones can emancipate his children 
or give them in adoption in his own court. 

5 Celsus {Digest 28) In case of adoption it is only persons 
who are sui juris whose consent is asked ; but Avhere children are 
given in adoption by their father, the will of both parties has to be 
considered, [which may be made known] by express consent or by 
the fact of no objection being made. 

6 Paulus {on the Edict 35) When anyone is adopted for 
grandson as through a particular son, the son's own consent is 
required ; this is said by Julianus himself. 

7 Celsus {Digest 39) There is no need, in case of an adoption, 
for concurrence on the part of those with whom the person to be 
adopted will come into agnatic connexion. 

8 MoDESTiNUS {Bides 2) The rule once in force that in a case 
of arrogation the concurrence of a curator should not be inter- 
posed has been very properly altered by the Divine Claudius. 

9 Ulpianus (07i Sabinus 1) Even a blind man can adopt or 
be adopted. 

10 Paulus {on Sabinus 2) If a man who has a son in his 
potestas should, with the consent of that son, adopt anyone into 
the position of grandson through that son, this will not make the 
party adopted suus Jieres to his [adoptive] grandfather, seeing that 
if the grandfather dies, he falls into the jjotestas of the person who 
is, so to speak, his father. 



TIT. vii] Ado2)tions mid Emancipations 33 

11 The same {ibid. 4) If a man who has a son should adopt 
some one into the position of grandson, as though he were 
the son of that son, but the son himself has not concurred in the 
adoption ; tlien, on the death of the [adoptive] grandfather, such 
grandson will not be under the jjotestas of the son. 

12 Ulpianus {on Sahimis 14) When a man has been set free 
from patria jjotesfas, he cannot afterwards come again under 
potestas in an}^ creditable way, save by adoi)tion. 

13 Papinianus {Questions 36) In almost every legal aspect of 
the case, when the potestas of an adoptive father is terminated, 
there is no trace left of the preceding state of things ; in short 
the very dignity of father acquired by adoption is laid aside when 
the relation is ended. 

14 PoMPONius {on Sabinus 5) Even a grandson through a[n 
adopted] son, though conceived and born in the household of the 
father of such adopted son^ loses his whole legal position on 
emancipation. 

[5 Ulpianus {on Sahinus 26) When a paterfamilias is 
adopted, everything which belongs to him and all his rights of 
acquisition pass tacitly to the person who adopts him ; in addition 
to this, any children who are in his j^otestas go with him, moreover 
such children as subsequently return under the law oi postliminium, 
or were conceived but unborn at the moment of arrogation, will 
equally come under the potestas of the party arrogating. 1. If a 
man has two sons and a grandson through one of the two, and he 
wishes to adopt his grandson so as to put him on the footing of son 
of the other son, he can do so by first emancipating him and then 
readopting him as son to such other son. In fact he does this last 
just as if he were any stranger, and not as grandfather, and, on 
whatever principle he could adopt a person whom he treated as 
the son of a stranger, on the same principle he can adopt one 
whom he treats as the son of his own other son. 2. In a case of 
arrogation one point to inquire into is whether the party arrogating 
chances to be under sixty years of age, because, if he is, he ought 
rather to think of begetting children ; unless it so happen that 
there is some disease or infirmity in the case, or there is some other 
good ground for an arrogation, as, for example, where he wishes to 
adopt a person with whom he is connected. 3. jNIoreover a man 
ought not to arrogate more than one person without lawful cause, 

1 Read adoptati for ado2)tatam. Cf. M. 

M. J. 3 



34 Adoptions and Emancipatio7is [book 

nor some one else's freedman, nor a person who is older than 
himself ; 

16 Javolenus {extracts from Cassius 6) as the adoptive re- 
lation is only allowed betAveen those persons between whom the 
natural relation might by possibility have existed. 

17 Ulpianus (on Sabinus 26) A man is not allowed to arrogate 
a person to whom he has been an acting guardian or curator, so 
long as the person whom it is proposed to arrogate is under 
twenty-five, because otherwise his object in arrogating him might 
be to avoid submitting his accounts. Moreover there ought to be 
an inquiry as to whether or not the case is one in which the 
arrogation is desired on some dishonourable ground. 1. ^Only 
those children under the age of puberty are allowed to be 
arrogated in whose case the reason for the arrogation is either 
blood-relationship or some perfectly genuine affection, in all other 
cases leave must be refused, lest it should be in the power of the 
guardians to put an end to the guardianship, and at the same time 
to bring to nothing a testamentary substitution which may have 
been made by the father of the ward. 2. Accordingly an estimate 
must be made first of the ward's means and also of the means of 
the person who proposes to adopt him, in order to ascertain by 
comparison of the two whether the adoption can be considered 
beneficial to the ward ; next an inquiry must be made into the 
manner of life of the man who wishes to make the ward a member 
of his family ; thirdly, as to his age, so as to ascertain whether it 
would not be better for him to think about begetting children for 
himself, rather than bringing some one under his potestas who is 
taken from another man's family. 3. It should further be con- 
sidered whether, when a man has one or more children of his own, 
he ought to be allowed to acquire another by adoption ; as the 
result might be that either those children whom he begot in 
lawful wedlock would have a worse prospect of the kind which all 
children acquire who are dutiful to their parents, or the ward 
himself so adopted would gain less by the adoption than he ought 
under the circumstances to get. 4. Sometimes a poorer person 
will even be allowed to adopt a richer, if he is clearly a man of 
frugal habits, and his motives are honourable and well-known to 
be such. 5. However it is the practice in such cases for security 
to be given. 

1 The passage seems corrupt : the sense must be as above. Read his for 
eorum, ceteris for ceterorum, and delete his where it occurs. 



TIT. vii] Adoptions and Emancijjations 35 

18 Maecellus {Digest 26) In fact, when a man wishes to 
arrogate a ward, if he establishes a good case for it in other 
respects, his application should only be granted on the terms of 
his giving an undertaking to a government slave that he will make 
over any property of the ward's that comes to his hands to those 
persons to whom such property would have gone if the ward so 
arrogated had remained as he was. 

19 Ulpianus {o7i Sabmus 26) It is beyond doubt that, in the 
form of the undertaking which the arrogator has to give, where 
there occur the words "those who have a right thereto," this 
reference includes the case of any manumissions which are con- 
tained in the secondary testament, and most especially that of a 
slave being made substitutional heir, also the case of legatees. 
1. If the arrogator should fail to give the security in question, an 
utilis actio is allowed against him. 

20 Marcellus (Digest 26) This undertaking comes into force 
where the ward dies under age. It may be observed that the law 
speaks of a male ward, but the same practice has to be observed in 
the case of a girl ; 

21 Gaius (Rides) as females may be arrogated by imperial 
rescript as well as males. 

22 Ulpianus (on Sahinus 26) If an arrogator dies leaving an 
adopted son who is under age, and soon after that this latter 
himself dies, will the heirs of the arrogator be liable to the action ? 
The proper answer is that the heirs will be equally bound to hand 
over the property of the adopted son, and the quarter in addition. 
1. Here the question has been asked whether the arrogator can 
appoint a substitutional heir to the adopted son under age ; but I 
am of opinion that such a substitution is not allowed, unless it be 
simply in respect of the quarter which he gets of the arrogator's 
property, and the substitution must turn on an earlier event 
than that of the adopted son reaching the age of puberty. But 
if he should leave the property in question to the adopted son 
upon trust to hand it over at some date chosen at large, such 
a trust ought not to be admitted, because the quarter does 
not come to the son by an exercise of the testator's will, but 
by the Emperor's provision. 2. All the above applies equally 
whether a man arrogates a boy under age as a son or as a 
grandson. 

3—2 



36 Adoptions and Emancipations [book i 

23 Paulus {on the Edict 35) AVlien a person is given in 
adoption, he becomes cognate to every one to whom he becomes 
agnate, and he does not become cognate to any one to whom he 
does not become agnate ; adoption does not create the tie of blood, 
but the tie of agnation. Hence, if I adopt a son, my wife is not in 
the place of mother to him ; he does not become agnate to her, 
consequently she does not become cognate to him ; again, my 
mother is not in the place of grandmother to him, as he does not 
become agnate to those who are outside my family ; but any male 
whom I adopt [as a son] does become brother to my daughter, as 
my daughter is in my family : and of course the two are not allowed 
to marry. 

24 Ulpianus {Controversies 1) No one can be arrogated in his 
absence or without his own consent. 

25 The same {Ojnnions 5) On the death of a daughter who 
has been living as an independent woman as if in consequence of a 
lawful emancipation, and who before her decease appointed heirs 
by testament, the father is not allowed to take proceedings calling 
in question the validity of his own act, on the alleged ground that 
the emancipation was not made according to law nor in the 
presence of witnesses. 1. A man cannot adopt or arrogate any 
one without being present, nor can he execute the required 
formalities by an agent. 

26 JuLiANUS (Digest 70) A person whom my emancipated son 
adopts will not thereby become my grandson. 

27 The same {ibid. 85) According to the civil law the son of 
an adopted son acquires the same position as if he were himself 
adopted. 

28 Gaius (Institutes 1) Any one who has in his potestas a son 
and a grandson through that son is at full liberty to dismiss the 
son from his 2^ot£stas and retain the grandson ; or, conversely, to 
retain the son in his potestas, and emancipate the grandson ; or to 
make both sui juris : similar rules must be held to apply in the 
case of a great-grandson. 

29 Callistratus (Institutes 2) Where a natural father is 
unable to speak, but is able to make plain by some other method 
than speech that he desires to give his son in adoption ; the 
adoption is as fully upheld as if it had been effected with proper 
legal formality. 



TIT. vii] Adoj7tio7is and Emancipations 37 

30 Paulus (Rules 1) Even a man who has no wife can adopt 
a son. 

31 Marcianus (Rules 5) No son who is in the potestas of a 
father, whether by nature or adoption, can in any way compel his 
father to let him be fi*ee from jwtestas. 

32 Papinianus (Questions 31) In some cases, however, where 
a boy under age has been adopted, he has a right to be heard, if, 
on arriving at full age, he desires to be emancipated, and the judge 
will have to decide after hearing the case. (1. The Emperor 
Titus Antoninus laid down that where a man is guardian to his 
stepson he must be allowed to adopt him.) 

33 Marcianus (Rules 5) And if, on arriving at the age of 
puberty, the boy can show that it was not to his advantage that 
he should be brought under the party's j^otestas, the just course is 
that he should be emancipated by his adoptive father, and so 
recover his original legal position. 

34 Paulus (Questions 11) The follomng question has been 
raised. If a son is given you in adoption on the understanding 
that after, say, three years you will give the same son in adoption 
to me, is there any right of action against you ? As to this, Labeo 
holds there is no right of action ; as it is not in accordance with 
our customs that a man should have a son for a prescribed time. 

35 The same (Resjyonsa 1) The operation of an adoption is not 
to lower a person's station, but to raise it. Consequently, even 
where a senator is adopted by a plebeian, he remains a senator ; 
in the same way a man will remain the son of a senator. 

36 The same (ibid. 18) It is recognised that a son can be 
emancipated by his father in any place whatever, so as thereupon 
to be freed from jxitria j^otestas. 1. The law is that the act of 
manumitting or of giving in adoption can be executed before a 
proconsul, even in a province which has not been allotted to the 
proconsul in question. 

S7 The same (Sentences 2) A man can adopt a person as 
grandson even when he has no son. 1. \Vlien a man has once 
adopted any one, then, if he should emancipate him or give him in 
adoption, he cannot adopt him again. 

38 Marcellus (Digest 26) An adoption not made in proper 
legal form can be made good by the Emperor ; 

39 Ulpianus (on the office of Consul 3; this appears by the 
following rescript of the Divine Marcus to Eutychianus : — ' The 



38 Adoptions and Emancipations [book i 

judges will consider whether your application ought to be granted 
after hearing the parties who have objections to make, that is to 
say, those who would suffer if the adoption were confirmed.' 

40 MoDESTiNUS {Differences 1) On the arrogation of a pater- 
familias the children who were under his potestas become grand- 
children to the arrogator, and fall under his potestas along with 
their own father. The same result does not take place in an 
adoption [in the narrower sense of the word] ; the children of one 
who is [so] adopted remain under the p)otestas of their natural 
grandfather. 1. Both where a man adopts, and also where he 
arrogates, he ought to be older than the person whom he makes 
his son by adoption or arrogation, and that by the period of fall 
puberty ; in other words, he ought to be in advance of the age of 
the other by eighteen years. 2. One who is impotent can by 
arrogation acquire for himself a suus heres ; his physical defect is 
no obstacle. 

41 The same {Rules 2) If a man who has in his j^otestas a 
grandson through a son emancipates his son, and after that adopts 
him again, on his death the grandson does not come under the 
potestas of his father. Similarly the grandson does not come under 
the potestas of his father [on his grandfather's death], where his 
grandfather keeps him under potestas on giving his son in adoption 
and subsequently readopts the son. 

42 The same {Pandects 1) Even an infant can be given in 
adoption. 

43 PoMPONius {on Quintus Mucins 20) Persons may be adopted 
not only for sons but even for grandsons, so as to cause whoever is 
adopted to be deemed in law a grandson through a son, and not 
even necessarily any particular son. 

44 Proculus {Epistles 8) If a man who has a grandson through 
a son adopts some other person into the position of grandson 
[simply], I should say that on the death of the grandfather there 
will be no legal tie of consanguinity between the grandsons. But 
if he adopts him in such form as to make him as much his grand- 
son by law and statute as if he had been born the son, say, of 
Lucius the adopting party's son and of Lucius' s lawful wife, I shoidd 
hold the contrary \ 

45 Paulus {on the lex Julia et Papia 3) The legal obligations 
of a person who is given in adoption pass to the adoptive father. 

^ Read, for ut etiatn... quasi, uti tain jure lege nepos suus esset quam si. Cf 
M. and Aul. Gell. 5. 19. 9. 



TIT. vii] Adoptions mid Emancipations 39 

Ulpianus {on the lex Julia et Papia 4). A son begotten 
by me when I was in a condition of slavery may be brought under 
my 2^otestas by the favour of the Emperor : but there is no doubt 
that such a son will still be of libertine status. 



VIII. 
On the Division of Things and their respective natures. 

Gaius {Institutes 2) The main division of things ranges 

them under two heads ; some things being subjects of divine law, 
some of human. Subjects of divine law, for instance, are things 
sacred and religious. Things under a sanction {res sanctce), more- 
over, as for example, walls and gates, ai*e to a certain extent 
subjects of divine law. A thing which is of divine law is no man's 
property ; but a thing which is of human law is for the most part 
the property of some one or other ; still it is possible that it should 
be no man's property, we know that things comprised in an 
inheritance, until some one becomes heir, are no man's property. 
Such things as are subjects of human law are either public or 
private. Things that are public are held to be no man's property, 
they are in fact regarded as belonging to the whole community ; 
things are private that are the property of individuals. 1. Again, 
some things are corporeal, some incorporeal. Corporeal are such 
as can be handled, for instance, land, slaves, raiment, gold, silver, 
and innumerable things besides ; incorporeal are those that cannot 
be handled, of which nature are such as consist of a right, for 
instance, an inheritance, a usufruct, an obligational claim, however 
acquired. It is beside the purpose to say that there are corporeal 
things contained in an inheritance ; as it is equally true that 
produce which is taken from land [in exercise of a usufruct] is 
corporeal, and anything owing to a man in pursuance of an obli- 
gation is for the most part corporeal, such as land, or a slave, or 
money ; still the bare right of succession to an inheritance and the 
right of usufruct and the right involved in an obligational claim 
are all incorporeal. To the same class also belong rights attached 
to urban and rustic tenements, or, as they are also called, servitudes. 

iVlARCiANUS {Institutes 3) Some things are by natural 

law common to all, some belong to a community {universitas), 
some to nobody, most things belong to individuals ; and they 



40 On the Divisio7i of Things [book i 

are acquired by various titles in the respective cases. 1. To begin 
with, by natural law, the following are common to all : air, flowing 
water, the sea, and consequently the seashore. 

Florentinus {Institutes 6) Moreover pebbles, gems and 

generally things which persons find on the seashore at once become 
theirs by natural law. 

Makcianus {Institiites 3) Accordingly no one is debarred 
from entering on the seashore for the purpose of fishing, so long as 
there is no meddling with houses buildings or monuments ; these 
not being, like the sea itself, subjects of the jus gentium. The 
above was laid down by the Divine Pius in a rescript addressed to 
the fishermen at Formiae and Capena. 1. But rivers are almost 
all public, and so are harbours. 

Gaius (Everyday matters or Golden things 2) The use of 
river banks is public by the jus gentium, just as much as that of 
the river itself. Consequently anybody is at liberty to bring a boat 
to land on the bank, to fasten ropes to trees growing thereon, to 
dry nets and [for that purpose] to draw them up from the sea or 
to place cargo on the banks, just as he is free to navigate the 
stream itself. Still the ownership of the banks is vested in the 
persons to whose land they are joined ; and consequently the trees 
that grow on the banks belong to the same persons. 1. Persons 
who fish in the sea are at liberty to erect huts on the shore in 
which to take shelter ; 

Marcianus {Institutes 3) so far does this go that those 

who build on the shore become in fact owners of the soil, so long, 
that is, as the building stands ; no doubt, if the building falls 
down, then the site will, by something like the law of jwstliminium, 
revert to its former legal character, and, if some one else builds on 
the spot, the land becomes his. 1. Of things which belong to a 
collective body and not to individuals we may take for examples 
theatres, racecourses and the like in cities, or any other property 
which in any case belongs to the city at large. Consequently a slave 
belonging to the city at large is not regarded as one in whom the 
individual citizens have their respective shares, but as the property 
of the whole body iiuuversitas) ; hence the Divine Brothers laid 
down by rescript that a municipal slave can be examined by torture 
either for or against a citizen. For this reason again it is that the 
freedman of a city is not obliged to ask permission under the Edict, 
if he summonses one of the citizens. 2. Sacred things, religious 
things and things under a sanction are no man's property. 3. Sacred 



TIT. vin] On the Division of Things 41 

things are those which have been consecrated by an act of the 
state, and not privately; consequently if any one aifects to make 
something sacred on his own behalf privately, the thing does not 
become sacred but remains profane. If a temple is once made 
sacred, the site remains sacred even if the building should be 
pulled down. 4. But any one can make a place religious at his 
own will and pleasure, by burying a dead body on his own ground : 
and where several have a right to one burial ground, any one of 
them can bury there, even against the will of the others. It is also 
open to any one to bury on another person's ground with the leave 
of the owner ; and even where the owner only ratifies the act after 
the burial has taken place, the spot becomes religious. 5. Even 
an empty tomb is held on the whole to be a religious place, as is 
testified by Virgil. 

Ulpianus [on the Edict 25) However the Divine Brothers 
issued a rescript to the opposite effect. 

IMarcianus (Rules 4) The word 'sanctus' (under a sanction) 
is used of whatever is defended and guarded against wrong or 
damage at the hands of men. 1. Sauctus is derived from 
sagmlna ; sagmina being certain herbs usually carried by legates 
of the Roman people to secure them against outrage, just as the 
legates of the Greeks carry what are called KijpvKia. 2. Again, 
in a municipal town, the walls are under a sanction, according 
to what Cassius tells us was the opinion expressed by Sabinus, 
which he declares to be correct, adding that no one ought to be 
permitted to cast anything at or upon them. 

Ulpiajstus (on the Edict 68) Sacred places are such as are 
dedicated by the state {imhUce), whether in a city or in the country. 
1. It should be understood that a public site can only be made 
'sacred' where the Emperor dedicates it or gives permission to 
dedicate it. 2. A point that should be noted is that a sacred 
place is not the same thing as a sacrarium. A sacred place is a 
consecrated place, a sacrm-ium is a place in which sacred objects 
are kept, and it may exist in a private building ; moreover, when 
persons wish to divest such a place of its religious character, they 
commonly have the sacred objects removed by evocation. 3. The 
word 'sanctus' is used in a special sense to denote things which 
are neither sacred nor profane, but are protected by some kind of 
' sanction ' ; thus the term scmctus is applied to statutes, because 
they derive their force from a particular sanction. Whatever is 
maintained by some particular sanction is 'sanctum,' even though 



42 On the Division of Things [book i 

it be not consecrated to God, and sometimes it is added in the 
terms of the sanction itself that whosoever offends in respect of 
the object in question shall be capitally punished. 4. The walls of 
a municipal town are not even allowed to be repaired without the 
authority of the Emperor or the Prseses, nor may anything be 
united to them or laid upon them, save on the same condition. 
5. A sacred thing cannot have a money value put upon it. 

10 PoMPONius (Extracts from Plautius 6) According to Aristo, 
just as anything built into the sea becomes private property, so 
anything over which the sea encroaches becomes i)ublic. 

11 PoMPONius (Various j^cissages 2) If any one trespasses on 
the walls, he suffers capital punishment ; for example, if he climbs 
over them by the use of ladders, or by any other means : citizens 
of Rome are only allowed to leave the city by passing through the 
gates ; taking any other way is the act of an enemy, and of evil 
omen. In fact Remus, the brother of Romulus, was put to death, 
so tradition says, because he desired to climb over the wall. 



IX. 

Concerning Senators. 

1 Ulpianus {on the Edict 62) All agree that a man of consular 
rank always takes precedence of a woman of consular rank. But 
it is a point to consider whether a man of praefectorian rank takes 
precedence of a woman of consular rank. I should hold that he 
does, because the male sex deserves the greater honour. 1. By 
a woman of consular rank is meant the wife of a man of consular 
rank ; or, as Saturninus adds, even the mother ; but for this last 
there is no express authority and it has never been admitted in 
practice. 

2 Marcellus (Digest 3) Cassius Longinus holds that when 
a man has been removed from the senate for disgraceful conduct, 
and has not been reinstated, he ought not to be allowed to sit as 
judge, nor to appear as a witness ; since this is against the lex 
Julia on extortion. 

3 Modestinus {Rules 6) A senator who is removed from the 
senate does not thereby suffer capitis dimiuutio, indeed the Divine 
Severus and Antoninus allowed him to live in Rome. 



TIT. ix] Concerning Se^iators 43 

4 PoMPONius (Various passages 12) When a man is un- 
worthy of the lower rank he is still more unworthy of the 
higher. 

5 Ulpianus [on the lex Julia et Papia 1) By the expression 
' son of a senator ' we must understand not only one who is son in 
the course of nature, but an adopted son as well ; nor wall it make 
any diflference who it is that he was adopted from, nor what was 
the manner of his adoption. Nor is it material whether the party 
adopting was already of senatorial rank at the time of the adoption 
or only attained to that rank afterwards. 

6 Paulus [on the lex Julia et Papia 2) The expression 
' son of a senator ' applies to one whom the senator has adopted, 
but only so long as he remains in the senator's family ; if he should 
be emancipated, then by the emancipation he loses the name of 
son. 1. If the son of a senator is given in adoption by his father 
to a man of inferior rank, he is still regarded as being the son of a 
senator ; the rank of senator is not lost by an adoption proceeding 
from an inferior rank, any more than a similar adoption would 
make the party adopted cease to be of consular rank. 

7 Ulpiajstus {on the lex Julia et Pajna 1) If a man is 
emancipated by his father who is a senator, the law is that he 
should be treated as if he were the son of a senator. 1. Again, 
Labeo lays down that even one who is born after the death of his 
father who was a senator is on the footing of son of a senator. 
But where a man Avas conceived and born (sie) after his father was 
removed from the senate, then, in the opinion of Proculus and 
Pegasus, he is not on the footing of son of a senator ; and in this 
they are quite right ;— a man cannot properly be called the son of 
a senator where his father was removed from the senate before his 
birth. Xo doubt if he was already conceived, before his father's 
removal from the senate, but born after his father's loss of rank, 
the better opinion is that he must be regarded as the son of a 
senator ; as most authorities hold that it is the time of conception 
that has to be considered. 2. If a man's father and grandfather 
were both senators, he is regarded as on the footing both of son of 
a senator and grandson of a senator. But if the father lost his 
rank before the person in question was conceived, it may be asked 
whether he ought not to be regarded as on the footing of grandson 
of a senator in spite of the fact that he is not regarded as son; and 
the better opinion is that he ought, so that his grandfather's rank 



44 Concerning Senators [book i 

is to his advantage rather than his father's loss of rank to his 
disadvantage. 

8 The same {Fideicommissa 6) Women who are married to 
men of honourable^ rank (darissimi) are included under the term 
honourable. Daughters of senators are not comprised under the 
expression honourable women [after marriage], except where they 
have found honourable husbands ; husbands give honourable rank 
to their wives, but parents only do so to their daughters unless 
and until the latter marry plebeians; accordingly a [married] 
woman is " honourable " only when she is the wife of a senator, or 
of any honourable man, or, if she has come to be separated from 
such a husband, has not married any one else of lower rank. 

9 Papinianus (Responsa 4) Where the daughter of a senator 
affects to marry a freedman, loss of rank on the part of her father 
does not make her a lawful wife ; as [, conversely,] the rank which 
a man has once communicated to his children will not be taken 
away by the fact of the father losing his status by removal from 
the senate. 

10 Ulpianus {on the Edict 34) By the exi3ression children of 
senators we must understand not merely the sons of senators, but 
all those persons who are shown to be the children of senators or 
of their sons, whether the senators' sons whose children they are 
shown to be were sons by nature or by adoption. But where a man 
was the child of the daughter of a senator, what Ave have to look at 
is the rank of his father. 

11 Paulus {o}i the Edict 41) Though senators are said to have 
their domicile in the city, still they are also regarded as having 
their domicile in the place of their birth ; their rank is held rather 
to give an additional domicile than to give a new one in place of 
the old. 

12 Ulpianus (on registration 2) Women once married to men 
of consular rank may procure leave from the Emperor, though it is 
very sparingly given, enabling them, if they contract subsequent 
marriages Avith men of lower rank, to retain their consular rank all 
the while. I know, for instance, that Antoninus Augustus accorded 
this privilege to his cousin Julia Mammaea. 1. The term senators 
we must understand to imply persons descended from patricians 
and consuls or any illustrious [iUustres] men ; as in fact such 
alone have the right to speak in the senate. 

^ See Gibbon c. 17. 



TIT. x] On the office of Consul 45 



X. 

On the office of Consul. 

Ulpianus {on the ojjice of Consul 2) It is the duty of the 
consul to appoint a board [consiliimi] for persons who propose to 
execute a manumission. 1. Individual consuls can manumit by 
themselves ; but no one who enters the names with one consid can 
manumit before another ; every manumission is confined to the 
court of one consul. It is true that it has been laid down by the 
senate that if one of two colleagues is for any reason unable to 
manumit, because he is hindered by illness or any other sufficient 
cause, the other can take the manumission. 2. There is no doubt 
that a consul can manumit his o^vn slaves in his own court. Should 
it however happen that the consul is under twenty years of age, he 
caimot manumit in his own court, as he is the very person on 
whom the decree of the senate casts the duty of examining the 
ground for requiring a board, but he can manumit in the court of 
his colleague, if the ground is held to be established. 



XL 

On the office of Prcefectus Prcetorio. 

1 AuRELius Arcadius Charisius master of the Uhclli {on the 
office of Prcefectus Prcetorio) It is requisite to state briefly 
what was the history of the original creation of the office of 
Prefect to the Prretorium. We are informed by certain writers 
that prefects to the Prsetorium were anciently established in the 
place of the Magister Equitimi ; for whereas, in the days of our 
forefathers, dictators were from time to time entrusted for a 
definite period with supreme power, and used thereupon to choose 
Magistri Equitum who were joined to them as partners in their 
duties in connexion with military matters \ and occupied the next 
place of authority mider them, it came to pass that, when power in 
the state was transferred to permanent Emperors, prefects to the 
Praetorium were appointed by the head of the state on the model 
of the Magistri Equitum. These officers were entrusted with 
ampler powers with a view to the improvement of public discipline. 

^ Read ad curas for curce ad. Cf. M. 



46 On the office of Prsefectus Pr^etorio [book i 

1. Such being the origin of the authority of the prefects, it sub- 
sequently obtained so great an extension that no appeal can be 
made from them. In fact, though it once was a question whether 
an appeal from these prefects was admissible, which in strict law it 
was, and cases were on record of appeals being made, still, by an 
imperial order Avhich was subsequently rehearsed in public, the 
right of appeal w^as taken away, the Emperor being of opinion that 
men who were called to the exalted station conferred by this office 
in consequence of their special assiduity and upon proof of their 
being men of honesty and character, would, considering the wisdom 
and enlightenment which went with their rank, pronounce similar 
decisions to those which he would have given himself. 2. The 
praetorian prefects enjoyed another privilege as well ; minors were 
not allowed to get a restitutio in integrum after one of their 
judgments in the court of any magistrate who was not a praetorian 
prefect himself 



XII. 
On the office of Prcefectiis Urhi. 

Ulpia]S"us {on the ojffice of Prefect of the Oity) As declared 
in an epistle of the Divine Severus addressed to Fabius Cilo, 
prefect of the city, the jurisdiction claimed by that magistrate 
embraces all criminal offences of every kind, not only such as are 
committed within the city, but also [some] which are committed^ 
in Italy, though without the city. 1. Where slaves flee to statues 
for refuge, also where they have been bought with their own 
money with a view to manumission, the prefect will hear their com- 
plaints against their owners. 2. He will also entertain applications 
by impecunious patrons who complain of their freedmen, especially 
where they allege that they are in ill health and desire that their 
freedmen should support them. 3. He has the power of relegation 
and deportation into any island which the Emperor may prescribe. 
4. The opening words of the epistle referred to are these: — 'as we 
have entrusted our city to your care ' : consequently any offence 
that is committed within the city must be held to be a matter 
for the prefect. Besides this, any offence committed within the 

^ Intra Italimn must be incorrect or a clumsy interpolation ; v. subs. 4 : to 
help the sense I have inserted ' some '. 



TIT. xn] On the office of Pr^fectus CJrbi 47 

hundredth milestone is a matter for the prefect ; if it is beyond 
the milestone, it lies outside his jurisdiction. 5. If a man's 
complaint is that his slave has committed adultery witli his wife, 
the case may be brought before the prefect. 6. He may also be 
applied to for an interdict quod vi ant clam or unde vl\ 

7. Moreover guardians and curators are brought before the 
Prefect of the City where they act corruptly in respect of their 
guardianships or curatorships, and the case requires such severe 
treatment that it is not adequately met by the infamy consequent 
on de suspecto proceedings ; for instance, where it can be shown 
that a man got into a guardianship by bribery, or was himself 
bribed into taking measures to prevent some ward having a proper 
guardian appointed, or that, when called upon to disclose the 
amount of the property, he deliberately understated it, or that 
he disposed of the ward's goods with plainly fraudulent intent. 

8. With regard to the above statement, that the prefect will 
hear complaints by slaves against their owners, we must not 
understand this to mean that slaves may bring criminal charges 
against their owners, (this a slave is by no means to be allowed to 
do, except in certain recognised cases,) what is supposed is that a 
slave makes a respectful representation ; slaves may, for example, 
bring before the prefect cases of cruelty or harsh treatment or 
insufficient sustenance which they have had to suffer, or indecent 
assaults to which they are or have been compelled to submit. The 
Divine Severus imposed this further duty on the Prefect of the 
City that he should protect slaves fi-om compulsory prostitution. 

9. Furthermore, the prefect will be bound to take measures to 
secure that moneychangers conduct themselves honestly in all 
branches of their business, and forbear unlawful practices. 10. If \ 
a patron alleges that he is slighted by his freedman, or complains 
that his freedman is insolent to him, or that he or- his children or 
his wife has had to put up with abusive language from him, or 
makes any similar charge ; the proper course is to apply to the 
Prefect of the City, who will punish the freedman according to the 
misbehaviour complained of. The usual way of dealing with the 
offence is to warn the man or to order him to be beaten, or to 
take still stronger measures in the way of punishment ; as a matter 
of fact, freedmen are liable to punishment in a great many cases. 
There is no doubt that if the patron can show that his freedman 
brought a criminal charge against him, or conspired against him 

1 Read aut unde vi adiri for unde vi audire. Cf. M. 
- Read -ve for -que. Cf. M. 



48 On the office of Prsefectus Urbi [book i 

with his personal enemies, he ought even to be condemned to 
labour in the mines. 11. The duties attached to the prefect's 
office comprise the supervision of the whole of the meat trade, so 
as to enable him to secure that meat shall be supplied at a 
reasonable price, accordingly the pigmarket is under this officer's 
care ; in fact the business of a similar supply of cattle and herds 
generally is a matter for him to superintend. 12. Furtlier it is 
held to be part of the duty of the prefect to see that the public are 
unmolested, and to maintain order at public exhibitions ; indeed 
he ought to have police {milites stationarii) stationed at various 
points in order to secure that the public shall not be disturbed 
and to keep himself informed of all that goes on. 13. The prefect 
may require any one to keep away from the city, or from any one 
of the regular districts, and forbid him to carry on any business or 
profession, or the vocation of pleader or practitioner, either for 
a time or altogether ; he may even exclude a man from public 
exhibitions, and, if he banishes any one from Italy, he can remove 
him from his own province as well. 14. The Divine Severus laid 
down in a rescript that persons who are alleged to have formed an 
illicit association should be prosecuted in the court of the prefect. 

Paulus {on the office of the Prefect of the City) Application 
may be made to this officer, in virtue of an epistle of the Divine 
Hadrian, either by or against bankers, and generally in pecuniary 
cases. 

Ulpianus [on the Edict 2) When the prefect goes beyond 
the bounds of the city, his authority is at an end, but he can 
appoint a judex outside the bounds. 



XIII. 

On the office of Qu^stor. 

Ulpianus {on the office of Qucestor) The original occasion 
of creating quaestors is extremely ancient, the office was almost the 
earliest magistracy instituted. In fact Gracchanus Junius in his 
seventh book entitled 'on Authorities' (de potestatibus), tells us that 
Romulus and Numa Pompilius themselves had each two qusestors 
whom they appointed to the office by taking the vote of the people, and 
not by their own selection. And however doubtful it may be whether 
there was any qurestor in the reign of Romulus or Numa, still it 



TIT. xm] On the office of Qumstor 49 

is certain that such officers existed during the reign of Tullus 
Hostilius ; indeed the opinion held by most of the old authorities 
was that Tullus Hostilius was the first to introduce quaestors into 
the administration of the state. 1. We find set down in Junius, 
Trebatius and Fenestella that they were originally called quaestors 
from the method of their inquisition. 2. Of these quaestors some 
had their particular provinces assigned them by lot, in pursuance 
of a decree of the senate passed in the consulship of Decimus 
Drusus and Porcina. No doubt the assignment of provinces by lot 
was not the practice in the case of all quaestors, as the Emperor's 
candidates were excepted ; these have nothing to do but to read 
the imperial missive in the senate. 3. At the present day the rule 
has come to be that quaestors can be taken indifferently from the 
patrician and plebeian orders ; the post amounts to a kind of 
commencement and first step in the discharge of public offices and 
in exercising the right of voting in the senate. 4. Of these officers 
there are some, as already mentioned \ who got the name of 
Emperor's candidates, and who have to read the Emperor's epistles 
before the senate. 



XIV. 

On the office of the Pr^tors. 

Ulpianus {o7i Sabinus 26) Where the praetor is a films- 
familias his fatlier can manumit in his court. 

Paulus {on Sabhius 4) Indeed the law is that he can be 
emancipated or given in adoption in his own court. 

Ulpianus {on Sabinus 38) Barbarius Philippus, being at 
the time a runaway slave, was a candidate for the praetorship 
at Rome, and became praetor designate. Here, according to 
Pomponius, the fact of his being a slave did not stand in his way, 
so as to prevent him from being praetor : as a matter of fact, he 
did discharge the office. However, let us consider the question. 
Suppose a slave has kept his legal position a long time unknown^ 
and has so discharged the office of praetor, — what are we to say ? 
will everything that he enunciated by way of edict or decree be 
null and void ? or will it be [upheld] for the sake of those persons 
who took proceedings in his court in pursuance, say, of a statute or 

^ Read diximus for dicimus. Cf. M. 

M. J. 4 



50 On the office of the Prcetors [book i 

on some other legal ground? My own opinion is that nothing would 
be set aside, and this is the more indulgent view ; the Roman 
people was quite competent to confer the authority in question, 
even on a slave ; and, if they had known that he was a slave, they 
would have given him his liberty. Much more must this power be 
held good in the case of the Emperor. 

Ulpianus {on all the Courts 1) A prsetor cannot appoint 
himself to be guardian, or to be judex in some particular case. 



XV. 

On the office of Prmfectus Vigilum. 

Paulus (on the office of Prmfectus Vigilum) In old days 
the business of preventing fires was superintended by the Threemen, 
who, because they ke})t watch at night, were called Triumviri 
nocturyii; sometimes sediles and tribunes of the plebs took a part 
in the service. There was a body of government slaves stationed 
about the gate and the walls, who could be called out if necessary ; 
and besides them there were gangs of slaves belonging to private 
owners whose duty it was to put out fires, either for pay or 
gratuitously. Lastly, the Divine Augustus thought proper to have 
the mischief dealt with by a provision of his own, 

Ulpianus {on the office of Prmfectus Vigilum) a number of 
fires having, on a particular occasion, occurred in one day. 

Paulus {on the office of Prmfectus Vigilum) As the business 
of looking after the public safety was, so he held, suited for no one 
so well as the Emperor himself, nor was any one else equal to the 
duty, he therefore stationed seven detachments in suitable places, 
each detachment to protect two districts of the city ; they were to 
be commanded by tribunes, with an officer at the head of them all, 
of the class of spectabiles, called the prefect of the watch. 1. This 
prefect deals with cases of incendiaries, housebreakers, thieves, 
robbers, harbourers of thieves, unless in any particular instance 
the ofifender is a person of such ruffianly and infamous character 
that the case is sent on to the prefect of the city. Conflagrations 
in most cases may be attributed to the negligence of occupiers, 
accordingly, where persons have paid insufficient attention to their 
fires, the prefect either orders them to be beaten, or else he remits 
the beating, but gives the parties a severe warning. 2. House- 
breaking is for the most part committed in blocks of chambers, or 



TIT. xv] Oil the office of Prsefectus Vigilum 51 

ill warehouses where people store the most valuable part of their 
property, and the housebreaker breaks open a storechamber or a 
closet or a chest ; in which case punishment is generally inflicted 
on the caretakers, and this agrees with a rescript of the Divine 
Antoninus to Erucius Clarus. The Emperor tells him that, if his 
warehouses were broken into, he can examine by torture the slaves 
who had to guard them, even though the Emperor himself should 
be a part-owner of the slaves. 3. It should be mentioned that the 
prefect of the watch is bound to be up the whole night and to go 
the rounds with his men, wearing the proper shoes, 4. and pro- 
vided with hooks and axes, and they are to take care to warn all 
householders to see that no case of fire arises through want of 
attention. Moreover he is ordered to remind every one to have a 
supply of water ready in his upper room. 5. He has also judicial 
authority over the boxmen {ccqjsarii), who engage for hire to take 
charge of people's clothes at the baths, so that if they should be 
guilty of any malpractices in connexion with the above duty this 
magistrate deals with the case. 

Ulpianus (on the office of Prcefectus Urhi) The Emperors 
Severus and Antoninus sent a rescript to Junius Rufinus the 
prefect of the watch in the following terms : — " if occupants of 
blocks of chambers or other persons carelessly omit to attend to 
their fires, you can order them to be beaten or scourged ; as for 
any who may be proved guilty of wilful arson, you may send them 
on to my friend Fabius Cilo, the prefect of the city; runaway 
slaves you must hunt up and send back to their owners." 



XVI. 

On the offices of Proconsul and Legate. 

Ulpianus {Controversies 1) The proconsul may display 
anywhere the insignia of his office as soon as he is outside the city, 
but he only exercises authority within the actual province which 
has been assigned to him. 

Marcianus {Institutes 1) All proconsuls can exercise 

jurisdiction as soon as they have left the city, not however 
contentious jurisdiction, but only voluntary ; for example free 
persons [can he emancipated^ and slaves can be manumitted in 
their court, and adoptions can be executed there. 1. No one can 

4—2 



52 On the offices of Proconsul and Legate [book i 

manumit in the court of the proconsul's legate, as he has not the 
requisite jurisdiction ; 

Ulpianus [on Sabinus 26) nor can a man adopt before 
him : in short, the legate cannot take statute actions at all. 

The same (on the ojffice of Proconsul 1) The proconsul 
ought to be careful not to be burdensome to the province in the 
matter of providing quarters, so the present Emperor and his 
father laid down in a rescript addressed to Aufidius Severianus. 

1. No proconsul is at liberty to have his own grooms ; instead of 
these, in the provinces, soldiers discharge the service required. 

2. It is better that the proconsul should set out without his wife ; 
still he can have his wife with him, if he likes, only he must under- 
stand that the senate held, in the consulship of Cotta and Messala, 
that if any offence were committed by the wife of a man who went 
out to occupy an official position, account and satisfaction would 
have to be demanded from the husband himself. 3. Before 
crossing the boundary of the province assigned to him, the 
proconsul ought to issue a proclamation announcing his arrival 
and containing some kind of recommendation of himself, by 
reference to any persons living in the province with whom he 
may be acquainted or connected, and above all the proclamation 
should excuse^ the inhabitants from coming to meet him either 
publicly or privately, on the ground that it is most suitable that 
any persons who received him should do so in their own country. 
4. He will be acting correctly and in accordance with the proper 
order of proceeding if he sends an announcement to the retiring 
proconsul to inform him on what day he will make his entry ; very 
often events of this kind, if they are unexpected and uncertain as 
to time, are distracting to the provincial population, and interfere 
with business. 5. When he enters he ougiit to take care of the 
following point too ; — he should make his entry into the province 
at the particular spot at which it is customary to do so, and 
whatever city he first arrives at, either by land or sea, he should 
attend to what the Greeks call the " epidemise " or the " cataplus " 
(places of stay and port of arrival) ; as the provincial people are 
sure to set great store by the observation of customs and privileges 
of this kind. Some provinces have this particular distinction, that 
the proconsul always arrives by sea ; one of these is Asia, in fact it 
has gone so far that the present Emperor Antoninus Augustus, iu 
answer to a request on the part of the Asiatic provincials, announced 

^ Read excusans for excusantis. Cf. M. 



TIT. xvil On the offices of Proconsul and Legate 53 

by rescript that the proconsul was absolutely bound to arrive at 
the province of Asia by sea, and land at Ephesus first of all the 
metropolitan cities. 6. After this, having made his entry into the 
province, he ought to delegate his judicial powers to his legate, but 
he must not do so before he has entered ; as it would be highly 
absurd if before he had acquired the jurisdiction himself, — and as 
a matter of fact he is not competent to exercise it before his 
entry, — he were to assign it to some one else, not liaving got any 
jurisdiction to assign. However if he should assign it before entry, 
and then, after entry, continue of the same mind, it would probably 
be held that the legate had the jurisdiction, not, that is, from the 
time when it was delegated, but from the time at which the 
proconsul entered the province. 

Papinianus {Questio7is 1) Sometimes a proconsul can 

delegate his judicial powers though he should not have yet come 
into the province ; suppose, for instance, he should be unavoidably 
delayed on his journey, whereas the legate was in a position to 
reach the province very early. 

Ulpianus {on the office of Proconsul 1) It is usual for the 
proconsul to assign to his legates the office of examining prisoners, 
the object being that they should first hear what the prisoners 
have got to say, and then send them on to him, they themselves 
releasing any innocent prisoner. But a delegation of this kind is 
irregular ; as, when a man has had given him the power of life and 
death, or of inflicting any inferior punishment, he cannot transfer 
it to another, and it follows that he cannot transfer the right of 
discharging accused persons, where that other is not qualified to 
hear the charge against them. 1. The proconsul being free to 
assign his judicial powers or not to assign them at his own 
discretion, so too, after assigning tliem, he has a right to recall 
the assignment ; still he ought not to do so without consulting the 
Emperor. 2. A legate ought not to consult the Emperor; he 
should go to his own proconsul, and this latter is bound to give an 
answer to any legate who consults him. 3. A proconsul is not 
obliged to make an absolute point of decUning presents, but he 
must use moderation ; in short, he need not be so scrupulous as to 
decline them altogether, but he must not be so grasping as to 
accept them to an excessive amount. This matter is put very well 
in a letter of the Divine Severus and the present Emperor 
Antoninus, in which they set down the limitations to be observed 
in this matter ; the words are as follows : — " With regard to 



54 On the offices of Proconsul and Legate [book i 

presents, what we hold is this, — there is an old saying, 'Not 
everything, nor every day, nor from everybody ' ; of course it is 
very discourteous to accept no presents at all, but it is a very 
contemptible thing to accept them indiscriminately, and to accept 
all is absolutely sordid." With regard to the injunction contained 
in the proconsul's instructions, that neither he nor any other officer 
is to accept any gift or present or make any purchase except of 
supplies for everyday subsistence, this does not apply to trifling 
gifts, but only where the amount is beyond what is required for 
ordinary consumption. Still, on the other hand, presents must 
not be taken to such an extent as to make them amount to 
positive largess. 

7 The same {ibid. 2) If the proconsul arrives at some^ 

populous cit}^ or at the chief town of the province, he must 
allow the place to be formally commended to him, and show 
no impatience at receiving a complimentary address, as the 
provincial population claim the right of doing these things 
as an honour to themselves; he ought also to allow holidays in 
accordance with the customs and usages theretofore in vogue. 
1. He ought to go round the temples and public works in order 
to examine whether they are in proper repair or require to be in 
any way restored, and, if there are any which are only in course of 
construction, he ought to see that they are completed, so fiir as the 
resources of the municipality admit ; he ought also to appoint in 
the regular form careful superintendents of the works, and, if 
necessary, provide military attendants to support them. 2. As 
the proconsul has plenary judicial authority, he unites in himself 
the attributes of all those who administer justice at Rome either as 
magistrates or in virtue of extraordinary powers : 

8 The same {on the Edict 39) so that he has the highest 
authority in the province after that of the Emperor, 

9 The same {on the office of Proconsul 1) and no legal 
matter can arise in the province which he is not competent to 
dispose of It is true that if a pecuniary question is raised which 
concerns the revenue and comes within the province of the imperial 
procurator, he will do well not to meddle with it. 1. Where a 
[judicial] decree is required, the proconsul cannot dispose of the 
matter by ' lihellus ' ; matters which require that a case should be 
entertained judicially cannot be so disposed of. 2. The proconsul 
ought to be patient with pleaders, but he must maintain his 

^ Read aliquam for aliam quam. Cf. M. 



TIT. xvi] On the offices of Froconsid and Legate 55 

character, so as not to appear abject, and he ought not to shrink 
from saying what he thiftks, if he finds that there are people who 
trump up cases or buy titles, nor should he allow any one to make 
a motion before him, except those who have a right to do so 
according to the terms of his own edict. 3. Some kinds of cases 
the proconsul can dispose of out of court {de piano) ; he can in 
this way order that members of a family shall show proper 
deference to their paterfamilias, or freedmen to their patrons 
and patrons' children ; he may admonish and put in dread out of 
court a son who is brought before him by his father on the 
alleged ground that he is leading an improper life ; in the same 
way he may correct an insolent freedman either by reprimand or 
by beating. 4. He is bound therefore to take care that applications 
are made to him in some regular course, so that, in short, every one 
who has a request to make may get a hearing, lest it come to pass 
that, if concession is made to the rank of one applicant or the 
importunity of another, persons in a humble position, who either 
have not secured the assistance of advocates at all or else have 
only found such as are inattentive and men of no station, will be 
unable to state their claims. 5. It will also be his duty in most 
cases to allow the assistance of counsel to women or persons who 
are under age or otherwise helpless, or to such as are out of their 
mind, if any one asks for it on their behalf ; or, if no one asks, he 
ought to allow it of his own accord. Again, if any one should 
declare that he is unable to get counsel, owing to the power of his 
opponent, in this case too the proconsul ought to find him one. It 
is not allowable that any one should be borne down by the power 
of his opponent; in fact it tends to bring odium on the officer 
himself who is at the head of the province, if there is some one 
who behaves with so little self-restraint that nobody will venture 
to undertake to appear as a pleader in opposition to him. 6. The 
above observations apply to all governors equally, and they ought 
to be attended to by others as much as by the proconsul. 

The same [ihid, 10) It must be borne in mind that until the 
new proconsul arrives, the retiring proconsul is bound to go on 
discharging all duties ; the proconsulship is one continuous office, 
and the interests of the province require that there should be 
some one there by wiiose action the provincial inhabitants can 
get their business disposed of: accordingly he is bound to ad- 
minister justice until the new proconsul arrives. 1. Dismissal 
of his legate before he leaves the province himself is a thing 



56 On the offices of Proconsul mid Legate [book i 

which he is warned against doing by the lex Julia on extortion and 
also by the rescript of the Divine Hadrian to Calpurnius Rufus, 
the proconsul of Achaia. 

11 Yenuleius Saturninus {on the office of Proconsul 2) If 
any offence is committed which requires specially severe punish- 
ment, the legate ought to have the case removed to the court of 
the proconsul : he has not himself the right to put to death or 
imprison or inflict a severe flogging. 

12 Paulus (on the Edict 2) A legate who exercises jurisdiction 
in pursuance of a delegation has the power of appointing a judex. 

13 PoMPONius {on Qulntus Mucius 10) Legates of the pro- 
consul have no authority of their own, so long as no jurisdiction 
has been delegated to them by the proconsul. 

14 Ulpianus (on the lex Julia et Papia 20). A proconsul does 
not have more than six fasces. 

15 LiciNNius RuFiNus {Rules 3) The proconsul's legates can 
themselves appoint guardians. 

16 Ulpianus {on the Edict 2) As soon as the proconsul passes 
the gate on entering Rome he lays aside his imperium. 



XVII. 

On the office of Prcefectus Augustalis. 

1 Ulpianus (on the Edict 15) The prefect of Egypt does not 
divest himself of the prefectship, or the right of imperium given 
him by statute under Augustus on the model of the proconsulship, 
until his successor has actually entered Alexandria, even though 
the latter should have arrived at the province ; this is set down in 
the prefect's instructions. 

XVIII. 
On the office of Pneses. 

1 Macer {on the office of jyra'ses 1) The title oi prceses is a 
term of general signification, consequently proconsuls and imperial 
legates and governors of ])rovinces in general, though they should 
be senators, are called prcesides ; the term proconsul is of special 
application. 



TIT. xviii] On the office of Prceses 57 

Ulpianus (on Sabinus 26) A prceses can adopt in his own 
court, just as he can emancipate a son or manumit a slave. 

Paulus {on Sabinus 13) The prceses of the province has 
a right of imperium over the men of his own province only, and he 
has the right only while he is in the province ; if he leaves it he 
becomes a private person. Sometimes he has imperium even over 
outsiders, if they commit any active offence ; it is part of the 
instructions given by the Emperor that the governor of the 
province shall take measures for ridding the province of evil- 
disposed persons, and no distinction is made as to the place from 
which such persons come. 

Ulpianus {on the Edict 39) The prceses of the province 
has the highest authority in his province after that of the Emperor. 

The same {on all the Courts 1) The 2n'ceses of the province 
cannot appoint himself guardian any more than he can make 
himself judex in a particular case. 

The same {Opinions 1) The prceses of the province is 
bound to put a check on unlawful demands and such as are made 
with duress, also to the practice of making persons contract sales 
and execute assurances by putting them in terror, or by promising 
money which then is not paid. The prceses is also to see that no 
one makes gain or suffers loss unjustly. 1. The actutil truth is 
not affected by a mistake of gossiping reporters^ ; the prceses 
should follow whatever is the proper course considering established 
facts. 2. The prceses of the province should make it matter of 
conscience to see that persons of influence and resource do not 
inflict any wrong on those in humbler station, and do not pursue 
such as take up the cause of these latter with vexatious charges 
where they are innocent. 3. The prceses of the province ought to 
take care to keep down unauthorized offerers of aid who, on 
pretence of a desire to support officers in military command, 
proceed to alarm the public ; and, where any such are found, he 
should repress them ; he should also prevent unlawful exactions 
being made on pretence of levying taxes. 4. The prceses should 
make it a matter of particular concern that no one should be 
prohibited from carrying on any lawful business, and also that 
nothing that is prohibited should be practised, and that no penalties 
should be imposed on innocent persons. 5. The jwceses of the 
province will take care that men of small means shall not suffer 

^ Read gestorum for gestarum. Cf. M. 



68 On the office of Prceses [book i 

the wrongful treatment of having their sole light or their scanty 
furniture taken from them for the use of others on the ground of 
the arrival of official attendants or soldiers. 6. The j^rceses of the 
province must see that nothing is done on the alleged behalf of 
soldiers which does not serve their general needs, by some of the 
number who put forward an unfair claim for some advantage 
confined to themselves. 7. The event of death ought not to be 
laid to the account of the physician ; but it is equally true that he 
ought to be held answerable for any mischief which he has 
occasioned by want of skill ; the wrong done by one who gives 
incorrect advice at a dangerous crisis ought not to be set down to 
human frailty and so treated as no offence at all. 8. Ofiicers who 
rule whole provinces have the power of life and death, and they 
have authority given them to send offenders to the mines. 9. Where 
the prceses, after imposing a fine, discovers that it cannot be 
discharged out of the present means of the persons whom he has 
ordered to pay it, he must check improper eagerness on the part of 
the official who has to demand the money, and relieve the party 
from pressure^ for payment. When a fine is remitted by the 
governor of the province on the ground of poverty, it ought not to 
be exacted. 

7 The same {ibid. 3) The prceses of the province ought to 
inspect buildings, and, on sufficient cause appearing, compel the 
owners to repair them, and, in case of refusal, he should employ 
lawful means for remedying the unsightly condition of the premises. 

8 JuLiANUS {Digest 1) I have often heard the present Em- 
peror declare that where a rescript says "You can apply to the 
officer who is at the head of the province," this does not put the 
proconsul or his legate or the prceses of the province under the 
necessity of undertaking to hear the case, he must consider whether 
he ought to hear it himself or appoint n. judex. 

9 Callistratus {o7i judicial inquiries 1) As a general rule, 
whenever the Emperor issues a rescript by which he refers a matter 
to the prceses of a province ; for example, where he says " You can 
api^ly to the officer who is at the head of the province," perhaps 
adding " he will consider what steps he ought to take," the pro- 
consul or the legate is not put under the necessity of undertaking 
to hear the case ; but- even if tlie words " he will consider what 

1 Read necessitati for necessitate. Cf. M. 

^ sed inserend. before quamcis, deleiid. before is oest. deb. Cf. M. 



TIT. xvni] On the office of Prceses 59 

steps he ought to take " are not added it is his duty to consider 
whether he ought to hear it himself or appoint a judex. 

LO Hermogenianus {Epitomes of Law 2) In all cases which 
are heard at Rome by the prsefect of the city, or the prsetorian 
prefect, or, again, by the consul, or the pr?etor, or any other 
Roman magistrate, the proper tribunal in the provinces is that of 
the corrector or the prceses. 

11 Marcianus {Institutes 3) In the provinces all kinds of 
applications come within the competency of the jji^eses, though at 
Rome they are made to a number of different judges : 

12 Proculus {Epistles 4) But although the oflBcer who is at 
the head of the province has to occupy the place and discharge the 
duties of every Roman magistrate, still it is his duty to consider 
not so much what is done at Rome as what the case requires. 

13 Ulpianus {o7i the office of Proconsul 7) It may be expected 
from any pi'wses of character and conduct that he should take care 
that the province which he governs shall be settled and orderly. 
This he will have no difficulty in bringing about, if he studiously 
aims at securing that the province shall be clear of bad characters, 
and he accordingly seeks them out; in fact he is bound to seek 
out persons guilty of sacrilege, highway robbers, manstealers and 
thieves, and punish them according to their respective offences ; he 
should also restrain those who give them shelter, as without such 
assistance a highway robber cannot long escape detection. 1. In 
the case of lunatics whom their friends cannot keep under control, 
the prceses ought to apply a remedy, viz. that of confining them in 
prison. This was laid down by the Divine Pius. It is true that 
the Divine brothers held that, in the case of a man who was guilty 
of parricide, an inquiry should be made as to whether he was 
feigning madness when he committed the deed, or was really and 
truly out of his mind, so that if he was feigning he might be 
punished, but, if he was insane, he might be detained in prison. 

14 Macer {on criminal trials [judicia puhlica] 2) The Divine 
Marcus and Commodus issued a rescript to Scapula Tertullus in 
these words : " If you have clearly ascertained that .Elius Priscus 
is in such a state of insanity that he is permanently out of his 
mind and so entirely incapable of reasoning, and no suspicion is 
left that he was simulating insanity when he killed his mother, you 
need not concern yourself with the question how he should be 



60 On the office of Prceses [book i 

punished, as his insanity itself is punishment enough. At the same 
time he must be closely confined, and, if you think it advisable, 
even kept in chains ; this need not^ be done by vt^ay of punishment 
so much as for his own protection and the security of his neighbours. 
If however, as is very often the case^, he has intervals of sounder 
mind, you must carefully investigate the question whether he may 
not have committed the crime on one of these occasions, and so 
have no claim to mercy on the ground of mental infirmity ; and, if 
you should find that anything of this kind is the fact you must 
refer the case to us, so that we may consider, supposing he 
committed the act at a moment when he could be held to know 
what he was doing, whether he ought not to be visited with 
punishment corresponding to the enormity of his crime. But when 
we learn by a letter from you that his position in respect of place 
and treatment is such that he is in the hands of his friends, even if 
confined to his om'u house, your proper course will be, in our 
opinion, to summon the persons who had the charge of him at the 
time and ascertain how they came to be so remiss, and then 
pronounce upon the case of each separately, according as you see 
anything to excuse or aggravate his negligence. The object of 
providing keepers for lunatics is to keep them not merely from 
doing harm to themselves, but from bringing destruction upon 
others ; and if this last-mentioned mischief should come to j)ass, 
it may well be set down to the negligence of any who were not 
sufficiently assiduous in the discharge of their office." 

15 Marcianus {on criminal trials 1) One point requires 
attending to : the officer who governs a province must not pass the 
boundary, save for the purpose of discharging a vow, and even 
then he must not spend the night beyond the border. 

16 Macer (on the office of Prceses 1) It is provided by a decree 
of the senate that actions must be entertained very sparingly 
on any questions arising upon contracts made by provincial 
governors or their suite or their freedmen before they came into the 
province, it being understood that where any such person forbears 
to bring an action in consequence of this rule, tlie right of action 
will be restored to him after he leaves the province. But if any- 
thing happen involving no act of his own, — for exami)le, he is the 
victim of some inpwia or theft, — the court will so far entertain his 
case as to let him proceed to litis contestatio, and then an order 
can be made that any property stolen should be produced and 

^ Head quod non for quoniam. Cf. M. ^ sit iusereiid. after saniore. 



TIT. xviii] On the office of Prceses 61 

deposited, or that a promise should be given with security that 
the party should appear to the action or that the thing will be 
produced. 

Celsus {Digest 3) If the prceses of the province should 
happen to manumit or appoint a guardian before he has had notice 
that his successor has arrived, these acts will be held valid. 

MoDESTiNUS {Rules 5) It is provided by plebiscite that no 
prceses shall accept a gift or present, save one of eatables and 
drinkables for a few days' consumption. 

Callistratus {on judicial inquiries 1) The magistrate 
who dispenses justice should take care to be quite ready to entertain 
applications, but he should not let anyone treat him with disrespect. 
Accordingly it is inserted in the instructions given to the governors 
of provinces that they are not to allow the provincials to be on a 
footing of easy familiarity ; as intercourse on equal terms is apt to 
lead to rank being disrespectfully treated. 1. Again, when the 
governor is hearing a case judicially, he should not fire ujd against 
persons of whom he has a bad opinion, nor ought he to be moved 
to tears by the entreaties of those in distress ; a man is not 
behaving like a firm and good judge who^ allows his countenance 
to betray his feelings. To put it in a few words, the judge should 
so administer justice as to allow the impression produced by his 
personal character to enhance the authority of his rank. 

Papinianus {Responsci 1) The imperial legate, that is, the 
prceses or corrector of the province, does not by resigning his ofiice 
lose his right of imperium. 

Papinianus {on the office of assessors) Where the prceses 
has before him a case of a slave being corrupted, or a female slave 
being debauched, or a male slave being unnaturally assaulted, 
then, if the slave alleged to be corrupted is the overseer of some 
absent' person, or is in such a position that, over and above any 
loss in respect of property, the mischief amounts to the ruin of the 
owner's whole establishment, — he ought to inflict very severe 
punishment on the offender. 

1 cujus perhaps slipshod in the author quoted : si cujus would be more gram- 
matical. 

2 Read absentis for agentis. Cf. M. 



62 On the office of Imperial Procurator [book i 

XIX. 

On the office of Imperial Procurator or Rationalis. 

1 Ulpianus {on the Edict 16) Any acts and deeds of the 
imperial procurator are acknowledged [^. comprobantm'] by the 
Emperor as if they were the Emperor's own acts\ If the 
imperial procurator should deliver something belonging to the 
Emperor as if it were his own, I should say that he does not pass 
the property in it ; he only passes the property when he is acting 
in the Emperor's behalf and delivers with his consent. In fact if 
he does any act by way of effecting a sale or a donation or a 
compromise of matters in dispute, it is void ; as it is no part of his 
duty to dispose of the Emperor's property, but to administer it 
carefully. 2. The following is a special attribute of the imperial 
procurator ; a slave of the Emperor can enter on an inheritance by 
his order, and, if the Emperor should be appointed heir, the 
procurator can himself, by intermeddling with a rich inheritance 
make the Emperor [complete] heir. 

2 Paulus (8e?itences 5) But if the property in respect of 
which the Emperor is appointed heir is insufficient for the debts, 
then, when the fact is ascertained, the course is to consult the 
Emperor ; since when a question arises as to entering on or declining 
such inheritances, it is the person appointed heir whose wishes 
should be ascertained. 

3 Callistratus (on judicial inquiries 6) Imperial pro- 
curators- have not the power of deporting; this is a punishment 
which they are not competent to inflict. 1. But if they should 
forbid any one access to land belonging to the Emperor on the 
gi'ound that his behaviour tended to a riot or was otherwise a 
wrong to the imperial tenants, the party is bound to keep away ; 
this is laid down in a rescript of the Divine Pius to Julius. 2, It 
may be added that the procurator is not able to give a man [who is 
deported] leave to return, and this is laid down in a rescript of the 
present Emperors Severus and Antoninus written in answer to an 
application by one Hermias. 

^ Sentence hopeless. 

2 Read procuratores for curatores. Cf. M. 



TIT. xx] On the office of Juridicus 63 



XX. 

On the office of Juridicus. 

1 Ulpianus {on Sabhms 26) A man can execute an adoption 
in the court o^ i\\e juridicus, as the latter is allowed to take statute 
actions. 

2 The same {ihid. 39) The juridicus who holds office at 
Alexandria is allowed by an enactment of the Divine Marcus to 
appoint guardians. 



XXI. 
On the office of one to whom jurisdiction is delegated. 

Papinianus {Questions 1) Wherever any powers are con- 
ferred specially by a statute or a decree of the senate or an 
imperial enactment, if the officer delegates his jurisdiction, such 
powers do not pass ; but powers wiiich he possesses in right of his 
magisterial office can be delegated. Hence those magistrates are 
clearly in the wrong who having the power to hold a criminal trial 
conferred upon them by a statute or a decree of the senate, such 
as the lex Jidia de adulteriis, or any other similar enactment, 
thereupon proceed to delegate their jurisdiction. A very strong 
argument in support of the above is the following : — in the lex 
Jidia de vi it is expressly provided that the judge on wliom there 
falls the duty of holding the inquiry can delegate it if he goes 
away ; so that he has a right of delegation only in case he should 
be absent, whereas in general jurisdiction can be delegated equally 
well by a magistrate wlio remains on the spot. Should the case to 
be tried be that of a man being murdered by his own slaves, the 
praetor will not be at liberty to delegate the power of holding a 
trial, deriving it as he does from a decree of the senate. 1. When 
a man has undertaken a jurisdiction wliich was given him by 
delegation, he has no original powers of his own, he only exercises 
the jurisdiction of the officer who delegated. The better opinion 
is that according to long-established practice "jurisdictio " may be 
transferred, but the right of mere command {merum iniperlum) 
which is given by a statute will not pass ; hence no one holds that 
the legate of the proconsul has the power of inflicting punishment 



64 On Jurisdiction Delegated [book i 

when he takes the proconsul's jurisdiction by delegation. (Note 
by Paulus : the better opinion is that when jurisdictio is delegated 
the right of direct command which is bound up with jurisdictio 
passes too.) 

Ulpianus {on all the Courts 3) Where ih^ prwses delegates 
his jurisdiction, the person to whom it is assigned cannot summon 
a board {consilium). 1. Where guardians and curators wish to 
sell land [in those respective capacities] the praetor or prceses can 
give permission on sufficient cause shown ; but if he delegates his 
jurisdiction, he can by no means thereby transfer the right of 
holding the requisite inquiry. 

JuLiANUS {Digest 5) Even where the person who carries on 
another man's jurisdiction is himself a prsetor, still so long as he is 
discharging the office of the other, he is not acting in virtue of his 
own powers, but is administering justice in the place of the officer 
by whose delegation he sits. 

Macer [on the office of Pneses 1). The right of holding 
inquiry into the case of a guardian who is 'suspected' can be 
delegated. Indeed it has been laid down by rescript, with a view 
to the benefit of wards, that, where jurisdiction is delegated in 
general terms, the above right is included ; the words are as 
follows :— " The Emperors Severus and Antoninus to Braduas, 
Proconsul of Africa. As you have handed over your own juris- 
diction to your legates, it follows that they can hold an inquiry 
into cases of guardians who are suspected." 1. Delegation can be 
validly made of the power to grant possessio bonorum, the power 
to make an order granting possession in case an undertaking 
against damnum infectum should not be given to one who applied 
for it, to admit a woman into possession on behalf of an unborn 
child, to admit a legatee into possession for the purpose of pre- 
serving legacies. 

5 Paulus {on Plautius 18) It is quite clear that [a man] to 
whom jurisdiction is delegated cannot delegate it over to another. 
1. When jurisdiction is delegated to a private person, the delegation 
is held to include imperium as well, such as does not amount to 
merum imperium ; there is no such thing as jurisdiction not 
involving authority to inflict some slight punishment. 



TIT. xxii] On the office of Assessors 65 

XXII. 
On the office of Assessors. 

1 Paulus {on the office of Assessors) The whole office of an 
assessor, — one, it may be said, in which the skill of those learned 
in the law comes into play, — is exercised in cases which are pretty 
much such as follow : judicial inquiries, motions, applications by 
libel, edicts, decrees, epistles. 

2 Marcianus (on criminal trials 1) A freedman can be 
an assessor. As for persons under infamia, there are no statutes 
forbidding them to act, but in my opinion they are not qualified to 
discharge the duty of assessor, and in fact there is said to be an 
imperial enactment to this effect. 

3 Macer (on the office of Prceses 1) If some one province 
comes to be divided and the two parts are put under two prcesides 
respectively, as we see in the cases of Germania and Mysia, a native 
of either part can be an assessor in the other, and he is not held 
to be acting in his own province. 

4 Papinianus (Responsa 4) On the decease of an Imperial 
legate his attendants {comltes) have a right to their pay for the 
rest of the period for which the legate appointed them to serve, 
provided always that they do not act as attendants to any one else 
during the time. A different rule is applied where the legate made 
way for a successor before the regular termination of his office. 

5 Paulus (Sentences 1) A member of a board \ while acting 
as assessor, is by no means at liberty to adjourn the matter into his 
own audience chamber, but he is allowed to take it into the 
chamber of some one else. 

6 Papinianus (Responsa 1) Where a municipal curator sum- 
mons a board, a man of the same municipium is not debarred from 
acting as assessor, as he is not in receipt of official pay. 

^ Read consiliario for consiliari. Cf. M. 



M. J. 



SECOND BOOK. 

I. 

On Jurisdictio. 

1 Ulpianus {Rules \) The office of one who exercises juris- 
dictio is most comprehensive ; he can grant [an order for] bonorum 
possessio and put persons into possession, he can appoint guardians 
to children under age who have none, he can nominate a judge 
to parties in litigation. 

2 Javolenus {extracts from Cassius 6) When an officer is 
given jurisdictio, he is also clearly allowed those powers without 
which jurisdictio cannot take its due course. 

3 Ulpianus {on the office of Qucestor 2) Imperium is either 
simple (nierum) or mixed. Simple imperium is where an officer 
is in possession of the power of the sword for the purpose of 
punishing^ evildoers ; when it is also called potestas. Mixed im- 
perium, which in fact includes jurisdictio, is that which is evinced 
in granting bonorum possessio ; jurisdictio extends to the power 
of nominating a judge. 

4 The same {on the Edict 1) The power of ordering an under- 
taking to be given by a praetorian stipulation, and of putting 
persons into possession, belongs more to imperium than to juris- 
dictio. 

5 JuLiANUS (Digest 1) By the custom of our forefathers it 
has been brought to pass that an officer who can delegate his 
jurisdictio can only be one who possesses it in his own right and 
not by the gift of another ; 

6 Paulus (on the Edict 2) because [in the latter case] the 
jurisdictio would not be given him directly, and the jurisdictio 

^ in insereud. after animadvertendum. 



TIT. i] On jurisdictio 67 

which he has by delegation is not bestowed by the statute but 
only confirmed by it. Hence if an officer who delegated his juris- 
dictio dies before the person to whom it was delegated has begun 
to execute the matter in hand, then, according to Labeo, the 
delegation is annulled, in accordance with the rule in ordinary 
cases [of mandatum]. 

Ulpianus {on the Edict 3) If any one should maliciously 
destroy a notice Avhich is made in the [pr?etor's] album, or on 
paper [charta], or any other substance, such notice being relative 
to the praetor's standing jurisdiction, and not dealing with a special 
occasion, an action is allowed against the offender for five hundred 
aurei, in which any one may sue (populare est). 

I. The words of the Edict include slaves and sons under potestas, 
moreover the prsetor refers to both sexes alike. 2. Should the 
damage be done while the notice is being put up, or before it has 
been put up, no doubt the words of the Edict Avill not apply, but, 
according to Pomponius, the i)rinciple of the Edict ought to be held 
to go far enough to include this case. 3. In the case of slaves, 
where their owners do not undertake their defence, and in that of 
persons destitute of means, bodily torture is to be used. 4. The 
words of the Edict include the term "maliciously" [dolo malo]; 
because, if any one should act in the way described through 
ignorance, or want of education, or by the praetor's own order, 
or by accident, he is not liable. 5. The Edict extends to the case 
of one who carries the written matter away, though he should not 
damage it; and it applies equally whether the party commits the 
offence with his own hands or instigates another to commit it. 
If one man did the act without malice, but another induced him 
with malice, the one who induced will be liable ; if both act with 
malice, both will be liable; certainly, if several join in the act, 
whether they do damage or instigate to it, they will all be liable ; 

Gaius (o7i the provincial Edict 1) and it goes as far as 
this — that it is not enough for one of the parties alone to pay 
the penalty. 

Paulus (on the Edict 3) If a household of slaves should 
damage the album, the Edict does not deal with the case in the 
way in which it does with theft, by providing that if the owner, 
assuming that he chose to defend tlie action, pays on behalf of one 
of such slaves as much as the man would pay himself if he were 
free, then no action is to be allowed in respect of the others : the 
reason for this may be tliat, in the case we are considering, the 

5—2 



68 On jurisdictio [book ii 

object is to redress a slight offered to the dignity of the prsetorian 
office, and it is regarded as a case of so many distinct acts; just as, 
when a number of slaves have committed an injuria or have done 
damage to property, [the same rule is observed,] on the ground 
that there are several distinct acts, and not one only as in the case 
of theft. Octavenus says that the slave-owner ought equally to be 
relieved in the case under discussion ; but this can only be said 
where the slaves maliciously contrive that some one else shall destroy 
the album, as in that case there is one common plot, and not a num- 
ber of distinct acts. Pomponius makes the same remark (lib. X.). 

10 Ulpianus {on the Edict 3) The officer who presides at the 
administration of justice ought not to administer it for his own 
case nor for that of his wife or his children, nor for his freedmen 
or any others whom he has about him. 

11 Gaius {on the provincial Edict 1) If the same plaintiff 
brings a number of actions against tlie same defendant, and the 
amount sued for is low enough in every separate case to bring 
it within the jurisdiction of the judge, but the aggregate amount 
of all taken together exceeds the limits of his jurisdiction, Sabinus, 
Cassius and Proculus hold that the action can be carried on before 
the judge in question, and this opinion is confirmed by a rescript 
of the Emperor Antoninus. 1. Again, if there are reciprocal rights 
of action between two parties, in respect of which one asks for 
a sum below the limit, and the other for one above it, the one who 
asks for the smaller sum must proceed before the same judge, 
so that it may not be in the power of my opponent, if he is 
disposed to act vexatiously, to say whether I shall be allowed to 
argue my case before the same judge or not. 2. If a single action 
is brought in which a number of persons are plaintiffs at the 
same time, as, for instance, an action for dividing an inheritance 
{familice erciscimdce), for partition of common property {cotmnuni 
dividundo), for settling boundaries {Jinium regundorimi) — ought 
we, in order to determine tlie jurisdiction of the judge who takes 
the case, to consider the value of the separate shares, which is 
what Ofilius and Proculus maintain, on the ground that each 
person is a party to the suit in virtue of his own particular share, 
or ought we rather to consider the value of the whole property, 
because the title to the whole is brought in question at the trial, 
and the whole may possibly be adjudged to one party? This last 
view is held by Cassius and Pegasus, and there is no doubt their 
opinion is reasonable. 



TIT. i] On jurisdictio 69 

Ulpianus {on the Edict 18) A municipal magistrate is not 
allowed to visit a slave with severe punisliment, but he cannot 
be denied the right of inflicting moderate chastisement. 

The same {on Sdbinus 51) The officer who orders any one 
to act as judex must be a magistrate. 1. Magistrates, or persons 
who are invested with any official authority, such as proconsuls, 
or praetors, or governors of provinces in general, cannot order a 
man to act as judge on a day by which they will themselves have 
returned to private life. 

The same {on the Edict 39) It is established law and is 
in accordance with actual practice that where an officer of higher 
or equal rank submits to the jurisdiction of another, the juris- 
diction may be exercised either for or against him. 

The same {on all the Courts 2) If parties by mistake go 
before one prsetor, intending to go before another, the proceedings 
so far are void. No one can be allowed to say that the parties 
agreed upon the particular prceses, since, as Julianus says, where 
persons are under a mistake there is no agreement: what indeed 
can be more inconsistent with agreement than a mistake wliich 
is a proof of ignorance? 

The same {on all the Com-ts 3) It is the practice of the 
praetor to delegate his jurisdiction, and he either delegates it 
altogether, or with reference to a particular case; whereupon the 
person to whom the jurisdiction is delegated acts in the place of 
the officer delegating, and not in Ids own character. 

The same {Opinions 1) Just as the praetor is able to delegate 
his entire jurisdiction to another, so he is able to delegate it with 
reference to particular persons or a particular case, especially 
where he has a sufficient reason in the fact that he himself under- 
took the advocacy of one of the parties before he was a magistrate. 

Africanus {Questions 7) If two parties should agree that 
some other praetor should exercise jurisdiction than the one to 
whom it regularly belongs, and, before application were made 
to the praetor agreed upon, there should be a cliange of mind, — 
it is beyond doubt that no one could be compelled to abide by 
such an agi'eement. 

Ulpianus {Fideicommissa 6) An unmarried woman was 
defendant to an action which was brought before a judge who 
was competent to hear it, and judgment was given against her; 
after which she became the wife of a man who was subject to a 



70 On jurisdictio [book ii 

different jurisdiction, and the question arose whether the order 
of the original judge could be carried out. My answer was that 
it could, as the order was already made ; but in fact I should hold 
tlie same if the marriage had taken place after the hearing had 
begun, but before judgment was given ; so that the decision would 
properly be given by the original judge. A similar rule ought 
to be observed in all cases of this kind. 1. Whenever a question 
arises as to whether the amount which determines jurisdiction is 
reached or not, the point to inquire into always is how much 
is sued for, not what is the amount of the debt. 

20 Paulus {on the Edict 1) An officer who exercises juris- 
diction outside his local limits may be disobeyed with impunity. 
The same rule holds wliere he affects to exercise jurisdiction with 
reference to an amount beyond his competency. 



II. 

A MAN TO BE DEALT WITH AFTER THE LIKE RULE TO THAT 
WHICH HE MAINTAINED AGAINST ANOTHER. 

Ulpianus {on the Edict 3) This Edict is one of perfect 
fairness and can give no reasonable occasion of protest to any one : 
indeed, how can anybody complain of having the same law applied 
to his own case that he applied or caused to be applied to other 
people? 1. "If a man who holds any magistracy or authority 
should establish any new law to the prejudice of another, he must 
himself at any time thereafter, on the application of an opponent 
of his own, be dealt with in accordance with the same rule ; again, 
if a man should procure the application of any new law in the 
court of one holding some magistracy or^ authority, judgment 
must at any time thereafter, on the application of his opponent, 
be given against him in accordance with such new law," so that, 
in short, whatever a man himself deemed to be just in the case 
of another, he must suffer the same to be held good in his own 
case too. 2. The words " whatever the officer who presides at the 
jurisdictio establishes " are understood by reference to the result ; 
we must not confine ourselves to the words ; consequently, if the 
officer should wish to establish something for law, but should be 
checked, and his judgment should not take effect, the Edict does 

^ Read oe for que. 



TIT. ii] After the like rule etc. 71 

not apply. The word "statuit" (establishes) implies that the 
matter is completed, and the wrong is consummated, not merely 
begun. It follows that if a man exercises jurisdiction between 
parties between whom he is not competent to exercise it, then, 
seeing that the proceeding is treated as null and void, and there is 
in fact no decision at all, we must hold that the Edict does not 
apply ; how indeed could there be any harm done by the attempt, 
where the illegality produced no effect? 

Paulus {on the Edict 3) By this Edict what has to be 
punished is malice in the person exercising jurisdiction ; if the 
law has been laid down otherwise than it ought, owing to an over- 
sight on the part of the assessor, the ill consequence ought to fall 
on the assessor himself, and not on the magistrate. 

Ulpianus {on the Edict 3) If a man has procured for 
himself the benefit of an unjust rule being applied to an opponent, 
he will be dealt with according to the same rule himself only 
where the thing was done on his own application ; if it was not 
on his application, he will suffer no penalty. But if he got the 
order, then, whether he put the rule in force or only obtained 
leave to put it in force without doing so, he will be punished 
under this Edict. 1. If it was my procurator who made the 
application, the question arises who it is that will be dealt with 
according to the same rule ; Pomponius holds that it is myself 
only, at any rate, if I specially instructed the procurator, or subse- 
quently ratified what he did. But if a guardian or the curator 
of a lunatic or minor made the application, he is punished under 
the Edict himself. The same course must be followed with a 
procurator too, if he was made ^procurator on his own behalf.' 
2. The penalty is laid down against every one who comes within 
the terms of the Edict, on the application not only of the party 
who was injured by him, but of any person whatever who takes 
proceedings at any distance of time. 3. Suppose a person for 
whom you are surety obtains an order forbidding some debtor 
of his to plead [a particular] exceptio against him, and, after that, 
you desire to plead [a similar] exceptio in respect of your engage- 
ment as surety, neither you nor the principal debtor himself can 
get leave to do so ; even though in the meantime this should entail 
a wrong on you if your debtor is insolvent. But if you yourself 
are hit by the Edict, the principal debtor can still plead the 
exceptio, but you cannot, so that the penalty incurred by you 
[the surety] will not affect the principal debtor; accordingly you 



72 After the like rule etc. [book n 

will have no right of action on mandatum against him. 4. If my 
son in the exercise of a magistracy incurs the penalty of the Edict, 
will the Edict apply in respect of such actions as I bring in his 
right ? My opinion is that it will not, or else my relation to him 
will put me in a worse legal position. 5. With regard to the 
praetor's declaration that a person in the case mentioned is to 
be dealt with "after the same rule," will the liability to this 
penalty pass to his heir as well ? Julianus informs us that not 
only the person himself loses the right of action, but his heir does 
too. 6. He adds this, which is not unreasonable, that he is 
exposed to the penalty in question not only in connexion with 
such rights of action as he had at the time when he brought 
himself within the terms of the Edict, but in connexion also with 
any that he may acquire subsequently. 7- The principle under 
discussion (so Julianus holds) will not allow money already paid 
to be recovered, as there was still ground for the payment in 
natural law, and that fact bars the recovery. 

Gaius (on the provincial Edict 1) The prsetor makes one 
rather nice reservation, in these words : — " save always where 
one of the above persons [against whom relief is promised] had 
acted to the prejudice of some one who had himself done similar 
prejudice to another." This reservation is perfectly sound, as 
otherwise a magistrate who seeks to uphold the Edict, or a 
litigating party who desires to enjoy the benefit conferred by the 
Edict, might himself incur the penalty which the very Edict 
imposes. 



III. 

Where a man refuses obedience to the magistrate 
exercising jurisdiction. 

Ulpianus {on the Edict 1) All magistrates, save only 

duumvirs, are allowed, in accordance with the rights appertaining 
to their respective authorities, to protect their administration of 
justice by means of penal sentences. 1. A man is held to refuse 
obedience to the magistrate exercising jurisdiction when he declines 
to comply with the final direction given in the course of the magis- 
trate's administration of the law; for example, where he refuses 
to allow moveable property to be made the subject of a vindication 
against him, but does allow it to be driven or carried away [, it is 



TIT. m] Where a man refuses obedievice 73 

held that he obeys] ^; but, if he resists even these subsequent 
measures, then it is held that he does not obey. 2. If a procurato?'- 
or guardian or curator refuses obedience to the officer exercising 
jurisdiction, the offender is himself punished, not the principal 
or the ward. 3. This Edict, so Labeo says, applies not only to 
a defendant who disobeys, but to a plaintiff as well. 4. The action 
is not for an amount representing the plaintiff's interest in the 
matter, but is confined to the direct loss ; and, as it provides a 
penalty simply, it is not allowed to be brought after a year nor 
against the heir of the wrongdoer. 



IV. 

On Citation. 

Paulus {o7i the Edict 4) To cite a person to appear 
is to cite him for the purpose of a trial at law. 

Ulpianus {on the Edict 5) No citation can be made of 
a consul or a prefect or a preetor or a proconsul or any other 
magistrate who possesses imperium, and Avho consequently can 
exercise coercive powers and order persons to be put in prison ; 
nor of a pontifex while he is performing sacred rites, nor of such 
as cannot stir from the spot where they are, because of the 
religious character attached to the place, nor, again, of one who 
is riding on his way in the service of the government on a horse 
which is state property. Furthermore a man must not be sum- 
moned who is in the act of being married, nor a woman in the like 
case ; nor a judge who is at the moment hearing a case ; nor a man 
who is pleading before the prsetor ; nor one who is conducting the 
funeral of a member of his own household, or is performing due 
rites to the dead; 

Callistratus {judicicd inquiries 1) nor persons who are 
attending a funeral ;— and this rule we find is confirmed by a 
rescript of the Divine Brothers : — 

Ulpianus {on the Edict 5) nor any one who is compelled 
to appear in court or in some particular place in order to take part 
in a trial; nor lunatics nor infant children. 1. The praetor says 
"No one is to cite to appear without my permission a parent, 
a patron or patroness, or the children or parents of a patron or 
^ obtemperasse iuserend. M. 



74 On Citation [book ii 

patroness." 2. The word parent must here be taken to be applied 
to both sexes, but whether it includes all ancestors, however 
remote, is a question. Some say that the term parent is applicable 
up to the fifth degree in the ascending line {usque ad tritavum), 
and those more remote still are called majores ; this, according to 
Pomponius, was the view of the old lawyers ; but Gains Cassius 
applies the word to all ancestors, however remote; this makes it 
a more honourable appellation, and the usage has very properly 
been adopted. 3. The term parent, in the opinion of Labeo, may 
be applied to those who have become fathers and mothers in 
slavery, and is not confined S so Severus said, to cases in which 
the children are legitimate, so that even where a son is the off- 
spring of random intercourse, he cannot cite his mother, 

Paulus {on the Edict 4) because the mother is always an 
ascertained person, even though she conceived in random inter- 
course; but the father is the person pointed out as such by the 
marriage. 

The same {Sentences 1) No one can cite his natural 

parents, the same unvarying tokens of respect are to be observed 
towards all parents. 

The same {on the Edict 4) A man may cite with impunity 
the parents of his adoptive father, because they are not his own 
parents, as he can only become cognate to those to whom he 
becomes agnate. 

Ulpianus {on the Edict 5) A man cannot cite his adoi)tive 
father as long as he is in his /j>o^6.s(^ff8, though this depends 
more on the law of jwtestas than on the Edict of the prsetor ; 
except in the case of a son who has castrense peculium, as in such 
a case leave will be given on cause shown. But a natural parent 
cannot be cited even by a son who is in some otlier family by 
adoption. 1. The Edict has "patron or patroness": the term 
patron must be here held to comprise persons who have manu- 
mitted out of slavery, and to apply where a man had exposed 
a decision in favour of free birth procured collusively ; also where 
any one is pronounced a freedman in a ' prejudicial ' action on the 
question, when, in fact, he was not one, or where I swear that 
a man is my freedman ; just as, conversely, I am not held to be 
patron if the decision is against me, or I tender the oath and the 
man swears that he is not my freedman. 2. But if I compelled 

^ Read tantum for tamen. Cf. M. 



TIT. iv] On Citation 76 

my freedman or freedwoman to take an oath not to marry, he 
or she may cite me with impunity. Celsus indeed says that 
in the case of a freedman in this position the immunity [forfeited 
by me] cannot pass to my son in my Hfetime ; but Julianus gives 
the contrary opinion; and most autliorities agree with Julianus's 
view. If this is correct, the result will be that in this case the 
patron may be cited to appear, but the son, being regarded as free 
of offence, cannot be cited. 

9 Paulus ion the Edict 4) Again a man who manumits a 

slave in pursuance of a fideicommissum cannot be cited [by the 
person manumitted] though he might have been cited in order to 
compel him to manumit. 

10 Ulpianus {on the Edict 5) But if I bought the slave on 
the express understanding that I should manumit him, and he 
acquires his liberty through the enactment of the Divine Marcus, 
then, seeing that I am his patron, he cannot cite me. If, on 
the other hand, I bought him with his own money, and then 
broke faith with him, I shall not be deemed to be his patron. 
1. Where a woman is compelled to prostitute herself contrary to 
the conditions of sale, the vendor will be her patron, assuming 
that she was sold on the terms that if she were compelled to 
prostitute herself she should become free. But if a vendor in 
the same case reserves the right to lay hands on the woman [so 
as to recover possession of her, in the same event], and, having 
done so, he himself compels her to prostitute herself, then, inasmuch 
as she still becomes free, she acquires her freedom through the 
vendor, but it is not right that any honour should be paid to him: 
Marcellus himself gives this opinion (Digest 6). 2. A man is 
understood to be called patron even if he should have suffered 
capitis diminutio, or his freedman should have suffered it, if it 
is a case where the arrogation was effected in an underhand way ; 
for, seeing that by the very act* of getting himself arrogated, the 
freedman conceals his condition, it is not the ostensible object 
of the proceeding that he should become ingenuus. 3. Even^ if 
he has been given the right to wear gold rings {jus anulorum), 
I should say that he ought to show respect to his patron, though 
he is qualified for all the functions attached to free birth. It is 
different where he is re-established in the position of one free 
by birth ; the act of the Emperor makes him ivigemms. 4. A man •/ 
who is manumitted by a corporation or a guild or a city can 
1 For quo read quod. Cf. M. '^ After sed read et. 



76 On Citation [book ii 

cite auy individual member of the corporate body; as he is 
no freedman of the individuals. But he is bound to treat the 
municipality (res publico) with deference, and if he desires to go 
to law with a municipality or a corporation, he must apply for 
permission under the Edict, though he should intend to cite 
one who is appointed agent for the body [actor]. 5. The terms 
"children" and "parents" of the patron and patroness we must 
regard as including both sexes. 6. If the patron is reduced to 
peregrine condition by a sentence of deportation, then, in the 
opinion of Pomponius, he loses his privilege. But if he should 
be reinstated he will recover the full benefit of this Edict as well. 
7. The expression " parents of the patron " confers the exemption 
even on adoptive parents ; but only so long as the adoptive 
relation lasts. 8. If my son is given in adoption, he cannot be 
cited by my freedman ; neither can my grandson, wliere he 
was born into the adoptive family. But if my son, after 
emancipation, adopts a son, such a grandson can be cited 
[by my freedman], as he is a stranger to me. 9. The word liberi 
(children), according to Cassius, is applied in a way corresponding 
to the use of the word parent, that is, even beyond a descendant 
in the fifth degree. 10. If a freedwoman has a child by her 
patron, she and her son are forbidden to cite each other. 
11. But if the children of a patron should have brought a capital 
accusation against their father's freedman, or have taken proceed- 
ings to have him judicially pronounced a slave, no honour need 
be shown them. 12. The prsetor says: — "No one is to cite 
without my permission," etc. He will give permission if the action 
brought against a patron or a parent is not one which involves 
infamy or which wounds his honour. But in every case he ought 
to act on cause shown ; as in some cases, in the opinion of Pedius, 
he ought to allow a patron to be cited by his freedman, even 
where the action involves infamy, where, for instance, he has 
done the freedman some outrageous wrong, say, he scourged him. 
13. The honour in question is always to be paid to the patron, 
even though he is concerned as a guardian, or curator, or voluntary 
defendant on behalf of another {defensor), or as an agent (actor). 
But where a guardian or curator of the patron is concerned, 
such a person can be cited with impunity, according to Pomponius, 
and this is the better opinion. 

11 Paulus {o7i the Edict 4) Although the praetor does not 
proceed to say that he will allow penal proceedings [only] on 
sufiicient cause shown, still, according to Labeo, his jurisdiction 



TIT. iv] On Citation 77 

must be exercised subject to some limitation ; suppose, for example, 
the freedmau should think better of his intention and abandon the 
action, or the patron, although cited, should not appear, or he 
should have no objection to being cited ; although the language of 
the Edict does not admit the above construction. 

L2 Ulpianus {on the Edict 57) If a freedman should, in 

contravention of the praetor's Edict, cite a son of his patron 
whom that patron has under his potestas ; the proper view to take 
is that, in the absence of the father, the son under potestas ought 
to get relief, and he has a good penal action in factum against 
the freedman ; viz. one for fifty aurei. 

L3 MoDESTiNus (Pandects 10) The general rule is that those 
persons to whom deference ought to be shown cannot be cited 
without the leave of the praetor. 

14 Papinianus (Responsa 1) Where a freedman is put on his 
trial by his patron, and, with a view to his defence, makes a 
number of applications to the j^ra^ses of the province in his 
court, he is not held to be thereby citing the patron who accuses 
him. 

L5 Paulus (Questions 1) A freedman presented a petition to 
the Emperor against his patron in which he did not conceal the 
fact that he was his freedman ; assuming that he obtains a rescript 
such as he prays, is it held to follow that the penalty due under 
the Edict is remitted ? My answer was this : — I do not think that 
the praetor's Edict applies to such a case; a man who presents 
a petition to the Emperor or the prcEses is not held to be citing 
his patron. 

.6 The same (Responsa 2) The question was asked whether 
a guardian could cite his own patroness without the leave 
of the praetor, when acting on behalf of his ward. I answered 
that the person in question, while acting on behalf of his ward, 
might go so far as to cite his own patroness without the leave 
of the praetor. 

The same (Sentences 1) Where a man has given an under- 
taking at the magistrate's office that he will produce any one, 
he is compellable to do so. Moreover a man who has promised 
by enrolled assurance that he will produce any one, even though 
he give no undertaking at the office, is still compelled to pro- 
duce him^ 

1 This is clearly the meaning intended ; the wording is uncertain. 



78 On Citation [book ii 

18 Gaius {on the Tivelve Tables 1) Most writers hold that 
it is not lawful to cite any person from his own house ; a man's 
house, they say, being his most secure shelter and retreat, so 
that any one who should cite him out of it must be held to be 
using violence ; 

19 Paulus (oil the Edict 1) and, if such person is undefended 
and he keeps out of the way, it is clear that he suffers quite 
sufficient penalty by the fact that the other party is put in 
possession of liis property. But if he makes himself accessible 
or he can be seen from any public place, then, according to 
Julian us, he can be properly cited. 

20 Gaius {on the Twelve Tables 1) There is no doubt that 
a man can lawfully be cited from his housedoor, or the baths, 
or the theatre. 

21 Paulus (on the Edict 1) Still, though a man who is in his 
house can sometimes be cited, no one ought to be dragged out of 
his own dwellinghouse. 

22 Gaius (the Twelve Tables 1) Again, one is not allowed to 
cite a girl under the age of puberty, who is subject to some 
one else's potestas. 1. Where a man is cited, two cases may 
occur in which he must be excused from attending ; one where 
some one undertakes his defence in his place, and the other 
where, before they have come into Court, the parties agree to 
compromise the matter. 

23 Marcianus {Institutions 3) When a man is freedman to 
several patrons in conmion, he is still bound to ask the prpetor 
for leave to cite any one of such patrons in particular, or else he 
will incur the penalty prescribed by the Edict. 

24 Ulpianus {on the Edict 5) If any one contravenes the 
above regulations, an action is allowed against him for fifty aurei ; 
but this will not be given to the heir [of the patron], nor against 
the heir [of the freedman], nor after the lapse of a year. 

25 MoDESTiNUS {on penalties 1) If a freedman should cite 
a patron without getting permission under the Edict, then, on 
complaint made by the patron, he either has to pay the above- 
mentioned penalty, viz. fifty aurei, or else he is chastised by order 
of the prefect of the city as failing in respect, that is, if he is 
ascertained to be devoid of means. 



TIT. v] Where one who is cited /ails to appear 79 

V. 
Where one who is cited fails to appear ; also where 

A MAN cites one WHOM, ACCORDING TO THE EdICT, HE 
HAS NO RIGHT TO CITE. 

Ulpianus (on the Edict 1) Where any one who is cited 
offers as a surety for his appearance at the trial a person 
who is not subject to the jurisdiction of the judge before whom 
he is himself cited, such a surety is not regarded as offered at all, 
unless he expressly renounces his privilege. 

Paulus {on the Edict 1) A man who is cited on 

whatever ground before the praetor, or any other officer who 
presides at the administration of justice, is bound to attend for 
the purpose of having the very point ascertained whether the 
officer in question really has the jurisdiction or not. 1. Wliere 
one who is cited declines to attend, he will be ordered by 
the proper judge to pay such fine as it comes within the juris- 
diction of that judge to impose ; but on sufficient cause shown, 
as allowance must be made for the man's want of education ; 
moreover if the plaintiff has no interest in the other party appear- 
ing at that precise time, the pr?etor remits the penalty ; for instance 
on the ground that the day was a holiday {dies feriatus). 

Ulpianus {on Sabinus 47) Where a man promises to appear 
at a trial, but does not go on to name a penalty which he will pay 
in case of non-appearance, the clear rule is that an action can 
be brought for unliquidated damages to an amount equivalent to 
the plaintiff's interest ; and so says Celsus himself. 

VI. 

Persons cited bound to appear or else give a 
guarantee or an undertaking. 

Paulus {on the Edict 1) It is provided by the Edict that, 
when a surety is offered that a person will appear in answer to a 
summons, the surety so offered must be of sufficient means, regard 
being had to the station of the defendant, except where the surety 
is a near connexion of the defendant, in which case any kind of 
surety must be accepted ; suppose, for example, a man is offered 
as surety for his parent or patron. 



80 Persons cited hound to appear [book n 

Callistratus {on the monitory Edict 1) or, again, for his 
patroness, or his own children, or his wife or his daughter-in-law. 
In these cases any kind of surety has to be accepted \ and where 
the plaintiff refuses to accept a surety, knowing that it is a case of 
a close connexion such as above mentioned, there is a good right 
of action for fifty aurel, 

Paulus {on the Edict 4) since in the case of persons closely 
connected any surety is deemed and taken to be of sufficient means. 

Ulpianus {on the Edict 58) Where a man has promised 
that two particular men should appear at the trial, and thereupon 
he produces one but not the other, he cannot be held to procure 
them to appear in fulfilment of his promise, seeing that one of the 
two was not produced. 



VII. 

No ONE TO RELEASE BY FORCE A MAN WHO IS CITED. 

Ulpianus {on the Edict 5) The praetor published this 
Edict in order that he might keep in check by fear of punishment 
such as forcibly release persons who are cited. 1. Indeed we 
read in Pomponius that where the offender is a slave, a noxal 
action must be given, unless the slave did the act with his owner's 
knowledge ; in that case his owner must submit to the action, 
without being allowed the alternative of surrender for noxa. 
2. Ofilius holds that this Edict will not apply where a person has 
been released who was never legally liable to be cited, for 
instance, a parent, or a patron, or one of the other persons men- 
tioned ; and this seems to me the sounder opinion. Certainly 
where it was a wrong to cite the party it was no wrong to 
release him. 

Paulus {on the Edict 4) Both, no doubt, contravene the 
Edict, the freedman who cites his patron, and the other party 
who forcibly releases him ; but the freedman is in the worse 
position, if he acts the part of plaintiff where his own wrong is just 
as great. The same equitable consideration applies in the case of 
one who was cited to a place to which he was not liable to 
be cited ; but here the observation may be made more strongly 
still that a man who has a right to decline to be sued at that 
place, cannot be alleged to be released with violence. 
^ quiois inserend. after accipitiir. M. 



TIT. vn] No one to release hy force etc. 81 

Ulpianus {on the Edict 5) Where a man sets free a slave 
who was cited, Pedius holds that the Edict does not apply, 
because the slave was not a person who could legally be cited. 
That being the case, it comes to this ; there will have to be an 
action for production. 1. If a man should set free some one 
who is cited before a subordinate judge {judex pedmieus), the 
penalty mentioned in the Edict will not be incurred. 2. With 
regard to the rule laid down by the praetor in the words " release 
with violence" {vi), does it apply where simple force is used, or 
must there be malice {dolus malus) as well ? Release by force is 
enough, though there should be no malice. 

Paulus {on the Edict 4) The word 'eximere' (release), 

so Pomponius says, is a comprehensive term. ' Eripere ' means to 
take out of a man's hands by actual seizure ; * eximere ' is to set 
free in any way whatever. Suppose for instance one should 
not positively seize a man, but contrive some hindrance in order 
to prevent him from coming to the magistrate's court, so as to 
cause the regular time for bringing the action to expire, or the 
property at stake to be lost by lapse of time ; the party would be 
held to have released the person in question, though there should 
be no physical release. Similarly if any one, without taking a man 
away, detains him where he is, he is liable under the same words. 

1. If a man releases some one who is cited on a vexatious 
pretence, there is no doubt that he is liable under the Edict. 

2. The prsetor says "and he is not to contrive maliciously to 
procure him to be released." Of course it is possible that the thing 
should be done otherwise than maliciously, for instance, when 
there is good ground in law for a release. 

Ulpianus {on the Edict 5) If a man releases some one 

through the agency of a third person, he comes under these words, 
whether he is himself present or absent. 1. Where a man effects 
a forcible release, an action in factum is allowed against him, in 
which the measure of damages is not the actual amount of loss 
suffered, but the value set by the plaintiff on the subject-matter of 
the [original] litigation. This rule is expressly added to make it 
clear that where a plaintiff has brought a vexatious action, still he 
can recover the damages referred to. 2. He must however show 
that the result of the release was that the defendant was not 
brought before the court. If he really was brought after all, there 
is no penalty, the words only apply where the act made a real 
difference. 3. The action is in factum, and, if there are more 

M. J. 6 



82 No one to release hy force etc. [book ii 

oifenders than one, each may be sued separately, moreover the 
party released remains still as much liable as before. 4. Heirs 
have a right to bring this action only where they have an interest 
in doing so ; but no action is allowed against an heir, nor after the 
lapse of a year. 

The same {o7i the Edict 35) Where a man who has 

released a defendant debtor by force pays the damages, this does 
not extinguish the debtor's liability, as the party simply pays 
damages for his own act. 



VIII. 

What persons respectively are compelled to give a 
guarantee or promise on oath or are remitted to 
a simple promise. 

Gaius {on the provincial Edict 5) The term satisdatio 
(giving a guarantee or security) arose in the same way as satisfactio. 
Just as people are said to give satisfaction to one with whose wish 
they comply, so they are said to make "satisdation" to the opposite 
party when they give him such security^ in respect of the subject- 
matter of his suit that by furnishing sureties they relieve him from 
all risk involved in it. 

Ulpianus {on the Edict 5) A surety who is given for the 
appearance of a defendant is regarded as substantial not merely 
by reference to his means, but by reference also to the facilities 
there may be for suing him. 1. If a man should give a surety for 
his appearance to a suit brought by any one of the class of persons 
legally incapable of bringing it, this giving of a surety is of no 
force. 2. The preetor says, ~" If any one cites his parent, 
his patron or patroness, the children or parents of his patron or 
patroness, or his own children, or some one whom he has under 
his potestas, or his wife, or his daughter-in-law, any kind of surety 
for the appearance of the defendant is to be accepted." 3. Where 
the praetor says "or his own children," we must understand this 
to include grandchildren descended through women : and we 
must allow the privilege in question in the case of parents not only 
where they are sui juris, but equally where they are under any 
man's potestas : this is in fact said by Pomponius. Moreover a son 
can become a surety for his father, even where he is under some one 
^ Read cum.xavetur for qui...cavit. M. 



TIT. viii] What persons compelled to give a guarantee 83 

else's potestas. Daughter-in-law we must take to include grand- 
daughter-in-law, and so on in remoter generations. 4. Where the 
praetor says " any kind of surety is to be accepted," this refers to 
the surety's means, it signifies, in short, even if the surety is not 
substantial. 5. Where the praetor allows an action against a surety 
who promised that some one should appear, it is given for such 
amount as the matter is worth ; but as for whether that means the 
actual loss in fact incurred, or a definite amount [an vero quanti- 
tatem] settled beforehand, this is a point to consider. The better 
opinion is that the surety is liable for the actual amount [in veram 
qiiantitatem], unless he became surety for a specific sum^ 

Gaius (on the provincial Edict 1) Whether the action was 
for double or treble or fourfold damages, it is held that one and the 
same surety is liable for whatever the amount was, without further 
discrimination, as that is the amount which the matter is taken to 
be worth. 

Paulus (on the Edict 4) If a defendant who has furnished 
a surety for his appearance should die, the praetor ought not to 
order him to be produced". Should the praetor order him to be 
produced, in ignorance of his death, or should the defendant die 
after the order is made, but before the day on which he was to be 
produced, no action can be allowed. Should the party on the other 
hand die or lose his citizenship after the day on which he was to 
be produced, an action may be brought with good effect. 

Gaius {on the provincicd Edict 1) But if a man is surety 
for one against whom judgment has already been given, and the 
latter, being in that position, dies, or loses Roman citizenship, this 
will not prevent an action being properly brought against the 
surety. 1. Where a plaintiff" declines to accept some surety offered 
for the appearance of the other party, though he is beyond all 
doubt a substantial person, having regard to the condition of the 
defendant, or, if there was any doubt, is shown to be such, an 
action for injuria can be brought against him, as it is certainly no 
every day injuria that a man Avho offers a thoroughly sufficient 
surety should be brought up summarily in person. Indeed the 
surety himself whom the party declined to accept may take pro- 
ceedings as for an injuria done to himself 

Paulus (on the Edict 12) If in any case there is some flaw 
in the undertaking or the guarantee given, it is held that there is 
no undertaking at all. 

^ The passage must be corrupt. ^ Read exhiberi for exhibere. Of. M. 

6—2 



84 What persons compelled to give a guarmitee [book n 

7 Ulpianus (on the Edict 14} If, without the sufficiency of 
the surety being denied, it should be alleged that he has a right 
to object to the jurisdiction, and the plaintiff should be apprehensive 
that he will raise a plea founded on the alleged right, — let us see 
how the law stands. As to this point, — so we are informed by 
Pomponius in his book of Epistles, by Marcellus (Dig. 3) and by 
Papinianus (Questions 3) — the Divine Pius laid down, in a rescript 
addressed to Cornelius Proculus, that a plaintiff was quite justified 
in refusing to accept such a surety, but that, if no other surety can 
be procured, the one who is offered must make a declaration that, 
if he is sued, he will not avail himself of his privilege. 1. Where 
the finding of a surety is obligatory, but the defendant has a 
difficulty in finding one on the spot where he is sued ; then, if he 
offer to find one in some other city of the same province, his 
proposal may be entertained. But where the defendant offers 
a surety without being obliged to do so, he is not allowed to change 
the place ; a man has no claim to consideration of this kind where 
he of his own choice put himself under the necessity of finding 
a surety. 2. If guarantee for appearance has not yet been 
furnished, where the trial relates to some moveable, and the person 
who is required to find a surety is not thought trustworthy, the 
property should be deposited at the Office [Officium], if that is 
agreeable to the judge, until either a surety is found or else the 
case is concluded. 

8 Paulus {on the Edict 14) Commonly the parties to the action 
agree as to the mention of a day in the stipulation. In default of 
such agreement, Pedius holds that the promisee may choose the 
day, subject to some limitation as to the time ; this point is to be 
decided by the judge. 1. A man who offers a woman as a person 
to guarantee his appearance, is not held to find a surety at all ; 
indeed, soldiers and persons under twenty-five are not to be 
approved of, except where such persons are sureties in their own 
behalf, as, for example, where they are sureties for their own 
agents. Some indeed hold that where an action is brought to 
recover dotal land by a husband, the wife may be surety in her 
own belialf. 2. If a person who before issue was joined was surety 
that the judgment would be complied with [judicatum solvi^ is 
found to be a slave, the plaintiff has a claim to relief, and a fresh 
undertaking must be made. Relief must also be given to one 
under twenty-five, and perhaps to a woman, on the ground of 
inexperience. 3. If one who is surety that the judgment will be 



TIT. viii] What persons compelled to give a guarantee 85 

complied with becomes heir to the person to whom the assurance 
was given, or vwe versd, fresh assurance will have to be given. 
4. A guardian or curator, when he has to undertake that property 
shall be preserved for the ward, may have an order that he shall 
come to the municipal town, because the guarantee is compulsory ; 
the same rule holds as to a guarantee for a man giving up to the 
bare proprietor property in which a usufruct has been created ; 
and a legatee is in the same position with reference to his giving 
security that, if the inheritance should be recovered by action 
[from the j)resent assumed heir], he will give up any legacy paid 
him, including anything which, having regard to the lex Falcidia, 
was paid in excess ; moreover, an heir has a right to be heard on 
an application to be sent to the municipal town for the purpose of 
giving security for payment of legacies. It is true that if a legatee 
has once been put in possession of the property bequeathed him 
in a case where it was the heir's own fault that he omitted to find 
a surety, and the heir thereupon requests that the legatee may 
give up possession, and declares that he is ready to find a surety in 
the municipal town, he will not be entitled to permission to do so. 
But it is a diflferent case where the legatee is put in possession 
through no negligence or wilful misconduct of the heir. 5. A man 
[who desires to give security in the municipium] is ordered to 
deny on oath any vexatious intention, for fear lest he should really 
be seeking to annoy his opponent, and should have had that main 
object in calling upon him to come to the municipium, when 
perhaps he is able to find a surety in Rome ; still some persons 
are excused the oath referred to in disavowal of vexatious intention ; 
for instance, parents and patrons. A man who gets the order 
authorizing him to go to a municipium is bound to swear as 
follows : — that he is unable to find a surety in Rome, but that he 
can find one at the place to which he requests to be sent, and that 
he does not make the application with any vexatious intent. But 
he is not compellable to swear as follows : — that he cannot find 
a surety in any other place than the one named :— because if, 
though unable to give security in Rome, he is able to give it in any 
one of several other places, this would amount to compelling him 
to commit perjury. 6. The leave in question will only be obtained 
where there is shown to be lawful cause. Suppose, for instance, 
the defendant was in the municipium on a previous occasion, and 
then refused to find any surety; in such a case the permission 
ought not to be given him, as it was his own fault that he did not 
find a surety at the place to which he now desires to go. 



86 What persons compelled to give a guarantee [book ii 

9 Gaius {on the provincial Edict 5) Where an arbitrator is 
appointed to try the sufficiency of proi)Osed sureties, if his decision 
appears unjust, relatively to either party, there is an appeal allowed 
from him, just as there is from a regular judge. 

10 Paulus {on the Edict 75)^ If sureties are approved of by 
the arbitrator, they are to be deemed substantial persons ; seeing 
that a complaint may be made before the proper judge ; who can, 
on sufficient cause shown, reject sureties approved by the arbitrator, 
or, it may be, approve those rejected. 1. Much more may we say 
that, where a man of his own freewill accepted sureties that were 
offered him, he is bound to be content with them. If, however, in 
the meantime some notable calamity should overtake the sureties, 
or, say, severe loss of means, then, on sufficient cause shown, 
sureties must be found over again. 

11 Ulpian {on the Edict 75) Julianus has the following: 
having no mandate as yet from me to bring an action to recover 
land, you still intend to bring the action, and you accordingly take 
the requisite guarantee, after which I give you the mandate and 
you institute proceedings in pursuance of it ; in this case the 
sureties are bound. 

12 The same {on the Edict 77) All writers are agreed that 
where a man is appointed heir on condition, then, if he is in 
possession of the inheritance while the condition is pending, he 
must give an undertaking to the substitutional heir to hand over 
the inheritance, after which, if the condition fails, the substitute, 
assuming that he chooses to enter as heir, can bring the hereditatis 
petitio, and, if he succeeds therein, the undertaking can be sued 
on. Very often indeed the praetor himself, before the condition 
comes to pass, and before the time has arrived for the hereditatis 
petitio, will, on due cause shown, order the stipulation to be made. 

13 Paulus (on the Edict 75) And if there are several substi- 
tutes, an undertaking must be given to each separately. 

14 The same (Responsa 2) A son under potestas undertakes 
the defence of his father, who is absent : I wish to know whether 
he is bound to give security by sureties that the judgment will be 
obeyed. Paulus replied that any one who undertakes to defend an 
action on behalf of an absent person, even if he is a son or a father, 
is bound, according to the terms of the Edict, to give such security 
to the person who is bringing it. 

* On division of sections at this point cf. M. 



TIT. vm] What persons compelled to give a guarantee 8T 

Macer {on apjwals 1) It must be borne in mind that 
defendants in possession of immoveable property are not com- 
pellable to find sureties. 1. By possessor is to be understood 
a person who possesses land in the country or a town, whether 
solely or in respect of a share. We may add that a man 
is considered possessor just as much when he has an ager 
vectigalis, that is, an emphyteutic estate. Furthermore, a man 
must be regarded as possessor when he has the bare owner- 
ship. But where he has only the usufruct, we have Ulpian's 
authority that he is not possessor. 2. A creditor who has taken 
a thing in pledge is not ' possessor,' although he should have got 
possession, whether the thing has been delivered to him or he has 
allowed it to be held on precarimn by the debtor. 3. If land is 
given by way of dos, both Imsband and wife are, in regard of their 
actual possession of such land, considered possessors. 4. A man 
who has a right of action in personam for the delivery of land 
is in a different legal position. 5. Guardians are treated like 
possessors, whether their wards are in possession or they are so 
themselves ; indeed, the construction is the same even where only 
one of the guardians is in possession. 6. If you bring an action 
against me to recover land which I possess, and judgment being 
given in your favour, I thereupon appeal, am I still possessor of 
the land? The proper view to hold is that I am possessor, as 
I have still got possession ; and it makes no diflFerence that my 
possession can be taken away from me by course of law. 7- When 
the question arises whether a man is possessor, the time to be 
considered [for the present purpose] is that at which the under- 
taking is given ; for just as a man who sells the possession after 
giving the undertaking is in no worse position, so one who takes 
possession after giving it is in no better position. 

Paulus {on the Edict 6) Where a man promises on oath 
to appear at the trial, he is not held to commit perjury if he fails 
to appear on some recognized ground. 



88 Nature of the undertaking given [book n 



IX. 

Nature of the undertaking given in the case of 
a noxal action. 

Ulpianus {on the Edict 7) If a man has promised that 
some slave who is the subject of a noxal action shall be produced 
at the trial, he must, so the praetor says, be ready to produce* 
him in the same legal plight [causa] in which he is at the time 
while joinder of issue is still pending. 1. What is meant by the 
expression " the same legal plight " is a point to consider ; but 
the true view, I should say, is that a man must be held to present 
the slave in the same plight Avhere he does not put the plaintiff 
in a worse legal position with reference to the action wliich he 
brings. Should the slave in the meantime cease to be the pro- 
misor's property, or the ])laintiff's right of action be lost, then, 
according to Labeo, the slave cannot be held to be presented in 
the same legal plight ; the same may be said where a plaintiff who 
was in as good a position (as the defendant) for purposes of litiga- 
tion comes to be in a worse position by some change of place or 
of party. Thus where the slave is sold to some one who cannot 
be sued in the same court as the promisor could, or is transferred 
to a man who is a more formidable antagonist, the same authority 
considers on the whole that he cannot be said to be produced in 
court in the same legal plight. Again, if the slave should in the 
meantime be surrendered for noxa, Ofilius holds that he cannot 
be produced in the same plight, as, in his opinion, surrender 
for noxa does away with all noxal actions on the part of other 
persons. 

Paulus (on the Edict 6) However, the present practice is 
different ; when a slave is surrendered for noxa he is not dis- 
charged from all antecedent legal predicaments ; in fact noxa. still 
follows the guilty subject just as much as if he had been sold. 
1. If some one is in a position to bring a noxal action in respect 
of a slave, and the slave is absent, then, according to Vindius, if 
the owner does not deny that the slave is under his control, he 
can be compelled either to promise that he shall be produced in 
court, or to join issue, or else, if he does not choose to undertake 
the defence, he must give an undertaking that he will produce the 
slave as soon as he is able : but, if he denies falsely that he is 
^ debere inserend. after exhibere. M. 



TIT. ix] in the case of a noxal action 89 

under his control, he must take up the case without the alternative 
of surrender for noxa. Julianus says the same, even where the 
owner contrives fraudulently that the slave shall not be under his 
control. But, if the slave is present and the owner is absent, and 
nobody defends the slave, the praetor will order that the plaintiff 
may carry the slave off; at the same time the owner will be 
allowed, on cause shown, to defend the case afterwards, so 
Pomponius and Vindius say, so as to prevent him from losing 
by his absence ; consequently the plaintiff himself can get an 
order giving him back his right of action, which he was deprived 
of by the fact that when the slave was taken off he became his 
(the plaintiff's) property. 

Ulpianus {on the Edict 7) If a noxal action is brought 
against one who has a usufruct in a slave and he declines to 
defend him, the prsetor will not allow an action at law on his part 
to recover the usufnict. 

Gaius {on the provincial Edict 6) If a noxal action is 
brought against one of two co-owners, is the defendant bound 
to find a surety in respect of the share of his fellow owner? 
Sabinus says he is not, because, being obliged to take up the 
defence for the whole claim, he is in a way defending the entire 
man as if he were his own property, and he will not be listened to 
if he offers to defend in respect of a share only. 

Ulpianus {on Sabinus 47) A man promises to produce 
a slave in court in the same plight, but the slave gets his liberty 
and then appears ; here, if the question to be tried concerns this 
particular man in connexion with capital proceedings or on the 
ground of injuria which he is charged with committing, this is 
not a good appearance ; as f one kind of penalty is applied with 
a freeman by imposition of, it may be, pecuniary damages, and 
another is used with a slave by inflicting severe punishment, and, 
in the case of injuria, the slave is beaten by way of satisfaction f\ 
But, so far as other grounds of noxal proceedings are concerned, 
the former slave may in fact be held to have got into a better 
plight [for the plaintiff]. 

Paulus {on Sabinus 11) However, if a promise was given 
that a statu liber should appear, he is held to appear in the 
same plight though he should be a free man when he appears, 
as the chance of liberty was an element in his legal position 
originally. 

^ Transpose servo... satisfit and libero...pecuniaria. 



90 On one who contrives [book ii 



X. 

On one who contrives that a defendant shall not 

APPEAR. 

Ulpianus {on the Edict 7) The praetor held it to be 

thoroughly just to put a check on the ill practice {dolus) of such 
as take measures to prevent a man from appearing to a trial. 
1. A man is held to have acted with malice [dolus malus\ not 
only where he kept the defendant back with his own hands or by 
the instrumentality of persons in his service, but also where he 
engaged others to keep him back or get him out of the way so 
that he should not appear, whether such persons were aware 
or not of his design. 2. According to the meaning put on the 
expression ' dolus malus,' if any one should address words of evil 
omen to some one who is on his way to the court which should 
oblige him to give up going to the trial, the party would be liable 
under this Edict : though indeed some hold that the other would 
have himself to blame for being so easily imposed on. 3. If the 
defendant fails to appear, owing to the contrivance {dolus) of the 
plaintiff, such defendant will not have any right of action against 
the plaintiff in virtue of this Edict, as he may well be content with 
an exceptio, supposing he should, in consequence of not appearing 
at the trial, be sued for the penalty on his formal undertaking to 
appear. The case is different if he should be hindered by some 
third person ; then he would have a right to bring the action in 
question. 4. If several are guilty of contrivance, all are liable ; 
but if one of them pays the penalty, the rest are discharged, as 
the plaintiff has no further interest. 5. All are agreed that in 
such a case a noxal action must be brought in respect of a slave. 
6. The action is allowed equally to the heir of the party wronged, 
though only for a year : but against the heir of the wrongdoer 
I should say an action will only be so far allowed as to prevent 
such heir from making any gain through the contrivance of the 
deceased. 

Paulus {o7i the Edict 6) If a slave of tlie plaintiff, with 
the knowledge of his owner, and without such owner attempting 
to prevent him, though able to do so, should use contrivance so as 
to prevent me from appearing to the action, then, according to 
Ofilius, I shall have a right of exceptio to an action by the owner, 
lest the latter should profit by the ill contrivance of his slave. 



TIT. x] that a defendant shall not appear 91 

But if the slave should do this without the consent of the owner, 
Sabinus holds that I ought to be allowed a noxal action ; the act 
of the slave, he says, ought not to prejudice' the owner except so 
far as to cause him to lose the slave, seeing that he did no wrong 
himself. 

JULIANUS {Digest 2) In pursuance of this Edict, where 
a man has maliciously contrived that some one who was cited 
should not appear to the action, there is a good right of 
action in factum against him for an amount equivalent to 
the interest the plaintiff had in the defendant appearing. In 
this action the inquiry will embrace the question what loss the 
plaintiff suffered in consequence of the non-appearance ; for in- 
stance, where the defendant in the meantime acquired ownership 
in the subject-matter of the suit by effluxion of time or was 
discharged from liability to an action, 1, No doubt, if the party 
who contrived that the defendant should not appear is insolvent, 
it is only just that a fresh action should be allowed against the 
original defendant himself, lest he should make gain and the 
plaintiff suffer loss by another man's ill practice. 2. If the 
promisee and the promisor in the stipulation are both prevented 
from appearing in the action, one by the contrivance of Titius 
and the other by that of Msevius, each may bring an action 
in factum against the person by whose contrivance he was hin- 
dered. 3. If the promisee is prevented from appearing by the 
contrivance of the promisor and the promisor by that of the 
promisee, the pr?etor ought not to give any relief to either of 
them ; the two cases of dolus may be set off one against the other. 
4. If I stipulate with the surety for fifty in case the defendant 
fails to appear to the action, where the amount that I am suing 
for is a hundred, and the defendant is prevented from appearing 
by the ill contrivance of Sempionius, I can get a hundred from 
Sempronius. This is in fact what my interest is held to amount 
to, because, if the defendant had appeared at the trial, I could 
have proceeded on a valid right of action which I had against him, 
— or, say, his heir, — for a hundred, although the amount which the 
surety engaged to pay were not so much. 



92 Where a man fails [book n 



XI. 

Where a man fails to observe an undertaking to 
appear to an action. 

Gaius {on the provincial Edict 1) [With regard to the 
time within which appearance is to be made] the prjetor lays down 
that one day should be given for every twenty thousand paces of 
distance, in addition to the day on which the undertaking is made, 
and the day on which the party is to appear. Certainly where the 
time is calculated with reference to the distance on the above scale, 
there is no hardship inflicted on either of the litigating parties. 

Ulpianus {on the provincial Edict 74) The law does not 
require that a defendant should appear to the action where the 
matter in connexion with which he promised to appear is com- 
promised ; but this is only so where the compromise is made before 
the day on which the party was bound to appear; at the same 
time, if it is made afterwards, an action on the promise ought to be 
met by an exceptio of dolus : indeed, who would ever take any 
trouble about the promise of a penalty when the matter has been 
compromised ? The fact is any one would suppose that the mere 
exceptio of 'compromise made' would be a good plea, on the 
ground that the compromise included the liability to penalty itself, 
unless the parties expressly agreed otherwise. 1. If a man fails 
to appear to an action in accordance with his promise, without any 
ill contrivance of his own, owing to some hindrance connected with 
the discharge of a municipal office, it is quite right that he should 
be allowed an exceptio. 2. On the same principle he ought also 
to be relieved if he was not able to present himself at the trial 
because he was required elsewhere as a witness. 3. Where a man 
promises to appear to an action, and is unable to do so because he 
is prevented by ill-health or a storm or the strength of the current 
in a river, he has a good exceptio ; which is very reasonable, as 
such a promise requires personal attendance, and how was it 
possible for a man to appear who was hindered by bad-health (etc.)? 
For this reason even the Twelve Tables lay down that if the judge 
or either of the litigating parties should be hindered by a serious 
illness, the day of the trial is to be put off. 4. If a woman fail to 
appear, not on the ground of ill-health, but because she is expecting 
her confinement, according to Labeo, she ought to be allowed an 
exceptio : but if she keeps her bed after the birth of the child, it 



TIT. xi] to observe an undertaking 93 

ought to be shown that she is prevented by what amounts to ill- 
health. 5. A similar rule holds where a defendant becomes 
insane ; a man who is hindered by insanity is hindered by ill-health. 

6. With regard to the above statement that a man is relieved even 
where his failure to appear is owing to a tempest or the force of 
a current, we must understand the word tempest to apply equally 
whether it is by land or sea ; it is, in short, such a tempest as 
prevents either a land journey or navigation, as the case may be. 

7. The force of a current does not imply a tempest ; but the expres- 
sion applies as well where the breadth of a river constitutes the 
impediment, whether the bridge is broken down or the ferry-boat 
is not to be found. 8. Suppose, however, a man had had it in his 
power to avoid encountering a tempest or a strong stream by 
starting earlier or making the voyage at a suitable time, but he 
created his own difficulty, are we to say that he will get nothing 
by an excejJtio ? This point is one to be decided on cause shown. 
The rule cannot be^ laid down so strictly on the one hand that he 
can be asked why he did^ not set out a long time before the day 
which was mentioned in the promise ; nor on the other hand can 
he be allowed to excuse himself on the ground of tempest or the 
force of a stream if his delay was at all his own fault. Suppose, 
for instance, a man who was at Rome at the very time when he 
made the promise to appear at the trial should, without any urgent 
need, have gone off to a provincial town to amuse himself : how 
will he be the better for such matter of exceptio ? or how if there 
was a storm at sea, but the party was able to come by land ; or, in 
the case of the stream, to make a circuit so as to avoid it? Here 
again we must say that the exceptio will not be open to him as 
a matter of course ; unless indeed the want'' of time was such that 
he could not accomplish the journey by land or avoid the stream in 
the respective cases. Of course, if the stream overflowed to such 
an extent as to flood the whole place where he had to appear, or 
some unforeseen disaster wrecked the place, or made it dangerous 
to approach it, then too the exceptio must be allowed him on 
principles of fairness and justice. 9. In the same way an exceptio 
is allowed to a defendant who desired to come to the trial, but was 
detained by a magistrate, such detention being without any ill 
contrivance (dolus) of his own ; if he took steps to this very end, 
or gave occasion for it, the exceptio will not serve his turn, but his 

^ For sit read est. 
- For est read sit. 
* After nisi read temporis. M. 



94 Where a man fails [book ii 

own dolus will prejudice him, though he will not be prejudiced by 
dolus on the part of any one else, by whose contrivance he was 
kept back. Still, if he is kept back by a private person he will get 
nothing at all by an exceptio founded on the circumstance ; 

3 Paulus (on the Edict 69) but he is allowed an action 
against the person who kept him back for an amount corresponding 
to the loss it occasions him {id quod interest). 

4 Ulpianus {on the Edict 74) Again, if a man was not able 
to appear at a trial because he had already been condemned on 
a capital charge, in that case he is excused, and with reason. By 
condemnation on a capital charge we must understand a case 
where a man is punished by death or exile. It will perhaps be 
said — what is the use of this exceptio to a man who is condemned ? 
But the answer is that it is required by his sureties ; it is also of 
use in case he has gone into exile without losing his citizenship, as 
then the exceptio will be available for any one who takes up his 
defence. 1. One point must be remembered, that a man who 
failed to appear because he was arraigned on a capital charge is in 
that legal predicament that he cannot avail himself of the exceptio ; 
the case in which it is allowed is where he is condemned. It is 
true that if the reason why he failed to appear was that he was pre- 
vented by imprisonment or military arrest, in that case his position 
is one in which he can have the exceptio. 2. We may add that if a 
man fails to come because he is hindered by a funeral in his family, 
he ought to be allowed the exceptio. 3. Again, if a man is in 
bondage in the hands of enemies, and for that reason fails to appear, 
he must have the benefit of the exceptio. 4. The question has been 
raised whether an agreement can be made to the effect that no 
exceptio shall be pleaded at all, where a man breaks an engagement 
which was intended to secure that he would appear to an action ; 
but Atilicinus holds tiiat such an agreement is void. For my own 
part, I should say that the agreement is valid, provided express 
mention is made of the particular grounds of exceptio, and the 
promisor undertook voluntarily not to rely on them. 5. Again, 
this question is asked : suppose a man who was not bound to find 
sureties for appearing to an action nevertheless promises with 
sureties, will his sureties be allowed an exceptio ? I should say 
that the essential question is whether such a promise with sureties 
was given owing to a mistake, or in pursuance of an agreement ; if 
it was owing to a mistake, the sureties ought to be allowed the 
exceptio ; if in pursuance of an agreement, they certainly ought not. 



TIT. xi] to observe an undertahlng 95 

Julianus himself says : — "if a man by way of assurance that he will 
appear to an action promises through ignorance a larger sum than 
is laid down, an exceptio ought to be allowed " ; but if a promise 
is made of the same sum in pursuance of an agreement, then, 
says Julianus, the exceptio will be neutralized by a replicatio of 
" terms agreed upon." 

Paulus {on the Edict 69) There are two co-promisees, and 
the debtor promises one of them under a penalty that he will appear 
to an action, but the other hinders him from doing so. In this 
case no exceptio will be allowed in bar of an action by the first, 
unless the two are partners; but it will then, for fear lest the 
result of the fact of partnership should be that the one [who does 
the wrong] profits by his own ill-practice. 1. Again, if there are 
two co-promisors, and one, on being sued, declines to appear at the 
trial, in disregard of the promise he made to secure his appearance, 
whereupon the plaintifi' demands fi*om one the thing which is the 
subject of the litigation, and the penalty for non-appearance from 
the other ; the action for the penalty will be barred by an exceptio. 
2. On the same principle if a promise is made by a father to the 
eflfect that he will appear at the trial, where an action is brought 
on his son's contract, and, after that, the plaintiff" sues the son on 
the contract, he will be met with an exceptio if he then sues the 
father on his promise : and there is a corresponding rule in the 
converse case if the son promises to appear and the plaintiff" then 
sues the father in an action de peculio. 

Gaius {on the Twelve Tables 1) Where a man finds a surety 
and then fails to appear, for the reason that he is absent on public 
service, it is not just that the surety should be bound on another 
man's behalf, so as to have to appear to a suit where the other 
himself is free not to appear. 

Paulus {on the Edict 69) If a man promises that a slave, 
or any one who is in the potestas of another, shall be produced to 
meet an action, he has every exceptio that he would have had, if 
he had been surety for some one who was free or sui juris, except 
an excej^tio alleging that the slave was absent on the public service, 
as a slave cannot be absent on public service. Setting aside this 
exception, all the others, being of general application, are available 
both in the case of a free man and in that of a slave ; 

Gaius {on the provincial Edict 29) and if, in three or five 
or more days after the defendant was to have appeared, according 
to his promise, he gives the plaintiff" an opportunity of proceeding 



96 Where a man fails [book ii 

agaiust him, and the latter's legal position is none the worse for 
the defendant's default, it follows that he must be held to have 
a good defence by way of exceptio. 

9 Ulpianus {on the Edict 77) If a slave promises to appear 
to an action, the stipulation cannot be sued on either against the 
slave or his sureties. 1. If an engagement is made by one 
stipulation in respect of several slaves to the effect that they shall 
all be produced to meet an action, the whole penalty is incurred^ 
according to Labeo, though only one should fail to appear, because 
it is a fact that they were not all produced ; still, should a pro- 
portionate penalty be offered for the one slave, Labeo holds that if 
an action is brought on the stipulation, the defendant will have an 
exceptio doli. 

10 Paulus [on Plautius 1) If I promised that a particular 
man should appear to an action who is alleged to be already dis- 
charged from liability by lapse of time\ an action must be allowed 
against me to call upon me either to produce this man or else to 
defend the action on his behalf, in order that an inquiry may be 
made into the facts. 1. A slave for whose production a promise 
had been made died before the day by the ill-contrivance of the 
promisor: it is in accordance with ascertained practice that the 
penalty cannot be demanded before the day arrives ; as the whole 
stipulation is held to be referred to that day. 2. A man who 
desired to bring an action for injuria, stipulated that the other 
party should appear to the action, but, fulfilment of the promise 
having become due, the promisee died before joinder of issued It 
was held that his heir had no right to an action on the stipulation, 
because stipulations of that kind were only had as subsidiary to 
the main action, and an action for injuria is not open to the heir 
of the party wronged. In short, although the benefit of a stipulation 
such as named, which is made for securing the appearance of some 
one to an action, does pass to the heir, still in this case the action 
ought not to be allowed ; the deceased himself, if he had chosen 
to drop the action for injuria, and yet to sue on the stipulation, 
would not have been allowed to do so. A similar rule, it was held, 
would apply if I proposed to bring an action for injuria and the 
defendant died after the time had arrived for suing on the stipula- 
tion, as I have no right of action on stipulation against his heir ; and 

^ quia...tenehatur delend. M. 

2 Put ante I. c. after commissa stipulatione. M. 



TIT. xi] to observe an undertaking 97 

with this Julianus agrees. Accordingly it is equally true that, if 
sureties were given, no action will be allowed against them after 
the death of the principal. Pomponius says the same, provided 
the death does nc«t take place a long time after, because, if the 
deceased had appeared, the plaintiflf might have carried the suit 
as far as joinder of issue. 

Ulpianus {on Sahinus 47) If a man promises that anyone 
shall appear to an action, he ought to procure that he appears in 
the same legal position {cmisa). To procure him to appear in the 
same position is to make him so appear that the plaintiff is not in 
a worse situation for carrying on proceedings, although he may 
find it more difficult to get the redress which he demands. For 
even if there should be greater difficulty in this last point, still the 
rule is that the promisor is held [in such a case] to have procured 
the party to appear in the same position ; even if he should have 
contracted a fresh debt or have lost his money, he is still held to 
appear in the same position, from which it follows that, even where 
a man appears after he has become a judgment debtor to someone 
else, he is held to appear in the same legal position. 

Paulus {on Sahinus 11) But where a man is enjoying some 
fresh special immunity {novum privilegium), he cannot be held to 
appear in the same position. 1. One thing must be borne in 
mind, that any estimate of the amount of the plaintiff's interest 
must be made with reference to the day on which the defendant 
was bound to appear, not to the day when the proceedings com- 
mence, although by tliat day the plaintiff should have ceased ta 
have any interest. 

Julianus {Digest 55) If at any time a slave should, as if 
he were proceeding to litigate on his own account, either stipulate 
with another for appearance at the trial or make a promise to appear 
himself, the stipulation confers no right of action, nor are the 
sureties bound, as a slave cannot be either defendant or plaintiff 
in an action. 

Neratius {Parchments 2) If a man stipulates as procurator 
for another that the promisor shall simply procure the appearance 
of whoever it is that is the subject of the engagement, but does not 
go on to stipulate for a penalty in case that person should not 
appear, such a stipulation can hardly be said to be of any value at 
all, because the procurator, so far as he is himself personally 
concerned, has no interest in the party's appearing. As however 
he is acting on someone else's behalf in making the stipulation, it 
M. J. 7 



98 Where a man fails to observe an undertaking [book n 

may very well be argued that the person whose interest ought to 
be considered in the matter is not the procurator but the principal 
on whose behalf he acts, so that, if the defendant fails to appear, 
there should be payable to the procurator, in pursuance of the 
stipulation, an amount equivalent to the interest which the prin- 
cipal in the case had in the party appearing. The same rule would 
apply, indeed it would apply still more strongly, if the procurator 
should have stipulated in such words as these "whatever is adequate 
compensation (quanti ea res erit),'' so long as we understand this 
form of words to relate not to the procurator's own concern in the 
matter, but to that of the principal. 

Papinianus (Questions 2) If a guardian promises to appear 
to an action and does not observe his promise, and in the meantime 
the ward becomes of full age, or dies, or even is made to renounce 
an inheritance [on which the action was founded], no action will 
be allowed on the stipulation. Indeed, if an action had been 
brought on the main question, and judgment therein given against 
the guardian, and then any one of the above events were to happen, 
it is established law that no action on the judgment would be 
allowable against the guardian. 



XII. 
On feast-days, adjournments, and different seasons, 

Ulpianus (on all the Courts 4) It is set forth in an address 
of the Divine Marcus that no one is to compel his opponent to 
attend to stand a trial at the season of harvest or vintage, as men 
who are engaged in agricultural matters ought not to be compelled 
to come to the forum. 1. If however the prsetor, through 
ignorance or stupidity, should persist in summoning such persons, 
and they choose to come, then, if he delivers judgment in the case, 
they being there present and voluntary parties to the action, the 
judgment will be good in law, although the magistrate who ordered 
them to attend were wrong in doing so; should they however 
throughout keep away, and the praetor pronounce judgment in 
spite of their absence, it follows from the above that we must hold 
the judgment to be of no validity, as the law cannot be set aside 
by the act of the praetor; accordingly the decision will, without 
any appeal, be held of no account. 2. Certain circumstances 
however there are in which there is an exception to the rule, in 



TIT. xii] On feast-days, adjournments, etc. 99 

the case of which persons may be compelled to come before the 
praetor, even at a time when harvest and vintage are going on ; for 
instance, where the subject-matter of the suit would be lost by 
lapse of time, that is to say where lapse of time would take away 
the right of action. No doubt whenever the matter is pressing, 
persons are compellable to come before the praetor, but they can 
only be compelled to attend so far as to join issue, and this is set 
forth in the very words of the address: indeed, if either party 
should after joinder of issue decline to proceed with the action, the 
address allows him to have the case adjourned. 

2 The same [07i the Edict 5) The Divine Marcus enacted, 
reciting the above address in the senate, that the praetor might be 
applied to in some further cases, even on holidays : for instance, 
for the appointment of guardians or curators ; to admonish persons 
who neglected their duties ; to hear excuses ; to order alimentary 
provisions; to ascertain persons' ages; for orders that possession 
might be taken on behalf of unborn children (ventris nomine), or 
for the sake of preserving property, or by way of security for the 
payment of legacies or Jidei-commissa, or in cases of damnum 
in/ectum ; also for orders for discovery of testaments ; for the 
appointment of curators of the property of persons as to whom it 
is uncertain whether there will be an heir to succeed them or not ; 
for orders for the maintenance of children, parents, or patrons, or 
for making entry on inheritances suspected to be insolvent, or for 
ascertaining by ocular proof the extent of an aggravated injuria, 
or ^ executing fide-commissary manumissions. 

The same {on the Edict 2) Again, where property is likely 
to be lost by lapse of time or by death, the practice is for justice to 
be administered even in the season of harvest and vintage. The 
loss to be feared may be by death, as where the action is for theft; 
mischief {damnum, injuria), or aggravated injuria; or in cases 
where any one is alleged to have committed robbery at a fire, or 
the fall of a house, or a shipwreck, or after violent capture of 
a boat or a ship; and similar cases. The same holds where the 
object of the proceedings would be lost by lapse of time, or the 
period within which an action may be brought has nearly expired. 
1. Moreover inquiries as to whether a man is free or a slave can be 
heard to the end at all times of the year. 2. Similarly justice will 
be administered at all times in a case against a man who accepts 

1 After vel ius. de, and for lihertas read libertate. Of. M. 

7-2 



100 On feast-days, adjournments, [book ii 

anything as the price of market-day feasts (nundinaruin nomine) 
contrary to public policy. 

Paulus (on the Edict 1) The prceses of a province usually 
lays down what are to be the days' of harvest and vintage in 
accordance with the custom of the particular locality. 

Ulpianus (on the Edict 62) On the last day of December 
the magistrates are not accustomed to administer justice, or even 
to hear any applications at all. 

The same (on the Edict 77) With regard to judgment 
being given on a holiday, it is laid down by statute that there is to 
be no trial had on such a day except by consent of the parties, and 
that if any judgment is given in contravention of this rule, no one 
is bound to do any act or make any payment in pursuance of such 
judgment, and no officer in whose court any application is made in 
the matter is to compel obedience to the judgment. 

The same (on the office ofconsid 1) It is no doubt set down 
in the address of the Divine Marcus that an order giving further 
time for the production of documents is not to be had more than 
once ; at the same time, for the convenience of litigating parties, on 
cause shown, a second order for further time is commonly granted, 
whether the documents are in the same or a different province, 
subject to regulations depending on situation ; and this is especially 
done in the case of some unforeseen occurrence. The following 
point is a fair matter for consideration ; whether, where a deceased 
person got an order for further time for production of documents, 
similar leave should be given to his successor also, or are we to 
say that, leave having been once given, no further extension ought 
to be allowed? But the better opinion is that on cause shown 
leave should be given to the successor as well. 

Paulus (on Sabinus 13) According to the Roman custom the 
day begins at midnight and ends at the middle of the next night. 
Consequently, whatever was done during those four-and-twenty 
hours, that is two half nights and an intervening period of daylight, 
is treated exactly as if it had been done at any hour of daylight. 

Ulpianus (on the office of proconsid 7) The Divine Trajan 
laid down in a rescript to Minicius Natalis that holidays occasion 
cessation of judicial business only, but matters pertaining to military 
discipline must be carried on even on holidays ; and this last will 
include inspection of prisoners. 

^ Before tempus del. causa. M. 



TIT. xn] and different seasons 101 

10 Paulus (Sentences 5) In all pecuniary causes only one 
adjournment can be allowed in each separate case; in capital 
cases three adjournments may be given to the accused and two to 
the accuser ; but, on both sides, only on cause shown. 



XIII. 

On statement of particulars and discovery of 
documents, etc. 

Ulpianus (on the Edict 4) Whatever action a man desires 
to bring he is bound to give a statement of the nature of it ; it is 
perfectly just that a man who is going to bring an action should 
state the nature of the particular action, so that the defendant may 
thereupon know whether he ought to give way or to maintain the 
contest, and, in case he tliinks proper to maintain it, may not 
address himself to the matter without being sufficiently equipped 
for carrying it on by being acquainted with the kind of action 
which is being brought against him. 1. The word * edere ' (to 
state etc.) includes also enabling the defendant to take a copy, or 
expressing the whole matter in a written statement (Uhellus), and 
handing it to him ; or dictating it. Labeo adds that a man states 
the nature of his action when he takes his opponent up to the 
praetor's album and points out the form which he is going to 
dictate ; or he may do it by mentioning the form which he wishes 
to use. 2. These statements should always be made without day 
and consul, lest, if these are given, some document should be 
concocted and drawn with an earlier date. But the praetor meant 
to bar the day and consul which give the date at which an 
instrument was executed, not that at which, in accordance with its 
terms, payment was to be made; as the day of payment is 
practically the most important thing in a stipulation. But when 
accounts are produced, the day and consul should be given, as 
a credit and debit account cannot be set out to any purpose unless 
day and consul are given. 3. Everything ought to be discovered 
which the party means to produce before the judge ; but the rule 
does not go so far as to compel a man to produce documents which 
he is not going to use. 4. A man is not held to make discovery of 
a stipulation when he does not discover the whole of it. 5. Persons 
who fail to make proper discovery, owing to some blunder caused 



102 On statement of particulars, [book n 

by age, or want of education, or by sex, or any other sufficient 
cause, will be relieved. 

Paulus {on the Edict 3) In an action for a legacy, the 
prsetor does not require the precise words of the testament to 
be given [by the plaintiff], the reason of which perhaps is that the 
heir commonly has a copy of the testament. 

Mauricianus {on penalties 2) The senate decreed that no 
person against whom an action is brought on behalf of the Jlscus 
should be compelled to discover to the informant any otlier docu- 
ments than such as relate to the case in connexion with which the 
applicant declared himself to be informant. 

Ulpianus {on the Edict 4) The prsetor says : — A man who 
keeps a banker's table is bound to jjroduce [to a customer] the 
account in which he is concerned, adding day and consul. 1. This 
Edict is founded on a thoroughly just principle ; the banker makes 
up the accounts of every separate customer, consequently it is only 
right that books which he kept for me and* documents which might 
almost be said to belong to me should be produced for my inspec- 
tion. 2. The above words comprehend the case of the banker 
being one under patria potestas, so that even a person in that 
position is compelled to produce accounts ; whether his father 
is bound too is a question. Labeo says that the father is not 
bound, unless the banking business is being carried on with his 
knowledge ; but Sabinus very properly laid down that this liability 
must be admitted where the son accounts to his father for his 
gains. 3. If, on the other hand, the business is carried on by 
a slave, — which it may be, — then, says Labeo, if the slave carries 
it on with his owner's consent, the owner can be compelled to 
produce accounts, and an action is allowed against him, just as 
much as if he carried on the business himself But if the slave 
acted without his owner's knowledge, it is enough for the owner 
to swear that he has not got the accounts asked for. If the slave 
carries on the banking business with his peculium, the owner is 
liable de peculio or de in rem verso ; but if the owner has got 
the account and declines to produce it, he is liable for the whole. 
4. Even a man who has ceased to carry on the business of banker 
is compellable to produce documents. 5. As to place, a man is 
compellable to produce at the spot where he carried on the busi- 
ness ; this is distinctly laid down. In fact, if he has the books 
relating to the banking business in one province, and the manage- 
^ For meum read meumqiie. Cf. M. 



TIT. xin] a7id discover Lj of documents 103 

ment was in another, I should say he can be compelled to make 
discovery at the place where he carried the business on ; he was 
in the wrong to begin with in taking the books away somewhere 
else ; and if he carries on his business in one place and is called 
upon to disclose in another, he is by no means compellable to 
do it : unless you desire copies at the spot where you make the 
application ; of course at your own expense : 

Paulus {on the Edict 3) and in this case he must have 
time allowed him for bringing the accounts to the place. 

Ulpianus (on the Edict 4) Should any banker, as often 
happens, have got his books at his country-house or in a store- 
house, he must either take you to the place or else give you a copy 
of the accounts. 1. The successors to the banker's estate are 
equally compellable to produce the account. If there are several 
heirs, and one has got the account, he alone is compellable to 
produce it. If all have accounts, and one produces, all the others 
can be compelled to produce too ; as the one who produced 
might be some obscure person of no consideration, so that any 
one might reasonably be in doubt as to the good faith of the 
production. Accordingly, to enable the different accounts to be 
compared, the others are bound to produce as well, or, at any 
rate, sign the account produced by the one. A similar rule 
applies to the case of there being several different bankers from 
whom production is required ; there is no doubt that, if several 
guardians managed a guardianship together, they must either 
all disclose or sign the account disclosed by one of them. 2. The 
person, however, who applies for the order on the banker is 
required to swear that he does not ask for production with vexa- 
tious intent ; otherwise he might ask for accounts which he does 
not require, or which he has got already, in order to give trouble 
to the banker. 3. An account, Labeo says, is a statement of 
mutual transactions of payment and receipt of credit and debt* 
for the purpose of incurring or discharging obligations, and no 
account can begin simply with the bare payment of a debt. 
Moreover, where a party takes a pledge or [security by way of] 
mandatum, he is not compellable to make discovery of the fact, 
as these lie outside the account. But a banker is bound to 
disclose any payment which he engaged for by constitutum ; 
this is included within the scope of the business of a banker. 
4. An action lies in pursuance of this Edict for the amount of 

^ After credendi ins. debendi. M. 



104 On statement of particulars^ [book ii 

the plaintiif' s interest ; 5. from which it is clear that the Edict 
only aijplies where the account is one in which the plaintiff is 
concerned ; and an account may be said to concern me when you 
keep it at my request. But if my agent made the request in my 
absence, will it have to be disclosed to me on the ground that 
it concerns me ? The better opinion is that it will. Moreover, 
I have no doubt that, where a man has an account for me, he 
must produce it to my agent, as one that concerns him ; and the 
latter must undertake that I will ratify his act, if I gave him no 
mandate. 6. If where the books begin there is a date, and in 
such books Titius's account is written, and this is followed by my 
account without day and consul, I can ask to have day and consul 
given for me too ; as the day and consul put at the beginning 
apply to the whole of the account. 7- Production of an account 
is dictating it or delivering a written statement or showing an 
account-book. 8. The prsetor says: — "I will order discovery to 
be made to a banker, or to one who asks for discovery a second 
time, only on cause shown." 9. The reason why he objects to 
discovery being made to a banker is that he himself has the 
means of being fully informed by his own professional papers, 
and it would be absurd that the very man whose position is such 
that he is bound to produce documents should make an applica- 
tion to have documents produced. As to the question whether 
discovery of documents cannot be demanded even by the heir of 
a banker, this is a point to consider ; but the answer is that 
where the books of the business have come to the heir's hands, 
he has no right to discovery, but, if not, the order will be made 
on cause shown. Indeed, on sufficient cause, the account must 
be discovered to the banker himself; for instance, if he proves 
that he has lost his accounts by shipwreck, or by the fall of 
a house, or by a fire, or some similar accident, or that he has 
them at a great distance, for instance, beyond seas. 10. Again, 
the prsetor will not order production on a further application, 
except on cause shown : 

Paulus {on the Edict 3) for example, where the applicant 
shows that he has left in foreign parts the account already fur- 
nished, or that discovery was insufficiently made, or where the 
accounts are some which he lost by unavoidable misfortune, but 
not by his own neglect. 1. If he lost them by some mishap 
which is excusable so far as he is concerned, fresh discovery will 
be ordered. The above expression "further" {iterum) has two 



TIT. xiii] and discovery of documents 105 

significations ; one in which it refers to the second time, which the 
Greeks express by Sevrepov, while the other comprehends subse- 
quent times as well, for which the Greeks use the word irdXtv, 
which is treated as equivalent to 'whenever it is necessary.' It 
may come to pass that a man loses an account which has been 
furnished to him twice, and in this case the word iterum is taken 
to mean * time after time.' 

Ulpianus {on the Edict 4) Where a banker is called 

upon to discover his accounts, he is liable to be punished if he 
maliciously contrives to avoid producing them, but he is not 
answerable for negligence, unless it comes very near malice. 
A man declines discovery maliciously both where he produces 
(sic) accounts with a sinister object and where he declines to 
produce them at all. 1. Where a man offends against this Edict 
he has to pay by way of damages an amount equivalent to the 
interest I had in having the account produced at the time when 
the order was made by the prsetor, not the interest I have now; 
consequently, if my interest has ceased altogether, or has come 
to be less or greater, the right of action wilP [still exist, and it 
will] be for neither more nor less than if my interest had been 
unchanged. 

Paulus {on the Edict 3) There are some persons who are 
bound to discover accounts, but who nevertheless are not com- 
pelled to do so by the praetor in virtue of this Edict. For example, 
where an agent has managed some one's affairs or accounts, he is 
not compelled by the praetor to produce an account on pain of an 
action in factum ; because, in short, the same end can be arrived 
at by an action on mandatum. Similarly, where a partner has 
managed the partnership affairs dishonestly, the prsetor does not 
interfere in pursuance of the above words ; because there is 
the action pro socio open. Again, the prsetor does not compel 
a guardian [under this head] to furnish an account to his ward ; 
but the practice is to compel him to furnish it by the action on 
tutela. 1. It makes no difference whether the successor or the 
paterfamilias or the owner of the banker, [if the banker is a slave,] 
is of the same profession himself or not ; seeing that, as they step 
into the place of the banker and his legal position, they are bound 
to discharge his liabilities. But a person to whom the banker may 
have bequeathed his account-books cannot be held to be included, 
as the words only point to one who succeeds to his legal position ; 

^ After habebii read minus et habebit. Cf. M. 



106 On statement of particulars, [book n 

a legatee is no more included than he would be if the banker 
had given him the books in his lifetime. In fact, the heir him- 
self will not be bound, supposing he does not possess and has 
not maliciously contrived to avoid possessing; still if, before he 
delivers them to the legatee, he should be warned not to deliver 
them [until the application is heard], he will be liable, [if he does 
deliver them,] as for malicious contrivance ; he is also liable so 
long as he has not delivered them. If the heir has delivered them 
without malicious intention, then, on cause shown, the legatee can 
be compelled to produce them. 2. Money-changers too {nummu- 
larii), as we read in Pomponius, may reasonably be compelled 
to furnish accounts, as money-changers keep accounts just like 
bankers ; they receive money and they pay money out, so much 
at a time ; and the evidence of their receipts and payments is 
chiefly to be found in their written entries and account-books, 
moreover reliance is constantly put upon their good faith. 3. As 
a fact, the pra3tor orders discovery to be made to all persons who 
apply for it of such accounts as they are concerned in, an oath 
being taken by the applicants that they do not make the appli- 
cation with vexatious intent. 4. A man is concerned in an 
account, not only where he is himself party to the contract, or 
has succeeded to one who was a party, but also where some one 
subject to his potestas is such a party. 

10 Gaius (on the provincial Edict 1) A banker is ordered to 
produce accounts ; and it matters not whether the case in which 
the application is made is one to which the banker is a party 
or not. 1. The reason why the praetor compels only bankers to 
produce their accounts, and not other persons engaged in a busi- 
ness of a different kind, is that their duties and services are 
discharged in the interest of the public, and their most essential 
function is that of keeping a careful account of their proceedings. 

2. An account is regarded as produced if it is produced from the 
commencement (a capite) ; unless an account is examined from 
the commencement, it cannot be understood ; this of course does 
not mean that everybody is to be free to inspect and copy the 
whole of a man's book of accounts and all his parchments, but 
only that that particulai* portion is to be inspected and copied 
which serves to give the applicant the information required. 

3. The measure of damages in the action being an amount 
equivalent to the interest which the plaintiff has in the account 
being produced, the result is that, whether the applicant suffers 



TIT. xni] and discovery of documents 107 

adverse judgment in an action brought against him, or he is 
unsuccessful in an action which he brings, for want, in either 
case, of the accounts by which he might have supported his case, 
he will recover in this action whatever is the extent of his loss. 
Let us consider, however, whether this is really a practical rule : 
as a matter of fact, if the plaintiff can prove before the judge who 
hears the case between him and the banker that [if he had been 
furnished with the account] he would have been successful in the 
action which he lost, then he must have been in a position to 
prove his point in that action itself [without the account] ; so 
that, if he did not prove it, or he proved it, but the judge did 
not attend to the proof, he has only himself to blame, or else 
the judge. However, this argument is not sound. It may well 
happen that by this time [, when he sues the banker,] he has got 
hold of the accounts, either from the hands of the defendant 
himself, or in some other way, or he may be able to prove, by 
means of other documents, or of testimony, which for some reason 
or other he was not able to bring forward on the former occasion, 
that he would have been able to succeed in the former action [if 
he had had the accounts]. It is precisely on this principle that 
a man has a condictio or an action for damnum injuria if a 
written assurance is stolen or destroyed ; because, though persons 
may have been unable to prove some matter or other at first, 
owing to an assurance being abstracted, and consequently have 
lost their case, they may be able to prove it now by means of 
other documents and testimony which they could not make use of 
on the previous occasion. 

11 MoDESTiNUS {Rules 3) It is established law that copies of 
documents can be properly produced without the signature of the 
party who produces them. 

12 Callistratus {on the monitory Edict 1) Women are held 
to be excluded from the functions of a banker, as that business is 
one for men. 

13 Ulpianus {on the Edict 4) This action is not allowed after 
the lapse of a year, nor against the heir [of the banker], except in 
virtue of some act of his own. It is allowed to an heir. 



108 On Pacts [book n 



XIV. 
On Pacts. 

1 Ulpianus {on the Edict 4) The justice of this part of the 
Edict is founded on Nature : what indeed can be so much in 
accordance with mutual trust among men as the principle of 
abiding by what persons have agreed to ? 1. Pactum is derived 
from pactio — the word pax comes from the same origin — 2. and 
pactio means the consent and agreement of two or more persons 
to the same effect. 3. The word * conventio ' is a comprehensive 
term applying to all matters about which persons who have 
dealings with one another agree by way of forming a contract 
or compromising a dispute ; for just as men are said ' convenire ' 
(to come together) when they are brought together and come 
from different places to one place, so too, when men, starting 
from different inclinations of the mind, make some common 
agreement, in other words, have come to arrive at one resolu- 
tion [, the same word may be used]. So true is it that the term 
* convention ' is of general application that Pedius makes the nice 
observation that there is no contract and no obligation, whether 
concluded by act or by set words, but it involves a convention ; 
even a stipulation, which is made by a set form of words, is null 
and void, unless it involves agreement. 4. Most conventions how- 
ever come to be classed under some special head, such as that of 
sale, letting, pledge or stipulation. 

2 Paulus {on the Edict 3) Labeo says a convention* may be 
made by act or by letter or by a messenger ; in fact, he says, it 
can be made with an absent person. Moreover it is understood 

'' that a convention may be by agreement, even when made tacitly ; 
1. accordingly, if I return to my debtor a written undertaking 
which he gave me, it is held that there is a convention between 
us that I shall not sue him, and the law is that, if I do, he will 
have a good exceptio founded on the convention. 

3 MoDESTiNUS {Rules 3) When, however, an article pledged 
for debt is restored to the debtor, then, if the money is not paid, 
there is no doubt that an action can be brought for the debt, 
unless it is expressly proved that the contrary was intended. 

^ For convenire read conveniri. 



TIT. xiv] On Pacts 109 

Paulus {on the Edict 3) Again, as valid conventions may 
be formed tacitly, it is held that where dwelling-houses {iirhame 
hahitationes) are let, the landlord has a hypothek on things "borne 
in and brought in " (invecta et illata) even where no express con- 
vention was made. 1. According to this, even a dumb man can 
make a 'pactum.^ 2. One illustration of the above is the case 
of a stipulation made for giving dos ; there is no right of action 
for the dos before the marriage takes place, any more than if this 
had been expressly provided, and should the marriage not take 
place at all, the stipulation becomes inoperative without more 
(ipso jure). Julianus holds the same. 3. This lawyer was once 
consulted on the following case which occurred. An agreement had 
been made that, so long as interest was paid [on money lent], no 
action should be brought for the principal, but the stipulation had 
been drawn in absolute terms. Julianus held that the stipulation 
was subject to a condition, just as if this had been expressly 
provided. / 

Ulpianus {on the Edict 4) Of conventions there are three 
kinds. The occasion of making them is either public or private, 
and a private convention either is statutable or is founded on 
the jus gentium. A case of a public convention is that of one 
which is made to conclude peace \ military commanders having 
come to such and such terms with that object. 

Paulus {on the Edict 3) A statutable convention is one 

which is made binding by some statute. Accordingly, in some 
cases a right of action is created or taken away by a pact, that 
is, where this construction is supported by a statute or a decree 
of the senate. 

Ulpianus {on the Edict 4) Of conventions founded on the 

jus gentium some give rise to actions and some to exceptions. 
1. Those that give rise to actions are not simply referred to 
under the name ' convention,' they have come to be classed under 
the special designations appropriate to the particular contracts 
respectively, such as purchase and sale, letting and hiring, partner- 
ship, loan, deposit and similar names. 2, Even if the matter does 
not come to be assigned to some special class of contract, still if 
there is a sufficient additional ground {causa), then, according 
to Aristos well expressed reply to Celsus, there is an obligation 
formed. For example, I gave you one thing on the understanding 
that you should give me another, or I gave you a thing on the 
^ Read pro pace. Cf. M. 



110 On Pacts [book n 

understanding that you should do something ; this, says Aristo, 
amounts to a ^ synaUagma^ and a civil obligation will arise upon 
it. Accordingly I should say that Julianus was rightly taken to 
task by Mauricianus in reference to the following case : — I gave 
you Stichus on the understanding that you should manumit 
Pamphilus, and you manumitted Pamphilus ; but Stichus was 
recovered by some third person in virtue of superior title {evic- 
tus). Julianus tells us that the praetor must allow you an action 
in factmn [against me], but the other says that your case is met 
by a civil action for an unliquidated amount {(dvilis incerti actio), 
that is to say, an action in set terms (prcescriptis verbis), as there 
is a contract formed, or, as Aristo calls it, ' synallagma,' and upon 
that this action arises. 3. If a promise is made with reference 
to some illegal act as an inducement to abstain from committing 
it, on such an agreement no obligation can arise. 4. If there is 
no additional ground (causa), in that case it is certain that no 
obligation can be created, [I mean] on the mere agreement ; so 
that a bare agreement {nudum pactuin) does not produce an 
obligation, it only produces an exceptio. 5. To be precise, it 
does sometimes give its shape even to an action, as in bona fide 
cases ; it is a common saying that agreements by way of pact 
{pacta conventa) are embodied in bona fide actions. But this 
must be understood to mean that if the pact follows as part of 
one continued transaction, it is included in the agreement so as 
even to give ground to an action ; but, if it follows after an 
interval, it is not included, nor will it be of any force, so far as 
relied on by the plaintiff, as otherwise we should have an action 
founded on a pact. Suppose, for example, after a divorce, an 
agreement is made that the dos shall not be given up [to the 
woman] at the end of the regular time for which it may be held 
over, but at once ; this agreement will be of no force, or else 
there would be an action founded on a pact. Marcellus tells us 
the same thing. Again, suppose an agreement is made with refer- 
ence to an action on guardianship that interest shall be paid in 
excess of the established rate, this will produce no effect, else 
there will be an action founded on a pact ; whereas the pacts 
which are embodied in the agreement are those which make the 
very terms of the contract, that is, which were made when the 
contract was originally formed. This was declared to my know- 
ledge by Papinianus, who added that if, subsequently to a purchase, 
some agreement is made after an interval which goes beyond the 
natural character of the contract, no action ex empto [purchaser's 



TIT. xiv] On Pacts 111 

action) can be brought thereon, owing to the same rule, viz. that 
no action is to be founded on a pact. The same must be said in^ 
respect of all kinds of bona fide actions. But on the side of the 
defendant the pact has force, because, according to the ordinary 
practice, pacts give ground to exceptions, even where they are 
interposed subsequently. 6. So true is it that pacts* which are 
made subsequently, and which are connected with the contract 
in question, are included in it, that it is recognised law that 
in purchases, and indeed in bona fide cases in general, so long 
as nothing further has been done, the purchase may be aban- 
doned. But if it can be abandoned altogether, why should 
not a part of it be altered by a pact? This is in fact what 
Pomponius tells us is the case (on the Edict 6); and, that being 
so, a pact will produce an effect even on the side of the 
plaintiff, and will constitute good ground for an action, where 
nothing further has been done ; this on the above principle : 
why indeed, if the whole contract can be set aside, should it not 
be recast? The result will be that there is in some sort held to 
be a fresh contract. 

There is something ingenious in this view; consequently I am 
equally disposed to approve of a view which Pomponius supports 
in his books of Lectiones, that it is possible by means of a pact 
for a purchase to be abandoned in part, on the view that the 
purchase of [the whole is revoked, and then that of] a part is 
made anew. On the other hand, there was a case where a pur- 
chaser died leaving two heirs, and the vendor made a pact with 
one of them that the purchase should be abandoned ; here, 
Julianus says, the agreement was good, and the purchase was 
avoided as to a share, seeing that in the case of any other 
kind of contract one of the heirs might procure an exceptio by 
making an agreement. Accordingly both views are received law 
and very properly, I mean the opinion of Julianus and that of 
Pomponius too. 

7. The prsetor says : — " Pacts agreed on, where they are not 
made with malicious intent, nor contrary to statutes, plebiscites, 
decrees of the senate, or imperial edicts, and there is no fraud 
(fraus) on any of these, — I will uphold." 8. Of pacts some are^ 
in rem some in personam. They are in rem wherever I agree 
generally that I will not sue ; in personam where I agree that 
1 will not sue a particular person, e.g. that I will not sue Lucius 
Titius. The question whether a pact is made m rem or in per- 
1 For exceptiones read pactiones. Cf. M. 



112 On Pacts [book n 

sonam is to be ascertained not more^ from the words of the 
parties who made the agreement than from their intention ; very 
often, as Pedius says, the name of a person is inserted in the 
pact, not in order to make the pact personal, but in order to 
make it plain who is a party to it. 9. The praetor says he will 
not uphold a pact made with malicious intent {dolo malo). Dolus 
malus is committed by cunning and deceitfulness, and, as Pedius 
says, a pact is made with dolus malus whenever, in order to entrap 
the other party, a man aims at one thing and pretends that he aims 
at something else. 

10. As for pacts which appear to be made so as to involve 
fraus (prejudice), the praetor does not proceed to refer to them ; 
in fact, Labeo makes the discriminating remark that, if he did 
so, this would either be unjust or else superfluous. It would 
be unjust if, by the aid of it, a creditor who had once [by such 
a pact] given his debtor a bona fide release should after that 
endeavour to nullify it ; but if the creditor were deceived into 
giving the release, the inclusion of fraus would be superfluous, 
because [such] fraus is included under dolus. 11. Whether the 
pact was made with dolus malus originally, or, after the pact was 
concluded, something or other was done with dolus malus, there 
will be a good replication {exceptw) in both cases alike ; this is 
secured by the words in the Edict — "and there is no fraus." 
12. With regard to the clause commonly inserted at the end of 
a pact, — "Titius asked, Mavius promised,'' — these words are not 
understood as only making a pact, but as making a stipulation 
equally well, consequently an action ex stipulatu arises on them, 
unless the contrary effect is expressly proved, that is, that the 
words were used with the intention of making a bare agreement, 
and not a stipulation. 13. If I make a pact with a man that no 
action shall be brought on a judgment debt'*, or no action for 
burning a house, such a pact is valid. 14. If I agree that I will 
not proceed upon a " notifiication of novel structure " {operis novi 
nuntiatio), some hold that the agreement is not valid, on the 
ground that this is a matter in which the praetor's right of com- 
mand (imperium) comes in ; but Labeo makes this distinction, — 
if, he says, the "notification of novel structure" is made in respect 
of private rights, the agreement can lawfully be made ; if it is 
made in connexion with state affairs, it is not lawful ; and this 
is a sound distinction. Accordingly the law is, as to matters of 
any kind embraced by the praetor's edict, that where they do not 
1 For minus read magis. ^ Del. pro. 



TIT. xiv] On Pacts 113 

involve any question of injury to the public, but only concern 
private rights, a pact may be lawfully made ; in fact the statute 
permits a pact to be made by way of compromising an action for 
theft, 15. Again, a pact not to sue in an action on depositum is, 
according to Poraponius, a valid agreement, and, similarly, where 
a man [sc. the depositee] agrees in a case of depositum to under- 
take the whole risk, this Pomponius says is a valid agreement, 
and is not to be set aside as being contrary to the rule of law: 

16. in short, to put it in general terms, in any case in which the 
pact lies outside every-day law it ought not to be observed ; f nor 
can any inhibition be imposed by legacy to a similar effect, and 
if an engagement not to sue should be made by w^ay of oath, it 
need not be keptt\ so Marcellus says {Dig. 2); and if recourse 
is had to a stipulation in a case where a pact is unlawful, the 
stipulation is not legally binding, but must be absolutely rescinded. 

17. If a man [nominated heirj should, before entering on the in- 
heritance, agree with tlie creditors that they should take less than 
their debts, the pact will be valid. 18. But if it is a slave who 
makes the agreement, before acquiring freedom and with it the 
inheritance, having been appointed heir subject to a condition, 
then, so Vindius tells us, the pact will be of no avail ; but 
Marcellus holds {Dig. 8) that a suns heres and a slave who is 
compulsory heir, both being appointed unconditionally, if they 
make the pact before intermeddling with the goods, make it with 
effect, and this is sound. He says the same of an extraneous 
heir ; and, if he should enter at the request of the creditors, 
Marcellus holds that he has in fact an action on mandatum. 
If however, to take the case mentioned above, a man made the 
pact while he was a slave, Marcellus holds that it catmot be 
pleaded, because it is not the practice that a man should, after 
acquiring liberty, get any advantage from what he did in a state 
of servitude; which cannot be denied as to the exceptio founded 
on a pact, but whether the law goes so far as to refuse an 
exceptio founded on dolus is matter of question. Marcellus in 
cases of the same kind allowed the exceptio doll, though at one 
time he was in doubt about it ; for instance, take this case : — 
a filiusfamilias who was appointed heir made a pact with the 
creditors [that they should take a percentage], he was then eman- 
cipated, and he entered on the inheritance: whereupon Marcellus 
says he could have an exceptio doli. He maintains the same view 
even where a son makes a similar agreement with his father's 

^ The words within t t are hopelessly corrupt, or some part of them. 
M. J. 8 



114 On Pacts [book n 

creditors in the lifetime of his father ; there too, he says, the 
exceptio doli will be allowed ; and the real truth is an exceptio 
doll ought not to be held inadmissible even in the case of 
a slave. 19. At the present day, however, no agreement of this 
kind bars the creditors, unless they meet together and declare 
in pursuance of a general agreement what is the percentage of 
their debts that they are content to accept ; subject to this, that if 
they cannot agree, then the praetor must interpose, who will make 
a decree in accordance with the will of the majority. 

8 Papinianus {Responses 10) Majority is held to mean 
majority in respect of amount of debt, not in number of persons. 
But if the two sides are equal in respect of the aggregate of debt, 
then the majority in number is to be preferred. If the number of 
creditors is equal [too], the prsetor will go by the will of that one 
among them who has precedence in station, but if there is absolute 
equality between the two sides in every respect, the praetor must 
choose the terms which are most humane ; this being what may be 
gathered from the rescript of the Divine Marcus. 

9 Paulus {on the Edict 62) If there are a number of creditors 
who have one common right of action, they are treated as one 
person. For instance, suppose there are several co-creditors by 
stipulation, or several bankers who all gave credit to the debtor at 
the same time ; the co-creditors in each case count for one, there 
being only one debt. And if the contract was made with several 
guardians of a creditor who was under age, they count for one, 
because they agreed on behalf of one ward. Moreover if one and 
the same guardian agrees on behalf of several wards who claim in 
respect of one debt, it is held that he is to be treated as one single 
creditor, since it is difficult to see how one man can act the part of 
two. In fact even a man who has several distinct rights of action 
is not allowed, in competing with a man who has only one, to stand 
for more tlian one person. 1. Aggregate amount of debt may be 
estimated by adding a number of different sums ; for instance, one 
man may have owing to him minute sums amounting altogether to 
a hundred aurei, where another claims one sum of fifty aurei ; in 
which case we must look at the amount which is made up of several 
sums, because these, when added up together hito one sum, exceed 
the other. 2. We must however reckon interest as making part 
of the sum. 

10 Ulpianus {071 tJie Edict 4) According to the terms of the 
rescript of the Divine Marcus, all the creditors have to attend the 



TIT. xiv] On Pacts 115 

meeting. How then if some are absent ? will those who are absent 
be bound to go by the example of those present? Again, one nice 
question raised is whether the agreement will be a bar to pre- 
ferential creditors who are absent; assuming that the agreement 
is one which is binding on absent persons as well as present. 
I remember that, before the above regulation was laid down by 
the Divine Marcus, the Divine Pius declared by rescript that the 
JiscMS itself, in cases where it was not secured by hypothec, and 
preferential creditors in general, would have to be bound by the 
example of ordinary creditors; as all the above regulations must 
be held to be in force with respect to unsecured creditors. 1. If 
to the pact there be added the stipulation of a penalty, it is 
a question whether the proper course is to plead the pact by way 
of exceptio, or to sue on the stipulation. Sabinus holds that the 
person who stipulated can take either course at his pleasure ; and 
this is the better opinion; but if he has recourse to an exceptio 
founded on the pact, it will be fair that he should give a formal 
release of the stipulation. 2. A thing very commonly said is that 
an exceptio founded on dolus is subsidiary to an exceptio founded 
on a pact; in short, as Julianus says, and a great many others 
agree, that in some cases, where an exceptio pacti cannot be had, 
an exceptio doli will be allowed ; for instance, if my procurator 
makes a pact, I shall have a good exceptio doli, so Trebatius thinks ; 
his view being that, just as a pact made by my procurator bars an 
action by me, so, too I can plead one to an action against me : 

Paulus {o7i the Edict 3) seeing indeed that he can give 
a good receipt to my debtor. 

Ulpianus (on the Edict 4) That it does bar my action is 
certain, whether I instructed him to be a party to the pact or he 
was my procurator for all purposes ; as indeed Puteolanus tells us 
(Adsessoria 1), seeing that it is established law that [in the latter 
case] he can join issue on my behalf. 

Paulus {on the Edict 3) But if the procurator was only 
made such for the purpose of bringing an action, an agreement 
made by him does not bar his principal, just as he is not competent 
to give a receipt. 1. If, on the other hand, he has been made 
"procurator on his own behalf," he is treated like a principal, and 
for that reason his own concluded pact must be upheld. 

Ulpianus (on the Edict 4) Similarly it is ascertained law 
that the pact of the magister of a company is good both for and 
against the company. 

8—2 



116 On Pacts [book ii 

15 Paulus {on the Edict 3) Moreover, as Julianus says, the 
pact of a guardian can be pleaded on behalf of the ward. 

16 TTlpianus {on the Edict 4) If a pact is made by the 
purchaser of an inheritance [with a debtor to the same] and the 
vendor of the inlieritance brings an action, he can be barred by an 
exceptio doli ; for, after the rescript of the Divine Pius which laid 
down that the purchaser must be allowed to bring an utilis actio, 
it is only proper that a debtor to the inheritance should have an 
exceptio doli when sued by the vendor. 1. It may be added that 
if it was agreed by the owner of a thing sold and a purchaser that 
the property purchased, — say, a slave, — should be given up, then, 
if the person who sold as owner sues the purchaser for the price, 
he can be met by an exceptio doli. 

17 Paulus {on the Edict 3) If I give you ten, and agree with 
you that you shall owe me twenty, no obligation arises for more 
than ten; no obligation can be contracted of the class formed re 
(by act) save to the extent of what actually passed. 1. Some 
rights of action are taken away by means of a pact in direct law, as 
a right of action for injuria or theft. 2. In the case of a pledge 
there is a right of action founded on a pact, in virtue of jus 
honorarium, and it is nullified by an exceptio, if the party at any 
time agrees not to sue. 3. If a man makes a pact to the effect 
that no action shall be brought against liimself, but only against 
his heir, the heir will not have the exceptio. 4. If I make a pact 
that no action shall be brought against either me or Titius, this 
cannot be pleaded by Titius, even if he should become my heir, as 
such a pact cannot be made available by a subsequent event. 
Julianus gives this rule with reference to a case where a father 
made a pact to the effect that no action should be brought against 
him or his daughter, and the daugliter became heiress to her 
father. 5. An agreement by pact made with a vendor, if it is 
made in rera, can, so a good many authorities hold, be pleaded by 
the purchaser too ; and such, Pomponius says, is the present law ; 
but, in the opinion of Sabinus, even where such a pact is expressly 
in personam, it can be pleaded against the purchaser as well [as 
against the vendor] ; and Sabinus holds that the rule is the same 
even where the succession to the property is by donation [instead 
of sale]. 6. Where the pact is made by a man who has taken 
possession of an inheritance to which he lias no right, then, the 
opinion held is that, if the real heir should recover the property, 
the pact cannot be pleaded either by such heir or against him. 



TTT. xrvj On Pacts 117 

7. Where a son or a slave makes a pact that no action shall be 
brought against the father or the owner, [as the case may be,] 

Gaius {on the provincial Edict 1) then, whether the pact 
relates to a previous contract made with such person himself or 
with his father or owner, he [, such son or slave,] 

Paulus {on the Edict 3) acquires a good exceptio. A similar 
rule applies to a free man who is held to service as a slave in good 
faith. 1. Moreover if a Jiliusfamilias makes a pact to the eflfect 
that no action shall be brought against him, this will give him 
an exceptio, and so it will to his father, if he should be sued 
de pecidio, 

Gaius {on the provincial Edict 1) or de in rem verso, or if 
he should be sued as one who takes up the defence in behalf of 
his son, if this is what he prefers to do. 

Paulus {on the Edict 3) It can also be pleaded by the 
father's heir as long as the son lives ; but in case of the son's death 
it cannot be pleaded either by the father or his heir, because the 
pact was in personam. 1. If a slave makes a pact that no action 
shall be brought against him, it will be inoperative [, if pleaded as 
such] ; as for an exceptio doli, let us consider the point. As to 
this, if the pact lie made was in rem, the exceptio founded on 
a concluded pact will avail both the owner [of the slave in question] 
and his heir, but if the pact was expressly in personam, then the 
owner still has an exceptio doli. 2. Again, a man cannot, by 
making a pact, enable someone else to plead it who is subject to 
his potestas, but he can plead it himself, according to Proculus, if 
he should be sued in the name of the person so subject, and this 
is perfectly sound, provided always that it was so understood when 
the pact was made. But, if I make a pact that you shall not sue 
Titius, and then you bring an action against me in his name, 
I cannot have an exceptio of pact concluded ; what is not open to 
Titius himself will equally little avail for one who defends his case. 
Julianus himself says, — if a father makes a pact that no action shall 
be brought against himself or his son, the better opinion is that 
the Jiliusfamilias is not allowed to plead the pact by way of exceptio, 
he can only plead dolus. 3. A woman under potestas can make 
a pact that she will not sue for her dos when she comes to be sui 
juris; 4. and a man under potestas can make a good pact with 
reference to a legacy which has been left him on a condition. 
5. Where a number of persons have a concurrent right to ask for 
the same entire sum of money as co-creditors, or are co-debtors of 



118 On Pacts [book ii 

the same sum, the question has been raised as to how far an 
exceptio jmcti [founded on an agreement made by one of them] is 
available against or for the others also. As to this, a pact made 
in rem is available in defence of any co-debtor of whom you can 
say that the party wlio made the pact had an interest in such 
co-debtor being free from liability. Consequently an agreement 
made by the principal debtor that he shall not be sued will be 
a defence to his sureties, 

22 Ulpianus {on the Edict 4) unless the understanding was 
merely that the principal should not be sued, but the surety might 
be ; as in that case the surety will not have the exceptio. 

23 Paulus (on the Edict 3) But an agreement made with the 
surety will be no defence to the principal debtor, because the surety 
has no interest in the principal debtor not being sued for the 
money. Indeed it will not be a defence even to his co-sureties. 

1. The defendant to an action cannot as a matter of course plead 
an agreement made [by the plaintiif] with another \ irrespective of 
the kind of interest he has in doing so ; he can only do so where, 
the exceptio being allowed him, the real benefit goes through him 
to the party with whom the agreement was made ; as in the case of 
a principal promisor and those who are bound as sureties on his 
behalf 

24 The same {o7i Plautius 3) But if the surety guaranteed the 
debt on his own behalf, in that case the surety must be treated as 
the principal debtor, and an agreement made with him is held to 
be made with a principal. 

25 The same (on the Edict 3) The same rule applies to two 
co-promisors, or two bankers, if [, in the respective cases,] they are 
partners. 1. A personal pact, according to Labeo, does not aflect 
a third person, as indeed it does not even the heir of a party. 

2. But although a pact made with the surety cannot be pleaded 
by the principal debtor, still, in most cases, so Julianus tells us, 
the principal debtor will have an exceptio doll; 

26 Ulpianus (on the Edict 4) that is to say, where the 
intention was that even the principal debtor himself should not be 
sued. The same principle applies to co-sureties. 

27 Paulus (on the Edict 3) If [two] bankers are partners and 
one of them makes a pact with a debtor, Mill the other be barred 
by an exceptio'^. Neratius, Atiliciuus, and Proculus say that the 
other will not be barred, even if the first made his pact in rem ; 

* Read alio. 



TIT. xiv] On Pacts 119 

the only established rule being, so he says, that the other can sue 
for the whole debt. Labeo says the same ; in fact one partner 
cannot, he says, even novate the obligation, though valid payment 
can be made to him ; and in the same way, where persons under 
potestas lend anything, valid repayment can be made to them, 
though they cannot novate the obligation. This is quite true, and 
the corresponding rule applies to two co-creditors by stipulation. 

1. If an agreement is made with a debtor not to sue for a given 
time, this will not protect either the debtor or his surety for any 
further time. But if the principal debtor, without naming himself, 
enters into a pact that the creditor shall not sue his surety, some 
hold that this will not protect the surety, though the principal 
debtor has an interest in its doing so; for the reason that no 
eooceptio ought to be open to a surety which is not open to the 
principal debtor too. The view I have always maintained is that 
this eooceptio does protect the surety ; it would not be a case of the 
surety acquiring a right through a free person, but rather of 
provision being made for the person himself who makes the pact ; 
and this seem to be in accordance with the present practiced 
2. A man made a pact that he would not sue, and afterwards 
agreed that he might sue ; here the first pact will be nullified by 
the second ; not indeed in direct law, in the way a stipulation js 
annulled by a subsequent stipulation, where such is the intention, 
because the operation of a stipulation is a matter of law, in the 
case of an informal agreement all turns upon fact ; accordingly, in 
the case referred to, the exceptio is rebutted by a replicatio. In 
accordance with this principle it may happen that the first pactum 
will not protect the sureties. But where the pact agreed upon was 
of such a kind that it took away the right of action itself, take, for 
instance, the case of an action for injuricB, the party cannot enable* 
himself to bring an action by making a subsequent pact to the 
effect that he may bring it, because, in this case, the original right 
of action was taken away, and the subsequent pact is ineffectual, 
as a means of conferring a right of action ; an action for wjurice 
cannot be founded on a pact, but only on the commission of 
oflfensive conduct. The same thing may be said as to bona fide 
contracts, where a pact agreed upon nullifies the whole contract, 
as in the case of a purchase ; the operation of a fresh pact is not 
to revive the old obligation, it will only serve to form a new 
contract. Where however an agreement was made subsequently, 

^ For videmur etc. read videmiirque eojure uti. M. 
' ^Q2iAfacere for agere. Cf. M. 



120 On Pacts [book n 

not ill order to take away the whole contract, but only to reduce 
its terms, there a second pact may operate so as to reestablish the 
original contract. This may very well occur in the case of an action 
for dos. Suppose a woman were to make a pact to the effect that 
her dos should be handed over to her at once, and, after that, were 
to make a second pact that it should only be given at the time laid 
down for it by statute ; in that case the dos will thereupon revert 
to its regular legal condition. We have no right to say in such 
a case that the position with respect to dos is made worse by 
means of a pact ; as wherever the right of action for dos reverts to 
those legal implications which were made part of its nature by 
statute, [or, which nature's own law gave it,] the woman's legal 
position in respect of dos is not made worse, it resumes its regular 
character. My master Scsevola is of the same opinion on this 
point. 3. One thing there is which cannot be provided by any 
pact, namely that a man shall not be answerable for dolus ; though 
indeed if a man agrees by pact that he will not bring an action on 
depositmn, the direct consequence seems to be that he agrees not 
to bring an action for dolus ; no doubt such a pact as this can be 
• pleaded. 4. Pacts which create a position contrary to sound 
morals ought not to be observed; as, for instance, where I agree 
not to sue you for theft or injuria, if you should commit such 
offences ; because it is desirable that people should go in fear of 
the penalties attached to theft and injuria ; but such a pact may 
very well be made after the offence is committed. Similarly a man 
cannot make a pact that he will not sue out an Interdict unde vi, 
assuming that it touches some matter of state concern. To sura 
up the matter, where the agreement made by pact is outside the 
scope of private rights and obligations, it cannot be upheld; as 
care must above all things be taken that an agreement made as to 
one matter or with one person shall not produce an ill-effect in 
another matter or in the case of another person. ^5. If you owe 
me ten, and I agree with you that I will forbear to sue you for 
twenty, the law is that you have a good exceptio of pactum 
conventum or of dolus as to ten. Again, if you owe me twenty, 
and I agree not to sue you for ten, the result of your meeting my 
demand with an exceptio will be that I am only at liberty to 
require you to pay the odd ten. 6. But if I stipulated for ten or 
Stichus, and make a pact with you as to ten, after which I sue 
you for Stichus or ten, you can plead ^pactum conventum,' which 
will bar my whole suit; for just as payment or an action or 
^ 5, (i and 7 are absurd, and much of the Latin is barbarous. 



TIT. xiv] On Pacts 121 

a formal release applying to one thing would discharge the whole 
obligation, so too, if there is an agreement interposed by pact 
not to sue for one thing, the whole obligation is got rid of. 
But if our agreement was understood to be that I should not have 
ten given me, but Stichus, then I have a good right of action for 
Stichus, and there is no exceptio that can bar me. A similar rule 
holds as to an agreement not to sue for Stichus. 7- But if you are 
bound to give me, generally, a slave, and I thereupon agree that 
I will not sue for Stichus, then, if I sue for Stichus, I may be met 
with an exceptio of pact, but if I sue for some other slave, there is 
no objection to the action. 8. Again, if I agree not to bring 
a hereditatis petitio against you, and then I sue for specific things 
as heir, you can have an exceptio of pactum conventum drawn to 
suit your case, founded on the intention^ of the agreement in 
question, just as if I were to agree not to sue for a piece of land, 
and I were to sue for the usufruct in it, or not to sue for a ship or 
a building, and I sued for particular distinct portions of them, after 
the whole had been broken up; provided always there were no 
express understanding to a different effect. 9. Where a formal 
release given is void, it is held to amount to a tacit agreement to 
the effect that no action shall be brought. 1 0. A slave who is part 
of an inheritance cannot make a valid pact on the express behalf 
of the person who eventually enters as heir, as that person is not 
yet owner of the slave ; but if the pact concluded is made in rem^ 
the heir can acquire the benefit of it. 

Gaius {on the provincial Edict 1) Pacts which are con- 
cluded in contravention of the rules of the civil law are not held 
valid ; as, for instance, where a ward agrees without his guardian's 
concurrence that he will not sue his debtor, or that he will not sue 
for a given time, say five years: in fact, he can not even give 
a valid receipt for money due, except with the concurrence of his 
guardian. On the other hand if a ward agrees that something 
which he owes should not be sued for, the pact so concluded is 
upheld, because it is open to him to improve his position even 
without the concurrence of his guardian. 1. If the curator of 
a lunatic or prodigal makes a pact that no action shall be brought 
against such lunatic or prodigal, it is more than equitable that 
such an agreement of the curator should be supported ; but the 
converse does not hold. 2. If a son under potestas, or a slave, 
makes a pact that he will not himself bring an action, the pact is 

^ For pactum read actum. Cf. M. 



122 On Pacts [book n 

inoperative. But if either of the last-named makes a pact in rem, 
that is, that the money in question shall not be sued for, this pact 
will be held good in bar of an action by the father or the owner, 
provided the son or the slave had free management of his peculium, 
and the matter about which he made the pact concerns the 
peculium. Even then there is some further qualification; for, 
seeing that it is quite true, as Julianus holds, that however much 
a slave may have the management of his 2)^culium allowed him, 
still he has no right to give it away, — the consequence is that if he 
deliberately makes a gratuitous pact that the money shall not be 
sued for, the pact so concluded ought not to be upheld ; should he 
however as a consideration for such an agreement receive something 
which is worth as much as what he gives, or possibly more, then 
the pact must be upheld. 

29 Ulpianus {on the Edict 4) Again, if a slave lends his owner's 
money, then, according to Celsus, any pact which he made at the 
time of the loan is valid. 

30 Gaius (oti the provincial Edict 1) Still, as to a Jiliusf ami- 
lias, we may well ask whether it is not sometimes the case that, 
even where he agrees that he will himself forbear to sue, the 
agreement is valid ; as, in some cases, a Jiliusfamilias has a right 
of action ; for instance, he has one for injurice. However, as the 
fact is that where an injuria is committed on a son, the father 
himself has a right of action, there is no reasonable doubt that, 
if the father wishes to sue, he will not be barred by the son's 
agreement. 1. Where a man stipulated with a slave for the pay- 
ment of a sum of money which Titius owed him, the question has 
been asked whether, supposing he then sues Titius for the money, 
his action can be and ought to be barred by an exceptio of pactum 
conventmn, on the ground that he must be held to have made a 
pact that he would not sue Titius. Julianus thinks there would be 
no bar to the stipulator's action, except where he has a good right 
of action de jjcculio against the owner of the slave, in other words, 
where the slave had sufficient ground for intervening, for example, 
because he (the slave) owed Titius the same sum : but if the slave 
only intervened as surety, in which case no action de peculio would 
be allowed, then the creditor ought not to be prevented fi-om suing 
Titius ; and it is equally true, in the opinion of Julianus, that he 
ought by no means to be prevented if he took tlie slave for a free 
person. 2. If I stipulate with you, subject to some condition, to 
the effect that you will pay me a sum which Titius owes me uncon- 



TIT. xiv] On Pacts 123 

ditionally, is it the case, supposing the condition fails, that, if I sue 
Titius, I may and ought to be met by an exceptio of pactum con- 
ventum'i Tiie better opinion is that no such excejytio can be used. 

Ulpiantjs {on tJie Edict of the Ciirule jEdiles 1) It is per- 
fectly admissible to make an agreement not to take advantage of 
the Edict of the iEdiles, whether the agreement should be made in 
the course of contracting the sale or subsequently. 

Paulus {07i Plautius 3) With regard to the rule above 
mentioned, that, if a pact not to sue is made with the principal 
debtor, this gives a good exceptio to the surety as well ; this rule 
was adopted for the debtor's own sake, to prevent his being sued 
by the surety on the mandatmn, consequently, if no action on 
mandatum was open, if, for example, the surety guaranteed the 
debt by way of bounty, the proper view to take is that the surety 
will not have the exceptio. 

Celsus (Digest 1) A man promised a dos on behalf of 
a woman who was his granddaughter through his son, and made 
a pact that no action should be brought to recover the dos 
against either himself or his son. If after that the action is 
brought against one who is heir to him along with his son, such 
coheir cannot protect himself by an exceptio founded on the 
agreement, but the son can very well avail himself of it ; since 
the law allows a man to take thought for his heir, and there is 
nothing to prevent his providing for one of his [expectant] heirs 
in particular, on the chance of his becoming heir, and taking no 
thought for the others. 

MoDESTiNUS (Rules 5) It is the opinion of Julianus that 

the legal tie of agnation cannot be renounced by a pact, any more 
than a man can be allowed to say that he does not wish to be 
a suus heres. 

The same (Responsa 2) Two brothers and a sister, Titius, 
Msevius and Seia, divided amongst them an inheritance which 
they shared in common, and executed instruments by which 
they declared that they had made a partition of their maternal 
inheritance, moreover they gave mutual assurances that nothing 
remained undivided. Afterwards, two of them, that is Msevius 
and Seia, who had been absent at the time of their mother's 
death, ascertained that a sum of money in gold coins had been 
abstracted by their brother, of which sum no mention was made 
in the instrument of partition. I wish to know whether, the 



124 On Pacts [book ii 

agreement to divide being made, the brother and sister have 
a good right of action against their brother for division of the 
money abstracted. Modestinus's answer was: — if, on suing for 
a portion of the money which is alleged to have been abstracted 
by Titius, the two plaintiflPs should be met with an exceptio 
founded on a pact in general terms, the fact being that they 
made a composition including the matter as to which Titius 
committed the fraud, without being aware of the truth, there 
would be a good replication of dolus. 

36 Peoculus {Epistles 5) You being in possession of my estate, 
you and I agreed that you should deliver possession thereof to 
Attius ; in this case, if 1 sue you to recover the property, my 
action cannot be barred by an exceptio founded on the agree- 
ment, unless either you have already delivered possession, or else 
you and I made the agreement for your benej&t and it is not your 
fault that you have not made the delivery. 

37 Papirius Justus (on imperial enactments 2) The Emperors 
Antoninus and Verus laid down by rescript that a debtor to a 
municipality could not be excused payment by the curator, and 
that the release made to certain inhabitants of Philippi must be 
rescinded. 

38 Papinianus {Questions 2) The law of the State cannot be 
varied by the agreements of private persons. 

39 The same {Questions 5) The old lawyers hold that an 
agreement obscurely expressed or of doubtful meaning must be 
interpreted against a vendor or locator, such persons having it in 
their power to set down the terms of the contract more clearly. 

40 The same {Resjyonsa 1) A pact in these words, — " I declare 
that you are not bound " need not be intended to be in personam., 
and, being general, it will apply perfectly well between the respec- 
tive heirs of the original parties, in case of legal proceedings. 
1. A man who has lodged an appeal agrees that if a sum of 
money which he has promised to pay by way of compounding 
an action is not paid by a given day, he will comply with the 
original judgment ; the judge of appeal will hereupon, without 
discussing any other point on the main question, proceed upon 
the above as a lawful agreement, just as if the defendant had 
confessed his liability. 2. The coheirs of a deceased person having 
divided the assets and liabilities, the different creditors accepted 
interest from the respective coheirs on the footing of the arrange- 



TIT. xiv] On Pacts 125 

ment, for the whole of their debts, though no formal readjustment 
of liability had been made : —this will not interfere with the rights 
of action which every creditor had previously against all the heirs 
in proportion to the respective shares of the latter in the inherit- 
ance, so long as such heirs do not proceed to oifer to the creditors 
assigned to them respectively the whole of their debts in due 
execution of the arrangement made. 3. A father who had promised 
a dos made a pact to the effect that, after his own death, if his 
daughter should die without children, the marriage having lasted 
up to that time, a certain portion of the dos should revert to his 
brother and heir. If the father (socer) should have other children 
subsequently, and appoint them heirs by his testament, the above 
agreement will give them a good exceptio doli, as the intention 
of the contracting parties was to provide for the heirs, and it is 
clear that whereas the father, in expressing [w^hat he considered] 
his last wishes, referred to his brother, he only did so at a time 
when he had no other children [than his daughter]. 

41 The same (Responsa 11) "If before such a day you pay 
me such a portion of your debt, I will give you a formal release 
for the rest, and discharge you from your liability." The above 
gives no ground of action ; still it is well established that the 
debtor has a good exceptio pacti. 

42 The same {Responsa 17) An agreement was made between 
debtor and creditor that the creditor should not take on himself 
the burden of paying the tax {trihutum) due on land which he 
held as security for the debt, but that that duty should fall on 
the debtor. I gave the opinion that this agreement was not 
binding so far as the Jlscus was concerned, as it was not allow- 
able that a regulation of revenue law should be stultified by 
agreements between private persons. 

43 Paiilus {Questions 5) We know, in the case of a sale, what 
the law requires of the vendor on the one hand and the purchaser 
on the other; but if the parties chose to vary the terms in any 
respect when they made the contract, this must be maintained. 

44 Sc^voLA {Responsa 5) A boy under age being on the point 
of being made to decline his father's inheritance, his guardian 
settled with a majority of the creditors that they should accept 
a percentage on their debts, and the curators made the same 
arrangement with others. The question is this: if the guardian 
is himself a creditor of the father, is he only allowed to retain 
for his own debt an equally small portion ? My answer was that 



126 On Pacts [book ii 

if the guardian brought the other creditors down to a percentage 
on their debts, he was bound to put up with a similar reduction 
himself. 

45 Hermogenianus {Epitomes of law 2) An agreement for 
partition, unless it takes formal effect by a delivery or a stipula- 
tion, will, being a bare pact, afford neither party ground for an 
action. 

46 Tryphoninus (Disputations 2) An agreement made between 
heir and legatee to the effect that the former need not give security 
is recognised to be valid, as there is an enactment of the Divine 
Marcus enrolled in the Semestria to the effect that the will of 
the deceased shall be binding on this point as well as any other. 
Moreover, where the heir has been released by the legatee by 
means of an agreement to that effect from the duty of giving 
security, the latter cannot be allowed to change his mind and 
revoke the release, as it is quite open to a man to alter for the 
worse his means of enforcing his rights at law or his expectation 
of realising his claims at some future time. 

47 Sc^voLA (Digest 1) A purchaser of land gave an under- 
taking that he would pay twenty, and promised the same by 
stipulation ; after this the vendor gave an undertaking to the 
effect that he had agreed that he would be content with thirteen, 
and that he should receive payment of that sum within a specified 
time. The debtor, on being sued for the latter amount, agreed 
that, if it were not paid within a further specified time, he should 
be liable to be sued on his original undertaking. The question was 
asked whether, on failure on the part of the debtor to fulfil the 
later^ agreement, the whole debt could be demanded in pursuance 
of the original undertaking. I answered that, taking the facts as 
stated, it could. 1. Lucius Titius, having a complicated account 
with Gaius Seius, a moneychanger (mensularius), comprising a 
number of receipts and payments, made Seius his debtor, and the 
latter handed him a written document in the following terms: — 
" Whereas you have had a moneychanger's account (ratio mensce) 
with me, I have in my hands at this time, as the balance resulting 
from a great number of transactions included in the said account, 
three hundred and eighty-six [aurei], and the proper interest 
thereon. As for the sum of aurel which I hold to your credit 
without express agreement, I engage to repay it. If any instru- 
ment issued, that is, written, by you is remaining in my hands for 

^ For posteriore read posteriori. Cf. M. 



TIT. xiv] On Pacts 127 

whatever reason, whatever the amount may be, it is to be held 
void and treated as cancelled." The following question arose. 
Some time before this instrument was made Lucius Titius had 
requested Seius the moneychanger to pay the former's patron the 
sum of three hundred ; must we say that, considering the terms 
of the above letter, by which all written engagements connected 
with whatever contract were to be held void and treated as 
cancelled, neither Seius nor his sons can be sued in respect 
of the last-mentioned matter? I answered that if the account 
mentioned only included the receipts and payments made, all 
other debts remained as they were. 

Gaius {on the Twelve Tables 3) It is perfectly clear that 
any pact that is made on a delivery of property is valid. 

Ulpianus {on Sabinus 36) If a man lends money and 
makes a pact that he will only sue the debtor for payment to 
the extent of what the latter is able to pay, is this a valid 
agreement? The better opinion is that it is; there is nothing 
dishonest in a man desiring to be sued for payment to such extent 
only as his means allow. 

The same {on Sabinus 42) On a contract of deposit, or 
a loan for use, or a locatio, or any other similar contract, I should 
say that there is nothing inadmissible in an agreement such as the 
following : " You must not make my slave a thief or a runaway " ; 
in other words, "You must not incite him to become a thief or 
a runaway, you must not be so negligent in providing for him as 
to cause him to take to stealing." Just as there may be an action 
brought for corrupting a slave, so too, on the same principle, there 
may be such an agreement as the above, which aims at preventing 
the corruption of slaves. 

The same {on the Edict 26) If you believe [erroneously] 
that you are bound in pursuance of a legacy to agree with 
a debtor that you will not sue him, and accordingly he enters 
into such a pact, the debtor will not be released in strict law, 
nor can he bar your action by pleading the agreement by way 
of exceptio, so Celsus informs us (lib. xx). 1. The same writer 
adds the following: — If you believe erroneously that you have 
to pay a legacy to Titius, and you instruct your debtor to pay 
it, and the debtor who is already a creditor of Titius, agrees 
with him that he will not sue him, this wiU not put an end 
to your right of action against your debtor, nor to his against 
his debtor. 



128 On Pacts [book n 

52 The same {Opinions 1) A letter by which a man pledged 
himself that such a one was coheir jointly with himself will not 
give the latter any right of hereditatis petitio against persons 
who are in possession of assets of the deceased. 1. Land being 
pledged as security for debt, an agreement is made between the 
debtor and a person who purchased from the pledgee, professing 
to do so on the debtor's behalf, that the profits already received 
should be set off" against what was owing, and the balance 
should be paid, and thereupon the land should be restored to 
the debtor; — in this case, [on the death of the purchaser,] his 
heir is bound to observe the agreement entered into by the 
deceased. 2. If an agreement is made that any sums already 
paid by a i)ledgee of land in discharge of the land tax (tributum) 
due from the estate subject to the pledge should be recoverable 
from the pledgor (debitor), and future sums payable out of the 
same land should be paid by such pledgor, this is a lawful 
agreement and must be upheld accordingly, 3. Certain persons 
threatening to bring the plaint for an inofficious testament made 
by their father, the heir agreed that they should receive a specified 
amount as long as he lived. A claim was made to have this pact 
treated as making a perpetual obligation, but it was laid down by 
rescript that by no law or principle of justice could such a demand 
be entertained. 

53 The same {Opinions 4) There is no harm in advancing to 
a person engaged in litigation the expense of his action ; but an 
agreement to the effect tliat instead of the amount expended for 
the purpose of the action being returned with lawful interest, the 
half of whatever is gained by the suit shall be handed over is an 
unlawful bargain. 

54 Sc^voLA {notes to Julian Digest 22) If I had a right 
to ask for Stichus and I agree not to sue for him, it cannot be 
said that my debtor is in default; and, if Stichus dies, I do not 
think the defendant is liable, if he was not in default before the 
pact was made. 

55 JuLiANUS {Digest .35) If a debtor has a usufruct in a slave, 
and the slave who is the subject thereof enters into a pact to the 
effect that the debtor shall not be sued, by this pact he improves 
the debtor's position. Again, if the creditor had the usufruct in 
a slave, and made a pact that he would not sue, but the slave in 
whom he had the usufruct thereupon agreed that the creditor 



TIT. xiv] On Pacts 129 

might sue, the creditor might perfectly well claim to be allowed to 
sue in virtue of the pact interposed by the slave. 

56 The same (o/i Minicivs 6) If it is agreed that a landlord 
shall forbear to bring some action against a tenant, and the agree- 
ment is made on sufficient grounds, there is nothing in this to 
prevent the tenant from bringing an action against the landlord. 

57 Florentinus {Institutions 8) A man who accepts interest r 
from his debtor in advance is held to make a tacit pact that he 
will not sue for the principal before the time by which the interest 
would have been payable. 1. If a pact is expressed in such terms 
that it is in rem with respect to one party and is in personam 
with respect to the other, as, for example, where the terms are 
that I will not sue or [and?] that you shall not be sued, then my heir 
will have a good right of action against all of you, (i.e. you and 
your heirs,) and all of us, (i.e. I and my heirs,) will have a good 
right of action against your heir. 

58 Neratius {Parchments 3) In cases of purchase and sale, 
letting and hiring, and any similar contracts, it is undisputed that, 
so long as nothing further is done, the parties who are bound to 
one another can by mutual agreement withdraw from the contract. 
Aristo's opinion went further: if, he said, I have done for you all 
that I was bound to do as vendor, and thereupon, the purchase- 
money being still OAving, you and I agree that you shall restore to 
me everything connected with the thing sold which you received 
from me, and that you shall not pay the purchase-money, and you 
accordingly restore everything, you will thereupon cease to owe 
me the money, because, according to the received view as to 
bona Jides, which affords the guiding principle in all such cases, 
the agreement in question is a bona fide convention. It would 
make no difference whether, before anything were done in pur- 
suance of our respective obligations, we agreed to abandon the 
contract or you first restored to its original position everything 
that I had given you, and then we agreed that you should not 
give me anything in pursuance of the contract. One thing there 
is which certainly cannot be effected by any agreement concluded 
with the object of making void a previous arrangement; you 
cannot be compelled in that way to give me back what I have 
once given you; were this the case, our operations would consist 
not so much in getting rid of our old contract as in creating 
between us fresh obligations of some kind. 

M. J. 9 



130 On Pacts [book ii 

59 Paulus (Rules 3) Wherever a man can acquire any right 
through a stipulation made by another, the law is that his position 
can be improved by pacts agreed on by the agency of the same 
person. 

60 Papirius Justus (Imperial enactments 8) The Emperor 
Antoninus laid down in a rescript to Avidius Cassius that, if the 
creditors of a deceased person are willing to take a percentage on 
their debts out of the estate, though it were from an heir who is 
a stranger, tliose akin to the deceased should be first considered, 
if substantial persons. 

61 PoMPONius (on Sahmus 9) No man can by means of a pact 
deprive himself of the right to consecrate (dedicare) his own 
ground, or to bury a dead body on his own land, or to dispose 
of his estate without his neighbour's consent. 

62 FuRius Anthianus (on the Edict 1) A debtor, after first 
agreeing that he shall not be sued for tiie debt, the result of which 
pact is that his surety is protected as well, makes another agree- 
ment that he may be sued : the question has been raised whether 
the surety thereupon loses the benefit of the former agreement. The 
better opinion is that when the surety has once acquired a right 
to an exceptio founded on a pact, it cannot after that be wrested 
fi'om him against his will. 



XV. 

On compromising and compounding. 

Ulpianus (07i the Edict 50) When a man compromises 
a case (transigit), the subject of compromise is some question at 
issue which he treats as doubtful, and the result of the trial as 
uncertain, the case not being concluded. But one who comes to 
terms (paclscitur) gives up gratuitously and by >vay of bounty 
something distinct and undisputed. 

The same (on the Edict 74) For a man to agree to a com- 
promise there need not be any Aquilian stipulation added, it is 
enough that terms are agreed upon by way of pact. 

Sc^voLA (Digest 1) The Emperors Antoninus and Verus 
issued the following rescript : " It is beyond question that private 
agreements cannot impair the rights of those who are not parties 



TIT. xv] On Compromising and Compoimding 131 

to them. Consequently whatever compromise has been made 
between the heir and the mother of the deceased, the testament 
cannot be held to be rescinded by it, and legatees and manumitted 
slaves have not lost their rights of action ; so that whatever they 
wish to sue for in pursuance of the testament, they must bring 
their action against the person who is named therein; who, when 
he compromised the question of inheritance, either took measures 
for his own protection in respect of the burdens which fall on the 
heir, or, if he did not, has no right to allow his own neglect to 
prejudice other persons." 1. A compromise being made [between 
the above parties] in respect of a Jidei commissum [made in favour 
of the mother], and afterwards the "codicils" themselves being 
found : I desire to ask, supposing the mother of the deceased has 
received less in pursuance of the compromise than was properly 
due to her, whether she has a right to get the difference in virtue 
of the Jidei commissum. The answer was Yes. 2. A secured 
creditor having sold the property pledged [and died], the debtor 
agreed with one Msevius, — who gave himself out as the statutable 
heir of the creditor, — to terms of composition very advantageous 
to the latter ; after which, the creditor's testament being produced, 
it turned out that his real heir was Septicius. Hereupon these 
questions were asked: if the debtor sues Septicius in an action 
on the pignus, can the latter have an eocceptio founded on the 
composition which the plaintiff [debtor] made with Meevius, who 
was not really heir under the testament?^ and will Septicius 
have a condictio to recover from Msevius the money which the 
debtor paid Msevius under the impression that he was heir, on 
the ground that Msevius received it on the pretence of being 
heir? The opinion given was that on the above statement of 
fact the answer was No [to both questions] ; as Septicius was 
not himself a party to the compromise with the debtor, and 
when Msevius received the money he was not acting on behalf of 
Septicius. 

Ulpianus {o7i Sahinus 46) The Aquilian stipulation abso- 
lutely supersedes and annuls all preceding obligations, and it is 
itself annulled by the acceptilatio ; this is the present practice. 
(Consequently even bequests which are made on a condition come 
within the scope of the Aquilian stipulation. 

Papinianus {Definitions 1) When an Aquilian stipulation 
is employed, given, that is, on agreement, any actions at law which 
^ For tempore rea<i testamento. Cf. M. 

9—2 



132 On Compromising and Compoiinding [book ii 

the parties did not have in their minds remain unaffected. Those 
learned in the law have adopted a method of interpretation which 
will defeat any release made insidiously. 

Gaius {on the provincial Edict 17) Where disputes arise 
out of a testament there can be no compromise nor any inquiry 
into the facts made without inspecting and taking note of the 
words of the testament itself. 

Ulpianus {Disputations 7) A compromise is valid even 
after judgment if an appeal has been made or can still be 
made. 1. A surety was sued and judgment given against him; 
after which the principal debtor compromised matters with the 
successful plaintiff. The question is asked whether the compro- 
mise is valid. I should say that it is, and that every previous 
ground of claim is taken away as against either the principal 
debtor or the surety. If however the surety made the compro- 
mise himself after judgment was pronounced against him, then, 
although the compromise does not annul the judgment, still the 
obligation incurred under the judgment ought to be considered as 
discharged to the extent of anything that was given in pursuance 
of the compromise. 2. So true is it that whatever was given, 
though not to be taken in discharge of the compromise, is still 
so much off the judgment debt, that on the faith of this construc- 
tion it has been lield, and indeed embodied in a rescript, in a case 
where a compromise was made, without the leave of the prastor, 
of an obligation to furnish an alimentary provision, that what 
was given in pursuance of the compromise was a good part 
performance of the duty to furnish the provision ; the whole 
result being that whatever might still be owing by way of such 
provision would have to be supplied, but credit must be allowed 
for what was given already. 

The same {on all the Courts 5) It being observable that 
persons for whom an alimentary provision had been made by 
testament were very ready to compound their claims, and were 
satisfied to take a small sum in immediate payment, the Divine 
Marcus provided, in an address which he recited in the Senate, 
that no composition as to an alimentary provision should be 
upheld, except where made on the praetor's authority. Accord- 
ingly the practice is for the prsetor to interpose and decide, as 
between the parties to the agreement, whether any composition 
ought to be admitted, and, if so, what shall be the terms of it. 
1. Whether the subject of the bequest is a provision for lodging. 



TIT. xv] On Comj^romising and Compounding 133 

or dress, or for maintenance charged on land, in all cases the 
same praetor holds an inquiry as to the composition to be made. 
2. The Emperor's address deals with maintenance left by testament 
or by codicils, whether the codicils are supjilementary to a testa- 
ment or there was no testament. The same rule holds equally where 
the provision was made by a donatio mortis causa, or is a charge 
on a person to whom a donatio mortis causa was made: and 
where the provision is made by way of fidfilling a condition, the 
rule is still the same. No doubt, where the gift of mahitenance 
is unconnected with the death of the giver, the composition 
may be made without the leave of the prjetor. 3. Accordingly, 
whether the gift provides for monthly, daily or annual payment, 
the Emperor's address applies; and the same is the case where 
the provision is not to be perpetual, but for a specified number 
of years. 4. If a capital sum of money is left a man by testa- 
ment, for him to live on the interest and restore the whole sum 
at his death, the address still applies, although it cannot be held 
that such a bequest is one which provides for annual payments. 
5. However, if a sum of money or some specific thing should be 
left to Titius, on the understanding that he is to provide Seius 
with maintenance out of it, the better opinion is that Titius can 
compound for it, as the provision for Seius is not reduced by 
Titius's composition. The same holds too if the legatee^ is charged 
with maintenance by way of Jidei commissum. 6. The kind of 
composition which the Emperor's address is directed against is 
one which is made in order to enable a man to spend the present 
value of a provision given him. How would it be then if he were 
to make an arrangement, without the pi'a^tor's authority, to the 
effect that whereas a provision was left him, payable yearly, he 
should receive it monthly, or, where it was payable monthly, he 
should receive it daily? or how if he had a right to^ receive it 
at the end of the year, and he arranged that he should have it at 
the beginning ? I should say that any such agreement is valid, be- 
cause, in the case of arrangements such as mentioned, the person 
to be provided for improves his position ; what the Emperor's 
address aimed at preventing was compositions being made so as 
to cut short alimentary provisions. 7- It is a matter of indif- 
ference whether the beneficiaries in these cases are freedmen or 
freeborn, also whether they have an independent competency or 
not. 8. The points which the decree requires to be investigated 
in the praetor's court are these: first, what is the motive for 
^ Before legatario ins. a. Cf. M. ^ Del. ut. M. 



134 On Compromising and Compounding [book ii 

making the composition, secondly, wliat is the scale of payment, 
thirdly, what are the personal characters of the parties. 9. As to 
the motive, the question to inquire into is what reason there is 
for making a composition at all ; the prsetor will not listen to 
one who desires to compound without good ground. The reasons 
generally given are very much as follows: — that the heir lives in 
one place and the beneficiary in another ; or that one of the two 
intends to change his place of abode; that there is some urgent 
reason for having a capital sum of money in hand ; or that 
a provision for maintenance has been charged on several heirs, 
and it is a troublesonie thing to have to apply for a number of 
small sums of money to different persons ; or whatever other 
reason there may be among the many which constantly occur 
for inducing the praetor to allow a composition to be made. 
10. The amount of money which is the subject of the arrange- 
ment has also to be considered, in short, the sum for which the 
composition is to be made: this very question of amount may 
help to estimate the good faith of the transaction. The amount 
should be fixed according to tlie age of the party who accepts 
the composition and the state of his health, it is obvious that the 
terms would vary according as the party were a boy, or a young 
man, or an old man ; as of course a provision for maintenance 
comes to an end on death. 11. Regard must also be had to the 
character of the parties, that is to say, it must be considered what 
are the habits of life of the persons to whom the provision is left, 
whether, for example, they are persons who are prudent in their 
habits, and can maintain themselves independently, or are of a 
lower type, and have to depend on the provision. With regard 
to the person on whom the provision is charged, the points to 
look at are these: — what are his means, what is his way of life, 
what reputation has he? These will make plain whether he has 
any wish to defraud the person with whom he proposes to make 
the composition. 12. When a man makes a composition about an 
alimentary provision, he will not be held to be therein making one 
about a provision for lodging or for dress, as the Divine Marcus 
had an eye to compositions being made in respect of these matters 
too, independently of the case first mentioned. 13. It may be 
added that where a man enters into a composition on the subject 
of alimony, he will not be bound to proceed to do the same with 
reference to a provision for lodgings or anything else against his 
will; so that he can either make the composition as to all these 
matters at once or as to one or more in particular. 14. Shoe- 



TIT. xv] On Compromising and Compounding 135 

money too can only be compounded for in pursuance of the prsetor's 
judgment. 15. If land is left to one or more persons by way of 
provision, and they wish to sell it, a decision of the praetor must 
be had as to the sale and the terms of the composition connected 
with it. Again, if land is left to several persons by way of 
alimentary provision, and they make a composition among them- 
selves, the composition cannot be upheld if made without the 
leave of the preetor. The same holds if landed security is given 
for a provision, as, even where a mortgage is made with this 
object, the property cannot be released without application to 
the praetor. 16. It is more than plain that whether the compo- 
sition relates to the whole of the provision or to a part of it 
only, the decision of the prsetor is required for it. 17. If, when 
application is made to the praetor, he allows the composition to 
be made without any inquiry into the circumstances, the arrange- 
ment will be null and void ; the affair was put into the praetor's 
hands for him to inquire into it, not for him to neglect it or give 
it away. Even if he fails to extend his inquiry to every point 
which the Emperor's address enjoins, viz. the motive, the amount 
proposed and the character of the parties, then, although he 
should inquire into some points, still the rule is that the arrange- 
ment is void. 18. Moreover, in this matter, the 2)7'(vses of the 
province, or the praetor, is not at liberty to delegate his authority. 
19. A composition on the subject of an alimentary provision can 
be made before the Imperial procurator; for instance, where the 
provision is claimed from the Fiscus ; consequently a composition 
can be equally settled before the Praefectus ^Erarii. 20. If an 
action is pending relative to a provision, but the action is com- 
promised, the compromise cannot be held good without application 
to the praetor, because otherwise the Emperor's address might be 
evaded ; as it would be possible for a feigned action to be brought, 
in order that a composition might be made ^vithout the praetor's 
leave. 21. Should it happen that an alimentary provision is left 
to a person, and, in addition to this, a legacy to be paid at once, 
and then a composition is made without the sanction of the 
praetor, any money already paid will be first appropriated to the 
legacy which was to be payable at once, and anything over and 
above to the provision. 22. If a man compounds in respect of 
a provision, without the praetor's leave, anything paid [in pursu- 
ance of the composition] will go in discharge of arrears of the 
provision. It matters not whether the amount of such arrears 
was exactly what was paid or less or more ; even if it was less, 



136 On Compromising and Compounding [book n 

still what was paid must be appropriated to the arrears of the 
provision. It is true that if the party who compounded about 
a provision which he was to receive is the richer by the payment 
made, it will be perfectly fair that an action should be allowed 
against him to recover the amount by which he is the richer, as 
he has no right to be enriched by another man's loss. 23. If 
a fixed annual allowance should be left to some one in a superior 
Qionestior) position, say, for instance, there is a gift of a yearly 
pension, or a usufruct, then a composition may be made without 
af>plication to the prsetor ; but if a small usufruct is left by way 
of maintenance, I should hold that in such a case a composition 
made without the praetor's sanction is null and void. 24. If what 
is left a man as a provision is not money, but corn or oil or any 
other necessary of life, he is not at liberty to compound in respect 
of them, whether the allowance was annual or monthly. If how- 
ever he makes an arrangement without the prsetor's leave to the 
effect that, instead of some provision such as above mentioned, 
he should receive a payment in money every year or every month, 
and, in so doing, he does not alter the day or the amount, but only 
the nature of the provision; or should he, to take the converse 
case, agree to take his provision in kind, where it was left him 
in money, or say he arranges to have wine instead of oil, or oil 
instead of wine, and so on, or he changes the place, so as to take 
the provision in a municipal town or a province, when it was left 
him in Rome, or vice versa ; or he changes the person chargeable, 
so as to take at the hands of one only what he had a right to at 
the hands of several, or to accept the liability of one person in the 
place of that of another; — in all these cases the praetor must 
exercise his judgment, and the question ought to be considered 
from the point of view of the interest of the beneficiary. 25. If 
a fixed annual sum is left for lodging, and an arrangement is made 
without the praetor's leave to the efifect that actual lodging shall 
be given, this is a valid composition, as the party gets the benefit 
of a lodging, though it is true tliat the lodging^ is liable to be 
lost by collapse or fire. Again, in the converse case, where the 
parties agree that, instead of a lodging which was left, a fixed 
sum shall be given, the arrangement is good, even without the 
praetor's leave. 

9 The same {Ojnnions 1) A man sued his guardians in 
respect of such liability as they had incurred in the course of 

^ Del. transact in. M. 



TIT. xv] On Compromising and Compounding 137 

their administration as guardians to himself alone, and compro- 
mised the action. If after that he brings a similar action as 
representative of his brother, whose heir he is, against the same 
defendants, they cannot bar it by pleading the compromise made 
{prescrlptione transactionis factce). 1. Wherever a compromise 
is made, it is considered to apply to those points only on which 
the parties really came to an agreement. 2. Where a man who 
was, tln-ough the fraud of a coheir, in ignorance of all the real 
facts of the case, executed an instrument of compromise without 
the Aquilian stipulation, you cannot say he has made an agree- 
ment; rather he is defrauded. 3. Where a man who has not 
yet ascertained that he has a right to bring a plaint to set aside 
his father's testament has made an agreement to compromise 
other matters with adverse claimants, fthe agreement so con- 
cluded will only bar his action in respect of those matters which the 
parties are shown to have had in their minds ^ ;f though the person 
who consented to the compromise was over twenty-five; for as 
for anything for which it only becomes known subsequently that 
he had a right to bring an action at all, it is not right tliat he 
should lose through the agreement what the parties are not shown 
to have been thinking about. 

10 The same {Responsa 1) Where a father compromises the 
rights of sons who were not under his 2)otestas, the law by no 
means allows them to be prejudiced by it. 

11 The same {on the Edict 4) After judgment has been given, 
although no appeal has been lodged, still, if the fact of judgment 
having been given is disputed, or it is possible for a party to be 
ignorant whetlier the fact is so or not, then, as there is some 
possibility of a trial being held, a compromise can be made. 

12 Celsus {Digest 3) No indulgence must be shown to a man 
who, after making a compromise as to bequests in general made 
to him, proceeds to found some claim on the alleged fact that he 
was only thinking about what was left him at the beginning of 
the testament, and not what was left in a subsequent part as well. 
But if codicils are produced afterwards, then I should say he may 
very honestly tell me that he was only thinking about what was 
contained in the text of those testamentary papers which he knew 
of at the time. 

^ The phrase between t t is repeated in the text with some variation by a 
blunder ; I omit the second version, v. M. 



138 On Compromising and Compounding [book n 

13 ^MiLius Macer {on the Jive per cent, statute as to inherit- 
ance 1) None of the Imperial procurators are allowed to com- 
promise an action without first consulting the Emperor. 

14 Sc^voLA {Responsa 2) A dispute arose between the 
statutable heir and a person named heir in the testament, and, 
an arrangement having been made with the creditors, the dispute 
was settled on certain specified terms. I wish to know who it 
is that the creditors can sue. The answer was, if the creditors 
were themselves parties to the arrangement, then what has to be 
followed with reference to the debts is whatever the terms were 
that they agreed upon ; but if the creditors [on whose behalf you 
ask] were not parties, then, owing to the doubt existing as to 
who it was that was really heir to the deceased, the two parties 
mentioned will be liable to utiles actiones to the extent of the 
shares in the inlieritance which they both agreed in the arrange- 
ment that they should respectively take. 

15 Paulus {Sentences 1) A pact agreed upon is commonly 
followed by an Aquilian stipulation, but the better conceived 
plan is to add a penal stipulation as well, because, if the pact 
should chance to be rescinded, the penalty can be sued for in an 
action on the stipulation. 

16 Hermogenianus {Epitomes of law 1) Where a man breaks 
faith in respect of a lawful compromise, he is not only liable to 
be barred by an exceptio, but he may be compelled to pay any 
penalty which he has promised to pay in proper form on stipula- 
tion, in case he should commit a breach of the agreement while the 
pact was still in force. 

17 Papinianus {Questions 2) The vendor of an inheritance, 
after assigning his riglits of action to the purchaser, made a com- 
promise with a debtor to the inheritance who was not aware of 
the sale; if the purchaser of the inheritance should take steps 
to enforce the debt, the debtor must be allowed in virtue of 
his ignorance to plead by way of exceptio that the matter was 
compromised. A corresponding rule must be laid down for the 
case of a man who takes an inheritance in pursuance of a Jidei 
commissum, if the heir-at-law compromises matters with a debtor 
who is unaware of the facts. 



THIRD BOOK. 

I. 

On motions. 

1 Ulpianus {on the Edict 6) The prsetor published this 
title by way of taking measures for keeping up his dignity, 
and also for maintaining a becoming order, desiring to prevent 
motions being made before him at random and without dis- 
crimination. 1. With this object he established three classes ; 
some persons he would not allow to move the court at all, 
others he allowed to make motions on their own behalf, others 
again he allowed to move for particular kinds of persons 
only, and also for themselves. 2. To move (postulare) is to 
set forth one's own request or that of one's friend in court 
to the magistrate who presides, or to oppose a request made 
by the other party. 3. The praetor begins with those who 
are forbidden to make any motion at all. Here the grounds of 
exclusion given are childhood and accidental defects. As for 
childhood, the Edict forbids any one to move the court under the 
age of seventeen, that is, if he has liot completed that number 
of years, as the praetor considered that that time of life was too 
early for any one to come forward in public ; though it is said that 
Nerva the son actually gave opinions on legal questions when he 
was of that age or a little older, to any who consulted him. As for 
accidental defects, the praetor forbids motions to be made before 
him by persons who are deaf, i.e. such as cannot hear at all ; it 
would in fact have been impossible to allow a man to make a 
motion who was unable to hear the praetor's decree ; indeed, it 
would have been dangerous to the man himself, because, if he did 
not hear the decree, he would be liable to be punished for 
contumacy, on the ground that he did not obey the order of the 
court. 4. The praetor's words are : — " if they have no advocate, 



140 On Motions [book in 

I will give them one." It is not the praetor's practice to show 
this indulgence to the above mentioned class only, he extends 
it to all alike who for specific reasons, such as machinations or 
intimidation on the part of their opponents, fail to find counsel. 
5. Under the second head the Edict deals with persons who are 
forbidden to move on behalf of others : here the praetor excludes 
on the ground of sex and accidental defect, he also puts a mark on 
persons who deserve one for bad character. With regard to sex, 
he forbids women to move on behalf of other persons. The prin- 
ciple of this prohibition is that of preventing women from mixing 
themselves up with other people's aflairs contrary to the modesty 
which becomes their sex, or discharging offices proper to men ; 
the first case that gave occasion to the prohibition was that of 
one Carfania, a most pertinacious woman, who so worried the 
magistrate with shameless applications as to give ground for the 
rule laid down in the Edict. As to accidental defect, the praetor 
debars a man who has lost the sight of both eyes ; such a man 
being unable to see the magisterial badges of office and so pay 
them due respect. Labeo tells us that in a case where one 
Publilius, a blind man, father of Asprenas Nonus, wanted to make 
an application to the court, Brutus turned his seat round and 
refused him a hearing. However although a blind man cannot 
move on any one else's behalf, still he retains his senatorial rank, 
and he can discharge the office of judex. It may be asked 
whether he is able to hold magisterial offices : this point must be 
considered. There is an instance of a blind man bearing sucli an 
office ; indeed Appius Claudius the Blind took part in public 
debates, and pronounced a very harsli view in the senate in the 
matter of the j)risoners taken in the war with Pyrrhus. However 
the best rule to lay down is that such a man is at liberty to keep 
any magistracy which lie has already begun to exercise, but is 
absolutely forbidden to be candidate for another ; and there are 
plenty of precedents to confirm this view. G. The praotor also 
debars from moving on behalf of others any man who has been 
used like a woman against nature. But a man who has suffered 
this outrage by force from brigands or enemies ought not to have 
a stigma put upon him, and this is said by Pomponius. A man 
who has been condemned on a capital charge is not allowed to 
move on behalf of others. Moreover there is a decree of the 
senate by the terms of which a man Avho has been condemned on 
a criminal charge for false accusation (calumnia) is not allowed to 
make a motion even before a subordinate judge (Judex- pedaneus). 



TIT. i] On Motions 141 

Again a man is excluded who hires himself out to fight with beasts. 
In applying the word beasts (hestice) we must consider the savage- 
ness of the particular animal rather than the question of its 
species ; the creature might for example be a lion, but a tame 
lion, or some other animal with fangs, but still tame. It appears 
from the above that it is simply a man who makes the engagement 
that has a mark put on him, whether he actually fights or not, and 
if he should fight without having hired himself out to do so, he 
will not be liable ; the man who is liable is not one who has fought 
with beasts but one who has hired himself out to do so. We may 
add here that we learn from old writers that persons who fight 
without pay by way of displaying their prowess are not liable, 
unless indeed they allow themselves to receive a distinction on the 
ground ; whoever does that does not, I should say, escape a mark 
of censure. If a man engages his services to hunt wild beasts, or 
to encounter, otherwise than in the arena, a wild beast which is a 
plague to the neighbourhood, he incurs no mark. In short where 
persons have fought with beasts without their object being to 
display their prowess, the pra3tor allows them to appear on their 
own behalf, but forbids them to do it on behalf of another. Still 
it is perfectly right that where any such persons are exercising a 
guardianship or a curatorship, they should be allowed to make 
applications on behalf of those who are under their charge. If any 
one is shown to have behaved in the way mentioned, he is not only 
debarred from making the motion prohibited on behalf of another 
person, but, in addition to that, he will be punished by a pecuniary 
fine in virtue of the extraordinary powers of the court to an 
amount assessed by the judge. 7. As was mentioned at the 
beginning of this title, the praetor divides those who have not 
full right to make motions into three classes, of which we now 
come to the third, comprising those persons to whom he does not 
deny the right of moving altogether, but only says that they are 
not to move for whomsoever they please ; thus treating them as 
less open to objection than those who are subject to a mark under 
the preceding heads. 8. The praetor's words are: — "whatever 
persons are forbidden by any statute, plebiscite, senatorial decree, 
edict, or imperial enactment to move otherwise than on behalf of 
particular kinds of persons, none such are to move in my court on 
behalf of any other than such persons as the law allows." These 
words comprehend all those remaining persons who are set down 
as of bad fame {infames) in the prsetor's edict; and all such are 
forbidden to move except in behalf of themselves and particular 



142 On Motions [book in 

classes of persons. 9. Then the praetor proceeds : — " wherever 
any one of all those persons mentioned above shall not have been 
restored to his original position {in integrum restitutus), such a 
one etc." The words " any one of all those persons mentioned " 
must be taken to apply only to a person who is one of those 
comprehended in the third clause in the Edict and is only allowed 
to move for particular classes of persons ; in a case within either 
of the previous clauses, an order for m integrum restitutio would 
hardly be granted. 10. But to what kind of restitution is the 
prsetor referring ? does he mean restitution by the Emperor or by 
the senate ? Pomponius asks this question, and he holds that the 
restitution meant is the one given by the Emperor, or the one given 
by the senate, without distinction. It has however been asked 
whether the prastor can make an order of restitution himself, and 
my opinion is that no such order made by a pra3tor should be 
observed, except where the praetor gives relief in virtue of his 
magisterial authority, as he commonly does on the ground of 
youth, or where a party has been deceived, and in other cases 
which we shall have to go through under the head of restitutio in 
integrum. This view is supported by the fact that if a man on 
whom judgment is passed in a case entailing infamy should get the 
judgment set aside by restitutio in integrum, he thereupon, in the 
opinion of Pomponius, is cleared of the infamy. 11. The praetor 
next adds : — " Such persons are not to move the court save on 
behalf of a parent, a patron or patroness, or the children or parents 
of a patron or patroness " : about which persons we have already 
spoken more fully under the heading "on citations." He also 
adds "or their own children or a brother, sister, wife, father-in-law, 
mother-in-law, son-in-law, daughter-in-law, stepfather, stepmother, 
stepson, stepdaughter, or ward of either sex, lunatic of either 
sex, 

Gaius {on the provincial Edict 1) or imbecile of either 
sex," — as such persons have curators appointed, as well as 
others, — 

Ulpianus {o7i the Edict 6) "where the guardianship 

or curatorship of any such person was given to the party who 
desires to move the court by a parent of the person under care or 
by a resolution of a majority of the guardians' or by a magistrate 
who had the requisite authority thereto." 1. When we speak of 
" affinity " we must not take this to mean such connexions by 

1 tutorum : but probal)ly it should be trihunorum, cf. Gaius i. 185. M. 



TIT. i] On Motions 143 

marriage as may have existed some time before but only such as are 
existing now. 2. Pomponius adds that the terms daughter-in-law, 
son-in-law, father-in-law and mother-in-law are meant to include 
remoter degrees of connexion such as are usually distinguished [in 
Latin] by the use of the prefix pro ; 3. and that in speaking of 
curators the praetor should have added the curators of dumb 
persons or of any others to whom curators are commonly given, 
that is, deaf persons, spendthrifts, and those under twenty-five, 

Paulus (on the Edict 5) as well as any to whom the 
praetor is in the practice of giving a curator on the ground of 
infirmity, 

Ulpianus (on the Edict 9) and such as are incapacitated 
by some incurable disease from managing their own aflairs. 

The same (oti the Edict 6) I should say however that any 
persons who are not discharging the office of their own free will 
but of necessity can make a motion without trangressing the Edict, 
even where they belong to the class of persons who [as it is laid 
down] can only move on their own behalf. Where a man is 
prohibited from acting as an advocate, if this means the court of 
the prohibiting magistrate, for such time as the latter continues 
magistrate, in accordance with the ordinary practice, I should say 
the person prohibited can afterwards practise before the magistrate 
who succeeds to the office. 

Gaius (on the provincial Edict 3) Any one whom the 
praetor forbids to move in his court he forbids absolutely, even 
though the opposite party should be willing to allow him to move. 

Papinianus (Questions 2) The Emperor Titus Antoninus 
laid down by rescript that where a man was debarred by interdict 
from practising as an advocate for a period of five years, there was 
nothing to prevent his making motions after the lapse of the five 
years for whomsoever he pleased. The Divine Hadrian too laid 
down that a man was qualified to make applications after his 
return from exile. No distinction is admitted in connexion with 
the nature of the ofience for which the party was forbidden to 
speak or exiled, otherwise a penal period which was definite as to 
duration might be further prolonged, in contradiction to the terms 
of the judgment. 

The same (Responsa 1) When a man is forbidden to move 
on behalf of others on some ground which does not entail infamy, 
and consequently does not deprive him of the right to move on 



144 On Motions [book iii 

behalf of others in every case, he is only disabled from moving on 
behalf of others in the province in which the magistrate who 
pronounced the prohibition was pneses ; the prohibition does not 
extend to any other province, though it should bear the same 
name. 

10 Paulus (Rules) Advocates of the Fiscus are at liberty to 
appear on their own behalf or on behalf of their sons or parents 
or of wards in whose guardianships they are acting, and even to 
appear against the Fiscus. As a matter of fact members of a 
municipal curia are forbidden to appear in a case against their 
own municipality, except such persons as are above mentioned. 

11 Tryphoninus (Disputations 5) A rescript of the present 
Emperor lays down that a guardian is not forbidden to be of 
counsel for his ward in a matter in which he has already acted as 
pleader against the ward's father. Not only so, but the guardian 
may plead the cause of his ward against the Fiscus, even though 
he previously acted for the Fiscus in the same matter against the 
ward's father. 1. As for the question what persons are included 
under the term infames, the answer to that will be set forth in the 
next title. 



II. 

On those who are marked with infamia. 

JuLiANUS (on the Edict 1) The pra3tor's words are: A man 
is marked with infamy who is dismissed from the army by way of 
disgrace, either by the commander or by the officer who has the 
power of pronouncing on the matter ; or a man who appears on 
the stage in exercise of the calling of a player, or in order to 
recite ; or carries on the trade of procurer ; or is pronounced in a 
criminal trial to have committed any act by way of false accusation 
or in collusion with the accused ; or has had judgment given 
against him in an action for theft, robbery, injuria, dolus malus or 
fraud, where he was a party to the action on his own behalf, or to 
have compromised any such action ; or has had judgment given 
against him in an action pro socio or an action on guardianship, 
mandatum or depositum, to which he was a party on his own 
account, such action not being an actio confraria ; or who, having 
a [married] woman under his potest as, did on the death of his 
son-in-law, and with knowledge of the fact of his death, before the 



TIT. ii] On those marked with infamia 145 

expiration of the time which it is customary for a widow to take to 
comijlete her mourning for her deceased husband, give such woman 
in marriage before she had completed the mourning; or who 
should, witli knowledge of the facts, take to wife a widow in the 
case above mentioned, without being ordered to do so by the man 
in whose potestas he was himself ; or who, having a man under his 
potestas, should allow him to take to wife a woman situated as 
above mentioned ; or who should, either on his own behalf, but not 
by order of the person exercising potestas over him, or on behalf 
of a man or a woman over whom he was exercising potestas, have 
two betrothals or two marriages on foot at the same time. 

Ulpianus {on the Edict 6) Whereas the praetor says " who 
shall be dismissed from the army," the word dismissed must be 
taken to refer to a soldier who wears the military boot, or any 
other soldier who is dismissed, including a centurion, or the 
prsefect of a cohort, or wing, or legion, or the tribune of either a 
cohort or legion. Pomponius says, in addition to the above, that 
the officer who is in command of the army, though he may display 
the badges of the consular office, if dismissed by the Emperor by 
way of disgrace, is branded with this mark ; accordingly, even if a 
general is dismissed when in command of an army \— if the Emperor 
dismisses him, and adds, as for the most part he does add, that he 
dismisses him by way of disgrace, — there need be no doubt that the 
general is also marked with infamy in pursuance of the pra3tor's 
Edict; but this is not the case where a successor is appointed 
without any displeasure on the part of the Emperor. 1. The word 
army {exercitus) does not mean one cohort, or one wing, but a 
large body of troops ; thus we may say that a man is in command 
of an army, when he is at the head of a legion or several legions, 
wdth the corresponding auxiliary troops which have been entrusted 
to him by the Emperor ; but here too, when a man is dismissed 
from any particular division, this must be treated as equivalent to 
dismissal from the army. 2. "Dismissed by way of disgrace." 
The reason why this was added is that there are several different 
kinds of dismissal. There is honourable dismissal which is accorded 
by the Emperor when a man has completed his time of service, or 
sooner, there is dismissal for sickness (causaria), which releases a 
man from the labour of military service on the ground of ill-health ; 
there is dismissal in disgrace. Dismissal in disgrace occurs when- 
ever the person in authority who dismisses adds expressly that he 

^ Del. notatur et, M. 

M. J. 10 



146 On those marked with infamia [book m 

does so by way of a disgrace; he is always bound to give the 
reason for which a soldier is dismissed. Even where a man is 
cashiered, that is where his badges of service are taken away from 
him, this makes him infamis, though the autliority should not go 
on to say that he is cashiered as a mark of disgrace. There is yet 
a fourth kind of dismissal, which occurs where a man has subjected 
himself to military service in order to avoid discharging some 
office ; but dismissal in this case does not affect a man's character, 
as has been very often laid down by rescript. 3. A soldier who is 
condemned under the lex Julia de adulteriis is so distinctly 
infamis that the very judgment itself releases him from the oath 
of service as a mark of disgrace. 4. When soldiers are dismissed 
in disgrace they are not at liberty to stay in the city or in any 
other place where the Emperor is. 5. The praetor says: "xV man 
is infamous who appears on the stage." The stage (sccena), ac- 
cording to Labeo's definition, is something which is set up for the 
purpose of performances in any place in which a man stands or 
moves about to exhibit himself to spectators, whether it be in 
public or in private or in a street, so long as it is some place to 
which people are admitted as spectators promiscuously. In fact 
all such as take part in contests for gain and all who appear on 
the stage for reward are declared by Pegasus and Nerva the son to 
be of bad repute. 

Gaius {o7i the provincial Edict 1) Where a man hires out 
his services by way of agreement to appear in the calling of a 
player, but does not actually appear, he is not marked ; the 
profession in question is not disgraceful to such a degree that the 
very intention should deserve to be punished. 

Ulpianus (on the Edict 6) Athletes, so Sabinus and 

Cassius laid down, do not exercise the calling of players at all ; 
they act as athletes only to display their prowess. In fact, as a 
general rule, everybody holds, and it seems a sound rule, that no 
members of an orchestra, or porch-athletes, or chariot-drivers, or 
washers-down of horses, or any other attendants of such persons as 
make it their business to act in the sacred contests, should be held 
to incur ignominy. 1. Umpires, whom the Greeks call "brabeutie, " 
do not practise the calling of players, as Celsus shows ; in fact, 
they do not act as players, they discharge a service ; and the post 
is one which at the present day is given by the Emperor as no small 
favour. 2. The prpctor says "who carries on the trade of pro- 
curer." A man practises the trade of procurer who keeps slaves 



TIT. n] Chi those marked with infamia 147 

who bring in a profit in this way ; and if a man makes a similar 
speculation with free women, he is in the same position. Moreover, 
whether he makes this his main business, or has some other kind 
of business as well, — for instance, suppose he is an innkeeper or a 
tavernkeeper, and has slaves of this kind who wait on travellers, 
and use the opportunity so afibrded to make gain in the way 
described, or he keeps baths, and, as is done in some provinces, 
he has slaves at the baths whom he hired to take charge of the 
clothes of customers, and these carry on the above practices at the 
bathing establishment, — in all these cases he will be liable to the 
penalties inflicted on procurers. 3. According to Pomponius, even 
where a man who is himself a slave makes this use of female slaves 
who are part of his jjeculmm, he will be marked with infamy after 
gaining his freedom. 4. A man who commits calumnia (taking 
proceedings in bad faith) is only marked if judgment is given 
against him thereupon, it is not enough that he should have been 
in fact guilty; and a prevaricator is in a similar position. A 
prevaricator is, as it were, a "varicator" (straddler), a man who 
betrays his own case and helps the other side ; the name, according 
to Labeo, is derived from varia certatio (varying contention), as a 
man who prevaricates has been standing on both sides, in short, he 
has stood on the opposite side to his own. 5. Again if a man 
suffers judgment or makes a compromise in an action for theft, 
robbery, injuria, or dolus malus to which he was a party on his 
own account, he incurs infamy in the same way, 

5 Paulus {on the Edict 5) as a man who comjwomises a 
charge is regarded as confessing it. 

6 Ulpianus {on the Edict 6) The word "theft" must be 
understood to include both furtum manifestum said furtum nee 
manifestum. 1. But if a man, after judgment against him in an 
action for theft, or any other action involving infamy, appeals, 
then, pending the appeal, he is not regarded as infamous, but if 
the whole period within which he can bring the aj^peal should be 
allowed to lapse, he is held infamous by relation back from the 
time of the original adverse judgment ; though, at the same time, 
if his appeal is rejected, I should say he is marked as from that 
day only, not from the original time. 2. If a defendant suffers 
adverse judgment as representing some one else, he is not branded 
with infamy; consequently any agent of mine, or person who 
volunteered to take up my case (defensor), or my guardian or 
curator or heir will not be marked with infamy on adverse 

10—2 



148 On those marlied with infamia [book hi 

judgment in an action for tiieft or any similar offence [committed 
by me], nor shall I myself, if my case was conducted all through 
by means of an agent. 3. The Edict proceeds — "or makes a 
compromise." Compromise must be taken to mean compromise 
for some pecuniary consideration, whatever the amount ; otherwise 
a man will be marked even where he induced the other party by 
earnest entreaty to abandon the action, and no account mil be 
taken of cases of forbearance; but this is inconsistent with humanity. 
Where a man compromises an action by the praetor's order on 
pecuniary terms, he is not marked. 4. Add that if a man, on an 
oath being tendered him, swears that he did no wrong, he will not 
be marked ; he has in a way established his innocence by oath. 
5. As to the reference to adverse judgment on mandatum, the 
language of the Edict puts a mark not only on the party who 
undertook the mandate, but on any one who fails to keep faith 
where the otiier relied on his doing so. For instance : I was 
surety for you, and had to pay; if I get judgment against you 
in an action on the mcmdatmn, it makes you infamous. 6. There 
is of course this to be added, that sometimes the heir himself 
suifers judgment on his own account, and so becomes infamous, 
viz. where lie acted dishonestly in connexion with a deposit or a 
mandate ; in respect of a guardianship or partnership the heir 
cannot suffer judgment on his own account, because an heir does 
not succeed to the position of guardian or partner, he only 
succeeds to the liability for debt contracted by the deceased. 
7. Adverse judgment in an actio contraria does not entail infamy ; 
and this is as it should be, as in such actions no question of bad 
faith is at issue, but the point ^ commonly decided by the court 
is a question of computation. 

Paulus {on the Edict 5) In actions founded on contract, 
even where they should involve infamy, and parties who suffer 
adverse judgment be marked, still one who makes a compromise 
is not marked. This is quite right, as a compromise is not so 
dishonourable in these cases as in those above mentioned. 

Ulpianus {on the Edict 6) The words occur " on the death 
of his son-in-law." The praetor very rightly adds " he being aware 
of the fiict of the death, " so as to prevent his ignorance being 
punished. As however the period of mourning admits no interval, 
it is right that it should, as it does, begin to run from the day of 
the husband's death even where the death is unknown to the 

1 Dele qui. M. 



TIT. ii] On those marked with infamia 149 

widow ; so that, if she only becomes aware of it after the expiration 
of the prescribed period, then, according to Labeo, she can put on 
mourning and lay it aside on the same day. 

9 Paulus {on the Edict 5) Men are not compelled to mourn 
for their deceased wives. There is no mourning for a betrothed. 

10 The same {on the Edict 8) It is in accordance with the 
present practice that a widow should get leave fi-om the Emperor 
to marry again within the prescribed period. 1. When a woman 
completes the period of mourning for her deceased husband, she 
incurs no censure for having been engaged in the meantime to 
marry again. 

11 Ulpianus {on the Edict 6) Mourning for children or 
parents is no impediment to marriage. 1. Even where the 
deceased husband was some one for whom, by established custom, 
a woman ought not to observe mourning, still the widow cannot be 
given in marriage before the expiration of the statutable time ; 
the prsetor looks at the day on which mourning for a deceased 
husband would terminate, and the object of making it a practice 
to complete the period is to avoid confusion of blood. 2. Pom- 
ponius holds that a woman who bears a child within the prescribed 
time may at once give herself in marriage, which, I should say, is 
sound. 3. It is not the practice, so Neratius says, to observe 
mourning for enemies, or for persons condemned for perduelUo 
(treason), or those who hang themselves, or lay violent hands on 
themselves from a bad conscience and not from weariness of life: 
still if a widow \ where the husband has died under any such 
circumstances, should give herself in marriage [within the period], 
she will be marked with infamy. 4. A mark is also set on the 
man who takes to wife such a widow, that is, if he knows the fact ; 
ignorance of law is not excused, but only ignorance of fact. A man 
who should make such a marriage by the order of one who has 
potestas over him is excused, and the mark is put on the person 
himself who suffers him to make the marriage. Both these rules 
are sound ; the party who complied deserves indulgence, and the 
one who allowed him to make the marriage may fitly receive a 
mark of ignominy. 

12 Paulus {on the Edict 5) When a man marries by the order 
of his father [under the circumstances mentioned], if he keeps his 

^ For si quis read or understand si qua. 



150 On those marhed with infamia [book ni 

wife after he is set free from his father's potestas, he is not on that 
account marked. 

13 Ulpianus (on the Edict 6) How then if the father did not 
give the son leave to marry, but ratified the marriage after it was 
made? suppose for instance he was unaware originally that the 
circumstances of the woman were such as described, but afterwards 
found it out : in this case he will not be marked, as the praetor 
looks at the time when the marriage took place. 1. Where a man 
contracts two betrothals on some one else's behalf, he is not 
marked, unless he concludes them on behalf of some man or 
woman whom he has under his potestas ; of course it must be held 
that a man who allows his son or daughter to contract a betrothal 
may be held to have in a way contracted it himself. 2. Where 
the praetor says "at the same time," we must not take this to 
mean the actual betrothals being contracted at the same time, 
but to apply equally where the periods to any extent coincide. 
3. Again if a woman is betrothed to one man and married to 
another she is punished by the rule given in the Edict. 4. And 
as it is the party's own act which entails the mark of infamy, it 
follows that, even where the woman with whom a man contracts 
marriage or betrothal is one whom he cannot marry legally, or 
cannot marry consistently with religious principle (fas), he will 
still be marked. 5. [The award of] a person made arbitrator by 
mutual compact does not lay a party under infamy, as such an 
award is not in every respect the same thing as a judgment. 

6. As far as the question of infamy is concerned, it makes a great 
deal of difference whether in the case before the court the judge 
made his decision after a regular hearing, or something was uttered 
independently, in the latter kind of case no infamy is inflicted. 

7. Where a penalty of undue severity is imposed beyond the terms 
of the statute, the character of the party is not affected ; this has 
been enacted, and also laid down by responsum. Suppose for 
instance the prseses sliould relegate a man who ought only to have 
been mulcted in a part of his property, the proper view^ to take is 
that by suffering so severe a sentence the accused person has 
compounded for the retention of his character, and accordingly he 
is not infamous. x\t the same time, if, in a case oi fiirtmn iiec 
manifestum, the judge makes an order for payment of four times 
the value, then the extra penalty laid on the defendant is no doubt 
a grievance, as, where the furtmn is not tnaiiifcstum, he ought to 
have been sued for the double value only ; still this fact does not 



TIT. n] On those marked with infamia 161 

prevent the loss of his character; whereas, if the penalty which 
the judge inflicted in excess had not been of a pecuniary kind, the 
party would be held to have compounded. 8. A charge of 
stellionatus imposes infamy on the party on whom judgment is 
passed, though this is not a subject for a 2)uhlmim judicium. 

14 Paulus (on the Edict 5) Where an owner defends a noxal 
action brought in respect of his slave, and after that emancipates 
the same slave by testament, and appoints him heir, if the latter 
should then himself sufier judgment in the action, he does not 
become infamous, because he does not incur judgment on his own 
account, as he was not a party to the original joinder of issue. 

15 Ulpianus {on the Edict 8) A woman is marked who gets 
an order for possession on behalf of an alleged unborn child on 
false pretences {per calumniam), that is, by declaring that she is 
with child, 

16 Paulus (on the Edict 8) when in reality she is not, or is 
with child by a man who was not her husband ; 

17 Ulpianus {on the Edict 8) as a woman who deceives the 
praetor ought to be punished. But a woman who acts as above 
mentioned is only marked where she does so without being at the 
time subject to })otestas. 

18 Gaius {on the 2^rovincial Edict 3) Where a woman was 
under a delusion in the matter, she cannot be held to have been 
in possession on false pretences, 

19 Ulpianus {on the Edict 8) and no Avoman is marked save 
one as to whom it is judicially declared that she got the order for 
possession by means of false pretences. The law will apply equally 
to a father who procures by false pretences that a daughter whom 
he had under his jwtestas should get an order for possession on 
behalf of an alleged unborn child. 

20 Papinianus {Resjjonsa 1) A man to whom these words are 
addressed in the judgment of the prseses of a province — "You 
seem to have used a cunning contrivance to set some one on to 
bring an accusation" is rather put to shame than, as far as appears, 
laid under ignominy ; the fact is a person who incites another does 
not positively act in the way of giving him a mandate. 

21 Paulus {Responsa 2) Lucius Titius preferred a charge 
against Gaius Seius alleging that he had suffered wrong at his 



152 071 those marked with infamia [book ni 

handg, and read a written testimony in support of his case before 
the Prfefectus Prsetorio. The prsefect did not put any faith in the 
deposition, and declared that Lucius Titius had suflFered no wrong 
at the hands of Gains Seius. My question is this : — are the 
witnesses whose testimony was rejected classed with infamous 
persons on the ground of false testimony? Paulus's answer was 
that no ground! was stated which would make it right that those 
about whom the question was asked should be classed among 
infamous persons, seeing that it was not right that where a judg- 
ment, whether just or not, is given in favour of one person, another 
person should be prejudiced by it. 

22 Mabcellus (publica 2) The infliction of a beating does 
not entail infamy, what does is the ground on which the party 
incurred the punishment, assuming that the ground in question is 
one which imposes infamy on a man who is condemned to it. 
A similar rule is laid down as to other kinds of punishment. 

23 Ulpianus (on the Edict 8) Mourning ought to be observed 
for parents and children of both sexes, and other agnates and 
cognates as well, agreeably to the dictates of family afiection and 
to the extent to which any particular person is ready to assume it ; 
but a person who does not complete the regidar period of mourning 
in such cases is not marked with infamy. 

24 The same {on the Edict 6) The Emperor Severus laid down 
by rescript that the character of a woman in respect of infamia 
was none the worse for the fact that her owner made [immoral] 
gain by her means when she was a slave. 

25 Papinianus (Questions 2) It has been held right that even 
a disinherited son should observe mourning in memory of his 
father, and a similar rule applies in the case of a mother whose 
inheritance does not pass to her son. 1. When a man is killed in 
battle he must be mourned for, even though his body should not 
be found. 



TIT. ni] On "Procurators'' and "Defensors'' 153 



III. 

On "procurators" and "defensors." 
(Agents, whether appointed or voluntary.) 

Ulpianus {on the Edict 9) A procurator is a man who 
manages another person's affairs in pursuance of a mandate from 
his principal. 1. A procurator may be appointed for affairs in 
general or for one affair in particular, and either at an interview 
or by a messenger or by letter ; though some hold, so Pomponius 
says (b. 24), that a man is not a procurator where he undertakes 
a mandate with respect to a single affair, just as a man is not 
called a procurator in the strict sense who undertakes to carry 
a thing or a letter or a message. But the better opinion is that 
a man is a procurator even when he is appointed for a single 
affair. 2. The emplojTuent of procurators is absolutely necessary, 
in order that persons who are unwilling or unable to look after 
their affairs themselves may be able to bring or defend actions by 
the intervention of others. 3. A man may be appointed procurator 
even in his absence, 

Paulus {on the Edict 8) provided always that the person 
who is understood to be appointed is ascertained, and he himself 
ratifies the appointment. 1. A lunatic must not be deemed in the 
same position as an absent person, as he is devoid of intelligent 
will, so that he is unable to ratify. 

Ulpianus {on the Edict 9) A procurator can also be 
appointed for a future trial, or for a future day, or on a condition, 
or until a particular day, 

Paulus {on the Edict 8) or for an indefinite time. 

Ulpianus {on the Edict 7) A man is said to be present 
even when he is in the pleasure-grounds, 

Paulus {on the Edict 6) or in the/or?«m, or in the city, or 
somewhere within the space over which buildings extend from the 
city without a break : 

Ulpianus {on the Edict 7) so that My^ procurator is held 
to be the agent of one who is present. 

The same {on the Edict 8) A fiUusfamllias can appoint 
a procurator for bringing an action, where the action is one whicli 
he could have brought himself; and that not only when he has 



154 On "Procurators'' and ''Defensors'' [book in 

east?'ense j^eculium ; any JilmsfamiUas can do it. For example, if 
he has suflPered an injuria he can appoint a procurator to bring 
an actio iujnrlarum, supposing, that is, that his father is not 
present and no jjrocurator for his father chooses to take the 
proceedings, and such appointment of a procurator by the Jilius- 
familias himself Avill be valid. Julianus goes further ; if, he says, 
a Jiliusfamilias has himself a son who is subject to the same 
potestas as he is, and an inju7'ia is done to him in the person of 
that son, the jmterfamilias not being present, he, i\\e Jiliusfamilias 
first mentioned, can appoint a procurator to get satisfaction for 
the iyijuria inflicted on the grandson of the absent man. A Jilius- 
familias can also ap[>oint a procurator to defend an action. We 
may add that a Jiliafamilias can equally appoint a procurator to 
bring an action for injuria ; for, as for the fact that, in the case of 
an action to recover dos, the daughter joins with her father in 
appointing a j^rocurator, this, according to Valerius Severus, is 
quite unnecessary, it being enough that the father should appoint 
at the daughter's request. I should say however that if the father 
should chance to be absent, or to be a man of doubtful moral 
character, in both which cases the practice is for the daughter to 
be allowed to bring the action herself, it is open to her to appoint 
a pt^'ocurator. 1. It is not the practice that a man should be 
appointed procurator against his will ; and we must understand 
the appointment to be against his will not only where he objects, 
but even where it is not shown that he consents. 2. Veteran 
soldiers can be appointed procurators ; but soldiers on service 
cannot be appointed, even with the consent of the other party to 
the action, unless by some accident the matter was overlooked at 
the time of joinder of issue : and excepting always the case of 
a soldier being made procurator on his own behalf, or undertaking 
to i)rosecute or defend an action in which all the men of his 
detachment {iiumerus) are interested alike, in which case he is 
allowed to be procurator. 3. " Where a man has been appointed 
procurator for defending a case on whose behalf the principal has 
Mith his consent furnished an undertaking that the order shall be 
complied with (judicatum solvi), then," such are the praetor's 
words, " I will compel him to undertake the case." However, on 
suflScient cause shown, he ought not to be compelled ; suppose for 
instance a deadly quarrel arises in the meantime between the 
procurator himself and the principal ; in such a case, so Julianus 
tells us, the action cannot be allowed against the procurator. The 
same result ensues if some position of rank should be acquired by 



TIT. ni] On "Procurators" and "Defensors'' 155 

i]\Q 2^^ocurator, or he should have to be absent on government 
service, 

9 Gaius {on the provhicial Edict 3) or he can show ill-health 
or urgent necessity for going to a distance ; 

10 Ulpianus (on the Edict 8) or he is busy about an in- 
heritance which has come to him ; or there is any other sufficient 
excuse. Besides all this, the procurator ought not to be forced 
[to take up the case] when his principal is present, 

11 Paulus (on the Edict 8) provided, that is, the principal 
himself can be compelled to do so. 

12 Gaius (on the 2)rovincicd Edict 3) Other grounds too it is 
said are sometimes sufficient for compelling a procurator to take 
joinder of issue ; suppose, for example, the principal is absent, and 
the plaintiff maintains that lapse of time would cause the matter 
at stake to be lost. 

13 Ulpianus (on the Edict 8) However, such grounds ought 
neither to be allowed without discrimination nor yet peremptorily 
set aside, the matter should be ordered by the praetor after he has 
heard the facts. 

14 Paulus (on the Edict 8) If, after the appointment of a 
procurator, deadly enmity arose [between him and his iDrincipal], 
the procurator must not be compelled to take issue, and he does 
not become liable under the stipulation on the ground of default 
in defending the case, as the circumstances are not the same. 

15 Ulpianus (on the Edict 8) If the principal dies before 
joinder of issue, having already given an assurance on stipulation 
on behalf of his ^rocwrato?* that the judgment shall be obeyed, the 
procurator can be compelled to undertake the case, but only 
where the principal gave tlie assurance with the knowledge of the 
procurator and without the latter making any objection. Should 
the fact be othermse, it is thoroughly contrary to legal principle 
that the procurator sliould be liable where he had no knowledge ; 
still an action can be brought on the words of the stipulation on 
the ground of default in defending the action. 1. Where a man 
is appointed procurator for an action communi dividundo, he 
must be held to be appointed to act both as plaintiff and defendant, 
and a double assurance must be given. 

16 Paulus (on the Edict 8) Up to joinder of issue the principal 
is free either to appoint another j)rocurator in the place of the 
first, or to take joinder of issue himself. 



156 On "Procurators" and "Defensors'' [book iii 

17 Ulpianus {on the Edict 9) But after joinder of issue a 
defendant who has appointed a procurator may cliange his 2>^o- 
cnrator or make himself party to the case as long as the procurator 
is living, even if he is living in the city ; but this only on cause 
shown. 1. This permission is given not only to the party himself 
who appointed the procurator, but to his heir and any other 
successor. 2. When the application is heard the essential points 
taken into account are not merely those mentioned above as to the 
law not compelling a procurator to undertake the case, but in 
addition to them the question of his age, 

18 MoDESTiNus {Pandects 10) and any claim to relief founded 
on religious grounds. 

19 Ulpianus {on the Edict 9) Again, if the procurator is of 
doubtful moral character, or is in prison, or in the power of enemies 
or brigands, 

20 Paulus {on the Edict 8) or is detained by a criminal or 
civil trial, or by ill-health, or urgent private affairs, 

21 Gaius {on the provincial Edict 3) or is in exile, or is keeping 
out of the way, or he has a misunderstanding with the principal 
which arose subsequently to the appointment, 

22 Paulus {on the Edict 8) or he comes to be connected with 
the other party by marriage, or succeeds to him as heir, 

23 Ulpianus {o7i the Edict 9) or he is hindered by a long 
absence in distant parts, or by any other ground of the same kind, 

24 Paulus {on the Edict 8) in all such cases the procurator 
ought to be replaced by another person, even if he makes the 
application himself. 

25 Ulpianus {on the Edict 9) All these rules have to be 
observed not only on the side of the defendant, but also on that of 
the plaintiff himself If however the other party, or the procurator 
himself, should declare that the principal is telling a lie about the 
matter, this question must be settled by the prjetor. A man is not 
to be tolerated as py-ocurator who makes an independent claim 
of his own to be procurator, as he throws doubt on his own fitness 
by the very fact that he is endeavouring to thrust his services 
on some one who docs not want them; unless indeed his object 
was not so much to carry on the procuratorship for its own sake as 
to clear his character in the face of unfavourable comment. And 
he will have a right to a hearing if he should declare that he 



TIT. in] On "Procurators'' and "Defensors" 157 

is quite ready to be relieved of the office, provided this can be 
done without injury to his reputation ; in any case, so far as he is 
endeavouring to clear his own honour, every allowance must be 
made for him. No doubt if what he alleges is that he has been 
made procurator on his own behalf, and he can show this, he ought 
not to be debarred from prosecuting his own cause. Add that if 
he wishes to avail himself of some right of retention, it will be 
difficult to take the conduct of the case away from him, 

26 Paulus {on the Edict 8) unless the principal is willing to 
pay him what is owed him. 

27 Ulpianus {on the Edict 9) On the hearing of tlie case 
another point of importance will be this : — it is only allowable that 
the conduct of tlie trial should be taken away from the procurator 
where the party is ready to take away the whole of the case ; if he 
desires to take away a certain portion and leave another portion in 
the procurator's hands, this is a piece of inconsistency to which 
the latter may properly decline to submit. All this is on the 
assumption that the procurator brought the action on the mandate 
of the principal. But if no mandate was given, then, seeing that 
the procurator brought nothing to trial, and you [the principal] 
did not ratify the proceedings, anything done without your consent 
cannot prejudge your case, so that you do not require to have the 
case transferred into your own name, [in fact you had better decline 
such transfer,] in order to avoid the burden of another man's acts. 
Applications such as mentioned for dismissal of a j^^'ocurator must 
be made to the prastor. 1. If a transfer of the proceedings is 
made on the part of the plaintiff, it is held that the stipulation 
entered into by the defendant, viz. that he will comply with the 
judgment, will be binding ; this is approved of by Neratius and 
Julianus, and such is the present practice; assuming, that is, 
that the undertaking was given to the principal. Indeed, even 
if it was the procurator to whom the undertaking by stipulation 
was given, and then the principal is made party to the suit 
in his place, the better opinion is that the stipulation can be 
sued upon, and that the right of action upon it is transferred 
fi'om the procurator to the principal. Again, even if a procurator 
should be made party to the suit in the place of the principal, 
or in the place of a previous procurator^ there is no doubt, 
according to Marcellus, that the stipulation can be sued upon, and 
this is perfectly sound. In fact, if the right of action on the 
stipulation should have vested in the procurator, nevertheless an 



158 (M ''Procurators'' and "Defensors'' [book iii 

cvctio utilis on the stipulation must be allowed to the principal, the 
direct right of action being taken away altogether. 

28 The same (disjmtations 1) If my 2^rocurator has had 
security given him that the judgment will be obeyed, I have an 
emtio utilis on the stipulation, just as an actio utilis on the 
judgment is conceded to me. Indeed, even where my jwocurator 
has sued on the stipulation without my consent, still this will not 
prevent an action on the stipulation being granted me. The 
consequence of this is that if my procurator sues on the stipulation, 
he can be barred by an exceptio, just as he may where he sues on 
the judgment, assuming that he was not appointed procurator 
on his own behalf, or with a view to his bringing the very action. 
But, to take the converse case, if my procurator [is defendant and] 
gives an undertaking that the judgment will be complied with, 
no action on the stipulation will be allowed against me. And if 
my defensor [voluntary agent for the defence] gives the under- 
taking, the action on stipulation is not allowed against me, because 
I cannot be sued on the judgment itself. 

29 The same [on the Edict 9) If the plaintiff would rather sue 
the principal than the person who is procurator on his own behalf, 
the rule is that he has a right to do so. 

30 Paulus {Sentences 1) A procurator for a plaintiff, [i.e. one] 
who was not made procurator on his own behalf, may claim, in 
order to meet the expense which he incurred in the trial, that 
he should be satisfied out of the money recovered in the action, if 
the principal in the case is not in a jDOsition to pay. 

31 Ulpianus {on the Edict 9) If a man, after judgment is 
given against him in a suit which he defended as procurator, 
becomes heir to his principal, he cannot disclaim his liability to an 
action on the judgment. This is the rule where he is sole heir. 
If he is co-heir along with others, and he pays the whole judgment 
debt, then, if it was expressly included in his original mandate 
of agency that he should pay, he will have a good action on the 
mandate against his co-heirs; if it was not part of his mandate, 
he has an action on uegotia gesta : and this last is equally the case 
if the procurator does not become heir at all, but still pays. 
1. There is no law against several procurators being appointed for 
one trial on behalf of several persons respectively. 2. Julianus 
says that where a man appoints two different procurator's at 



TIT. ni] On ''Procurators'' and ''Defensors'' 159 

different times, hy appointing the second he must be held to have 
revoked his appointment of the first. 

Paulus {on the Edict 8) Where a number of different 
persons are appointed prociirators at the same time, each for the 
whole matter, the one who proceeds first will be in the better 
position, so that one who comes later will not be procurator as to 
anything about which another has got before him and is suing 
already. 

Ulpianus {on the Edict 9) It is said that even a slave or 
ajiliusfamilias can have a. procurator. As far as thejilmsfcmdlias 
is concerned, this is true ; as to the slave, I should demur. 
It is allowed that a person should carry on a slave's transactions 
for him where they depend on his peculium, and so far be his 
pQ'Ocurator, and this is Labeo's opinion, but it is not allowed that 
he should bring an action. 1. There is no doubt, however, that 
a man who is a party to proceedings about his status can have 
a procurator not only in connexion with the management of his 
affairs, but for such judicial proceedings as may be taken either on 
his behalf or against him, whether he is living as a slave or as 
a free man\ Conversely too it is clear that he can be appointed 
procurator for another. 2. It is a matter of public policy that 
absent persons should be defended by some one or other ; even in 
capital trials defence is allowed on behalf of an accused person. 
Accordingly, wherever judgment could legally be pronounced 
against a man in his absence, it is just that any one shoidd have 
a hearing who chooses to speak for him and argue in favour of his 
innocence, and it is the regular practice to allow it ; indeed this is 
shown by a rescript of the reigning Emperor. 3. The pra3tor 
says: — "Where a man requests that an action should be allowed 
him on behalf of another, he must defend his principal to the 
satisfaction of an impartial arbitrator ; and he ought, subject to 
similar arbitration, to give security- to the person against whom 
he brings an action on behalf of another that the person concerned 
as principal hi the matter will ratify what is done." 4. It was 
thought just by the praetor that where a man takes proceedings as 
procurator on behalf of another, he should also [be ready to] 
undertake the same person s defence. 5. If a man takes proceedings 
as a procurator on his own behalf, the rule still is that he is bound 

1 Text confused and probably an interpolation : the above appears to be tlie 
meaning. 

^ For quo read guocum alteritts. Cf. M. 



160 On "Procurators" and "Defensors'' [book ni 

to defend [the person who appointed him], except where that 
pereon had no choice as to appointing him. 

34 Gaius {on the provincial Edict 3) Where a man sues in the 
character of jyroairator on his own behalf, for instance, where he 
is purchaser of an inheritance, will he be bound conversely to 
defend his vendor? The rule is that if the transaction was 
concluded in good faith, and with no intention to prejudice persons 
who might desire to sue the vendor on their part, he will not be 
obliged to defend him. 

35 ULPL4NUS {o7i the Edict 9) However, jirocurators of the 
following classes will be bound to defend their principals, being 
persons who are at liberty to sue without a mandate, viz. children, 
though subject to 2^otestas, also parents, brothers, persons con- 
nected by marriage and freedmen. 1. A patron can proceed 
against his freedman for ingratitude by a jjrocurator and the 
freedman can meet the charge by a iwocurator. 2. Not only 
where what the procurator asks for is an action properly so called, 
but also where it is a 2)rwjudicium (preliminary inquiry) or an 
interdict, or where he applies for an order to give an undertaking 
for payment of legacies or for security against damnum infectum, 
will he be bound to defend his principal in his absence, before any 
competent court, [that is,] and in the same province. Of course 
it would be oppressive that he should be called upon, in order to 
defend him, to leave Rome and go to a province ^ or the converse, 
or to go from one province to another. 3. To defend implies 
doing what the principal himself would do in reference to the case, 
and giving a sufficient guarantee, and the position of the procurator 
ought not to be made more burdensome than that of the principal 
would be, except in the matter of giving security. Setting aside 
the giving security, it is clear that the jy't'ocivrator is held to defend 
only where he proceeds to joinder of issue. Hence the question is 
raised in Julianus's treatise, whether he is compellable to join issue, 
or it is enough that, the case not being defended, an action can be 
brought on the stipulation. Julianus says {Dig. 3) that he is 
compellable to join issue, unless, after inquiry, he should decline 
to proceed at all, or should on sufficient grounds be removed. 
A j)rocurator is regarded as defending a case even where he allows 
the other party to take possession, where the party has applied 
for an undertaking against damnum Infectum or for the payment 
of legacies, 

1 For procincia read provinciarn. Cf. M. 



TIT. in] On "Procurators'' and ''Defensors' 161 

36 Paulus {on the Edict 8) or in a case of operis novi 
nuntiatio. And even where he allows a slave to be taken off by 
the plaintiff in a noxal action, he is held to defend the case ; 
provided in all these cases he gives an undertaking that the 
principal will ratify. 

37 Ulpianus {on the Edict 9) But he must defend his principal 
in respect of all actions, even those which are not allowed against 
the heir. 1. Accordingly the question has arisen whether, sup- 
posing the other side brings several actions, and there are different 
defensors forthcoming (voluntary agents for the defence) who are 
ready to undertake the respective cases, the party is properly 
defended ; Julianus holds that he is : and such, according to 
Pomponius, is the present practice. 

38 The same {on the Edict 40) Still we must not go so far as 
to hold that if an action is brought for ten thousand, and there are 
two defensors forthcoming who are ready to defend for five 
thousand each, they ought to be allowed to appear. 

39 The same {on the Edict 9) A procurator is not bound to 
defend merely in actions and interdicts and by entering into 
stipulations, but in connexion with interrogatories too, so that, 
when examined in the magistrate's court, he may answer in all 
cases where the principal would have had to answer himself He 
will therefore be bound to answer as to whether an heir is absent ; 
and, whether he answers or holds his tongue, he may be liable. 
1. A man who brings an action of any kind whatever on another's 
behalf is bound to give an undertaking that the party concerned 
will ratify what is done. Sometimes, indeed, even where a pro- 
curator takes proceedings on his own behalf, he will still be bound 
to give an undertaking that his principal will ratify, so Pomponius 
tells us (6. 24). For example, take this case. The defendant tenders 
in return an oath to the procurator^, and the latter swears that 
something or other is due to an absent principal ; hereupon the 
action which he brings is brought as if he were principal, because 
of his own oath ; (as in fact this action could not possibly be open 
to the real principal;) still the jyrocurator must give an undertaking 
for ratification. Again, suppose an assurance is given to the 
procurator in the form of co7istitritum, and he brings an action in 
pursuance of it, it is beyond question that this is a proper case 
for giving an undertaking for ratification, and this we read in 

^ After rettulit ins. adversarius, et is. M. 
M. J. 11 



162 On " Procw^ators'' and "Defensors'' [book hi 

Pomponius. 2. In Julianus we j&nd this question : — is the pi'O- 
Gurator bound to guarantee that the principal alone will ratify, or 
that the other creditors will do so as well? to which what that 
author says is that the undertaking need only refer to the principal, 
and that the expression '' the person concerned in the matter " 
does not comprehend the creditors, seeing that the principal 
himself was not bound to give such an undertaking. 3. If a father 
sues to recover dos [on behalf of his daughter], he is bound to give 
an undertaking that the daughter will ratify ; moreover he is 
bound to defend an action against her ; Marcellus himself has this. 

4. If a father brings an action for injuria on behalf of his son, 
then, as there are two actions allowed, one by the father and 
one by the son, there is no undertaking given for ratification. 

5. If a procurator contests a question of status with anyone, 
whether it is a case where someone who passes for a slave institutes 
proceedings against him to establish his liberty, or he himself 
brings an action to establish the servitude of someone who passes 
for free, in both cases he is bound to give an undertaking that the 
principal will ratify the matter. This appears by the words of 
the Edict, so that the jirocurator is treated as if he were plaintiff, 
on whichever side he contends. 6. There is one case in which 
a man has to give an undertaking both for ratification and for the 
judgment being obeyed, in respect of one and the same action. 
The case is this. Application is made for a hearing with a view 
to a restitutio in integrum on the alleged ground that undue 
advantage has been taken of some one under twenty-five in the 
matter of a sale, and on the other side the party is represented by 
a procurator ; here the procurator is bound to give an undertaking 
first, that the principal will ratify the matter,— because otherwise 
the principal might come forward later and desire to raise some 
claim, — and, secondly, that the judgment will be obeyed, so that 
if eventually something has to be given to the minor in consequence 
of his getting the restitutio in integrum, it may be accordingly 
given. All this may be read in Pomponius {on the Edict 25). 
7. This writer also says that if an application should be made to 
remove a guardian, any one who undertakes the case for the 
guardian ought also to give security for ratification, lest his 
principal should come forward and claim to set aside what has 
been done. However, the case could hardly arise of a guardian 
being complained of through a procurator, as it is a question 
involving infamy ; unless it should appear that the guardian gave 
instructions to the particular procurator expressly, or else the 



TIT. Ill] On ''Procurators'' and "Defensors'' 163 

prpetor were proceeding to hear the case in the guardian's absence, 
and so treated it as undefended. 

iO The same {on the Edict 9) Pomponius tells us that it is 
not every kind of proceeding that a man can institute by means of 
a proGurator ; for example, a procurator cannot ask for an interdict 
to enable him to take off with him children whom he alleges to be 
imder the potcstas of some absent person, except, as Julianus says, 
upon due cause shown, in other words, unless he has been specially 
instructed to do it, and the father is prevented by ill-health or 
some other sufficient reason. 1. If a procurator stipulates in 
respect of damnum infectum or legacies, he is bound to give an 
undertaking for ratification. 2. Moreover, a man who is sued as 
defensor in an action in rem is bound to give an undertaking for 
ratification in addition to the regular guarantee that the order 
will be obeyed. Else what is to be done, if the result of the trial 
should be that the property is declared to be mine [the plaintiff's], 
and then the person for whom the defensor acted comes forward 
and claims to recover the land? will he not be treated as if he had 
not ratified the decision ? Of course if there had been a regular 
procurator, or the principal had personally conducted his own case 
and lost it, then, if he sued me to recover the property, he would 
be barred by an exceptio of res judicata, and this is said by 
Julianus {Dig. 50) ; as where the judge declares that the property 
belongs to me he declares at the same time that it does not belong 
to the other. 3. A guarantee of ratification is required to be 
given by a procurator before litis contestatio : the rule is that 
when issue is once joined he cannot be compelled to give the 
undertaking. 4. But in the case of those persons who are not 
required to have a mandate, the proper rule is that, if it should be 
clear that they are taking proceedings against the will of those on 
whose behalf they profess to act, they must be refused a hearing. 
Accordingly what is required is not that they should have the 
consent or the instructions [of their alleged principals], but that 
it shall not be shown that they are acting against such alleged 
principals' wishes, even though they should offer to give an under- 
taking for ratification. 

41 Paulus {on the Edict 9) Women are sometimes allowed 
to sue on behalf of parents, on due cause shown, for instance 
where the parents are prevented by illness or old age, and have no 
one to act on their behalf. 

42 The same {on the Edict 8) Although a procurator cannot 

11—2 



164 On "Procurators'' and " Def elisors'' [book in 

be appointed in a popular action, still it is very reasonably held 
that, where a man is bringing an action about a public right of way 
and would suffer some private loss or damage by being precluded 
from bringing it, he can appoint a procurator as though it were 
a private action. Much more may a procurator be appointed to 
bring an action for violation of a sepulchre where the principal is 
a person who has the requisite concern in the matter. 1. A jwo- 
curator may be appointed to bring an action for injuria under 
the lex Cornelia ; it is true this action is employed with a view 
to the public advantage, still it is a private action. 2. The 
obligational relation which exists for the most part between a 
principal and procurator is one which gives rise to an action on 
mandatum. However in some cases no obligation founded on 
mandatum is contracted ; one such case occurs where people 
make some one procurator on his own behalf [sc. as defendant], 
and promise thereupon that the decree shall be obeyed; if they 
pay anything in pursuance of this promise, they cannot sue the 
procurator on a mandatum, but as vendor, assuming, say, that it 
is a case of sale of an iidieritance ; or on the ground of some 
original mandatum, as is the case where a surety appoints as 
procurator the principal debtor. 3. When an inheritance has 
been handed over to any one in pursuance of the Seuatusconsultum 
Trebellianum, he can lawfully appoint the heir ^^rocwrator. 
4. Similarly a creditor can lawfully appoint jwocurator in the 
Servian action the [debtor himself who is] owner of the property 
pledged for the debt. 5. Add to this that if a constitiitum has been 
given to one out of several co-creditors, and he appoints another 
of the number procurator to sue on the constitutum, it cannot be 
said that this is not a valid appointment. Again, where there are 
two co-promisors, one may appoint the other procurator to defend 
an action. 6. If there are several coheirs and an action /amilice 
erciscundce or communi dividundo is brought, it must not be 
allowed that different principals should appoint tlie same pro- 
curator, because, if it were, it would be impossible to arrange 
the whole scheme connected with vesting orders and decrees for 
payment; no doubt such an appointment must be allowed where 
one coheir dies and leaves several coheirs who succeed him. 7- If 
the defendant to an action skulks, after litis contestatio, his sureties 
can only be held to defend his case where one of the number 
defends him in respect of the whole case, or else all or several^ 
appoint one of the number to take over the case. 
^ For qui read quidatn. Cf. M. 



TIT. Ill] On " Frocm-ators'' and "Defensors" 165 

The same (on the Edict 9) A deaf or dumb person is not 
precluded from appointing a 2^^'ocurator in any way in which it 
can be done; perhaps such persons might be appointed for a 
similar office themselves, not, that is, for taking proceedings, but 
for transacting business. 1. When the question arises whether 
any particular person is at liberty to employ a procurator, the 
point to consider is whether he is precluded from appointing one, 
as this is a prohibitive Edict. 2. In popular actions, where a man 
takes proceedings merely as one of the public, he is not compellable 
to undertake the defence like a procurator. 3. If a man applies 
for a curator to be appointed to some one who is present, his 
application will not be entertained, unless the minor consents; 
but if the minor is absent, the applicant will have to give security ^ 
that he will ratify. 4. Where a jyrocurator declines to act in 
defence, the penalty is that he is not allowed to sue. 5. If 
a procurator brings an action, and there is present a slave of the 
absent principal, then, according to Atilicinus, the undertaking 
ought to be given to the slave and not to the jjrocurator. 
6. Where a man is not compelled to defend some one who is absent, 
nevertheless, if he has given security that the decree shall be 
obeyed, in pursuance of his intention to defend him, he must be 
compelled^ to undertake the case, because otherwise he would 
be deceiving the person to whom he gave the security, as persons 
who are not compelled [originally] to defend a case are compelled 
after they have given the above security. Labeo holds that 
allowance may be made on special grounds, and that the rule is 
that, if the plaintiff is put to a disadvantage by the lapse of time, 
the other ought to be compelled to undertake the case ; but where 
some connexion by marriage is broken off in the meantime, or the 
two men have quarrelled, or the property of the absent man has 
come to be taken possession of, 

Ulpianus {Disputations 7) or he is going to be at a great 
distance, or any other lawful ground occurs, 

Paulus {or the Edict 9) he [the other] ought not to be 
compelled. Sabinus however holds that it is no business of the 
Praetor to require the party in question to undertake the defence, 
but that an action ex stijndatu can be brought on the ground 
that the case is not defended, and if, on the other hand, he has 
lawful grounds for declining to join issue in the action, his sureties 
are not liable, because no impartial arbitrator would decide that 
^ For dare read satisdare. Cf. M. ^ Del. procuratorem. M. 



166 On ''Procurators'' and ''Defensors" [book hi 

a man ought to be compelled to defend a case where he had a 
lawful excuse. Even where the party gave no security, but he 
was trusted on his simple promise on stipulation, the rule is the 
same. 1. Any persons who take proceedings in a public matter, 
under such circumstances that they are protecting some interest 
of their own as well, are allowed to appoint a procurator on cause 
shown, and any one else who takes proceedings after that can be 
barred by an exceptio. 2. If an opcris novi nuntiatio (notice of 
novel structure) has been served on a procurator and he resorts 
to the Interdict which says that " no force is to be used with him 
in respect of his building,' then, according to Julianus, he is in the 
position of a defensor, and is not required to give security tliat 
his principal will ratify, and if he should give such security, 
I cannot see, says Julianus, in what event the undertaking could 
be sued upon. 

46 Gaius {on the provincial Edict 3) Where a man joins issue 
on his own behalf with a plaintiflP, if he should thereafter wish to 
appoint a procui'ator, so that the plaintiff might accept the latter 
as defendant in his place, his application ought to be heard, and 
he ought to furnish security in proper form on^ the procurator's 
behalf that the judgment will be obeyed. 1. A man who defends 
some one on whose behalf he does not sue is at liberty to confine 
his defence to some one particular matter. 2. A man who takes 
up the defence of another is compelled to give security ; as no one 
is regarded as an adequate defensor in another man's case without 
giving security. 3. It is asked further, where a defensor under- 
takes the case, and the plaintiff gets an order for restitution in 
integrum, whether the defetisor will be compellable to undertake 
to defend the renewed case ; but on the whole it is held that he 
will. 4. A procurator is bound, as in connexion with the general 
management of business on behalf of a principal, so in connexion 
with the bringing or defending of actions as well, to account for 
everything in good faith ; hence whenever he acquires anything 
by means of an action, whether he does so directly in discharge of 
the very claim he made in the action, or indirectly as the result 
of it, he is compellable to hand it over by an action on the 
mandatum, so that, in fact, if, owing to mistake or illegality on 
the j)art of the judge, he should get what was not due, still he 
must give up that too. 5. Again, in the converse case whatever 
the procurator pays in pursuance of a judgment, he ought to 

^ After pro ins. eo. Cf. M. 



TIT. ni] On "Procurators'' and "Defensors'' 167 

recover by means of an action in counter-claim on mandatum; 
should he however have paid any penalty in consequence of some 
unlawful act of his own, this he has no right to recover. 6. If 
any costs of litigation have been incurred in good faith by the 
procurator of either plaintiff or defendant, justice requires that 
they should be made good to him. 7. Where two persons are 
entrusted by mandate with the management of a man's affairs, 
and one of them is a debtor of the person who gave the mandate, 
can the other properly sue such debtor? No doubt he can; he is 
not to be regarded as any the less a procurator because the person 
whom he sues is a procurator himself. 

47 JuLiANUS {on Urseius Fe^'ox 4) Where a man has left two 
procurators of all his affairs, then, unless he expressly laid down 
that one was to sue the other for money, he cannot be held to 
have given such a mandate to whichever chooses to assume it. 

48 Gaius {on the provincial Edict 3) Accordingly, where he 
has given such a special mandate, it follows that if one of the two, 
on being sued by the other, should meet the demand with an 
exceptio such as this : " if no mandate to proceed against debtors 
was given to me," the plaintiff may have a replicatio in the words : 
"or a mandate was given to me to sue you." 

49 Paulus {o'h the Edict 54) A principal ought not to be put 
in a worse position by an act of his procurator of which he has no 
knowledge. 

50 Gaius {on the provincial Edict 22) If your procurator is 
discharged from my demand, in any way whatever, you ought to 
have the benefit of it. 

51 Ulpianus {on the Edict 60) If a person under the age of 
twenty-five should be a defensor, he is not a good defensor in any 
matter in which he has a right to an order for restitutio in hite- 
grum, because such an order releases both him and his sureties. 
1. ^As the position of defensor carries with it the same liabilities as 
that of principal defendant, no order ought to be made [at the suit 
of a wife] on the defensor of the husband beyond what the husband 
can perform. 2. When a man has undertaken to defend an action 
on another's behalf, then, though he should be of abundant means, 

52 Paulus {on the Edict 57) or of consular rank, 

53 Ulpianus {on the Edict 60) still he is not held to be 
defending, unless he is ready to give security. 

^ Del. tamen. M. 



168 On ''Procurators'' and ''Defensors'' [book ni 

54 Paulus {on the Edict 50) Women, soldiers, persons who 
are about to be absent on government service, or are afflicted with 
incurable illness, or are about to enter upon a magisterial office, 
or who cannot be made parties to judicial proceedings against 
their own will, are not held to be good defensors. 1. Guardians 
who have managed the affairs of their wards in any particular 
place must be defended in the same place. 

55 Ulpianus {on the Edict 65) When a man is appointed 
procurator on his own behalf his principal will have no prior claim 
to prosecute the action or to receive money [paid by the other 
side] ; since where a man has an available right of action in his 
own name he is the proper person to institute the proceedings. 

56 The same {on the Edict 66) A man who is appointed 
procurator to sue for recovery of some movable has a good right 
to bring an action for production. 

57 The same {on the Edict 74) Where a man appoints a 
procurator to take proceedings at once, he must be regarded as 
allowing him to prosecute the suit at a later time too. 1. A man 
who abandons an exceptio founded on an objection to the 29roc«<rator 
cannot afterwards change his mind and raise it. 

58 Paulus {on the Edict 71) A j^^ocurator who has been 
entrusted generally with the free management of his principal's 
affairs may call for the payment of debts, novate contracts, or 
exchange one thing for another; 

59 The same {on Plautius 10) and he is also treated as having 
a mandate to pay creditors. 

60 The same {Responsa 4) A general mandate does not involve 
the right to compromise a matter by way of final settlement; 
consequently if after such a mandate the party who gave it declines 
to ratify the compromise, he is not debarred from exercising his 
original right of action. 

61 The same {on Plautius 1) Plautius says this: — "all are 
agreed that, when judgment is pronounced against a procurator, 
he cannot be sued [in an actio judicati\ unless either he was 
appointed on his own behalf, or else he put himself forward [to 
undertake the defence] knowing that security had not been given." 
The rule is the same even where he puts himself forward to 
undertake the case as a defensor and gives security. 



TIT. ni] On "Procurators" and "Defensors" 169 

62 PoMPONius (Extracts from Plautlus 2) If a man who is 
appointed jn-ociirator to recover a legacy should sue out an 
Interdict against the heir for production of the testament, he 
cannot be met with an exceptio founded on an objection to the 
procurator on the ground that the application for the interdict 
was beyond his mandate. 

63 MoDESTiNus {Differences 6) A procurator as to property in 
general {totorum honormn) who has a mandate to manage his 
principal's affairs cannot dispose of property, either moveable or 
immoveable, or slaves, without a special mandate from his principal, 
except fruit or other things such as easily spoil. 

64 The same {Rules 3) If, before joinder of issue, the person 
on whose behalf some one appears as defensor should himself 
come forward and apply for leave to conduct the case on his own 
behalf, his application should be considered, on special ground 
shown. 

65 The same (Jieurematica) Where a procurator is absent, 
and his principal desires to relieve him from the necessity of giving 
security, this latter should address a letter to the opposing party 
informing him who it is that he has appointed to act as procurator 
against him, and in what matter, adding that he will himself ratify 
anything done to which such procurator is a party ; as, after this, 
the letter being admitted, it will be held that the person mentioned 
appears as procurator for a present principal. Accordingly, though 
the principal should afterwards change his mind and desire that 
the person should not be procurator, still the proceedings in which 
the person acted in that character must be held good. 

66 Papinianus {Questions 9) A man stipulates to have de- 
livered to him either Stichus or Damas, the choice to be with 
himself; if^ thereupon Titius brings an action as procurator to 
recover one of the two, and the principal ratifies his doing so, the 
result is that the Court is possessed of the question, and the 
stipulation is superseded. 

67 The same {Responsa 2) If a procurator pledged his own 
faith so as to warrant the title to land which he sold, and after 
that he ceases to manage his principal's aflkirs, he still will not be 
relieved by the aid of the praetor from the burden of his obligation ; 
where a procurator undertook to be bound by an obligation on 

1 Del. et before ratum. Of. M. 



170 On ''Procurators'' and " Def elisors'' [book in 

behalf of his principal, there is no use his declining to bear the 
burden. 

68 The same {Responsa 3) Where a procurator stipulates for 
something on his principal's behalf, consistently with the terms of 
his mandate, the principal cannot^ sue to recover it without the 
procurator's consent. 

69 Paulus {Responsa 3) Paulus laid down that even where 
a man has appointed a procurator to undertake his defence in an 
action, he is not precluded from appearing in support of his own 
case. 

70 Sc^voLA {Responsa 1) A father appointed one Sempronius, 
his creditor, a guardian to his son, a boy under age ; who, after 
discharging the duties of guardian, died, leaving his brother his 
heir; after this, the brother himself died, having bequeathed to 
Titius by way of fideicommissum the debt owed by the father, 
whereupon the heirs [of the brother] assigned their right of action 
to Titius by mandatum. I wish to ask this : — seeing that the 
liability to the actio tutelce and the right to sue for the money lent 
were both derived from Sempronius's inheritance, is it [not] the 
case that tlie right of action acquired by assignment is only given 
on the terms of the assignee (Titius) undertaking the defence of 
the heirs by whom the assignment was made ? My answer was that 
Titius was bound to undertake the defence mentioned. 

71 Paulus {Sentences 1) An absent defendant can state the 
grounds of his absence through a procurator. 

72 The same {Handbooks 1) The agency of a procurator is 
not merely a method of acquiring a right of action, it sometimes 
enables a man to keep one alive ; for example, w^here the procurator 
sues a debtor within the statutable time, or where he notifies 
against a novel structure being made, so as to make available the 
Interdict quod vi aut clam, as this is equally a case in which a 
procurator keeps an ancient claim on foot for his principal. 

73 The same {on the office of assessors) If the defendant is 
ready before litis contestatio to pay the sum demanded, what is 
the proper course, where the action is brought by a procurator ? 
It would be unfair that the defendant should be compelled to go 
on with the defence where the result may be that he will pass for 
a person of doubtful character, because he did not ofier the money 

1 Before potest ins. non. Cf. D. 41. 2, 49. 2. 



TIT. ni] On "Procurators'' arid "Defensors'' l7l 

when the principal plaintiff was there. Periiaps at that time it 
was not in his power to pay the money ; ought he in that case to 
be compellable to defend the action? perhaps it may even be one 
which involves infamy. However one thing is clear, viz. that 
before litis contestatio the pt'ceses may order the money to be 
deposited in a consecrated building ; in fact this is what is done 
in the case of the money of a pupilhis. If litis contesfatio has 
already taken place, the whole question is one to be settled by the 
judge of his own authority. 

74 Ulpianus {Opinions 4) Even the officer acting on behalf 
of a city corporation {civitatis actor) cannot transact civil business 
by means of a procurator. 

75 JuLiANUS {Digest 3) A having purchased and taken pos- 
session of land, B undertook in his absence to defend an action 
brought against him [to recover the land], and joined issue with 
the plaintiff on his behalf, but after that B requested the vendor 
of the land to take the defence upon himself; the vendor asked 
that B should give security that the purchaser would ratify the 
proceedings ; I should say that B is bound to give him security for 
such ratification, because, if he [the vendor] makes over the land 
to the plaintift', there is nothing to prevent the principal. A, suing 
for the property and the vendor being compelled to defend over 
again. 

76 The same {on Minicius 5) Titius, having undertaken to 
defend an action for an absent person, gave the regular security, 
and, before he had joined issue in the action, his principal became 
insolvent, whereupon the defensor [Titius] objected to issue being 
joined against himself as defendant. I wish to know whether his 
refusal ought to be allowed. Julianus replied : — as soon as the 
defensor has given security he is to be treated as a principal. 
Moreover if the pra3tor declines to compel him to submit to joinder 
of issue, the defensor will not gain much by it ; as recourse can be 
had to his sureties, and whatever they pay they can recover from 
him. 

77 Paulus {on the Edict 57) Whenever a man's case is de- 
fended by another it must be defended to the satisfaction of an 
impartial arbiter: 

78 Africanus {Questions 6) and a man cannot be held to 
defend a case to the satisfaction of an impartial arbitrator who 
puts the plaintiff off in such a way as to prevent a decision being 



172 On "Procurators'" and "Defensors'' [book in 

come to on the question. 1. If a procurator is appointed to bring 
an action for two things, and he brings an action for one, no 
exceptio on that ground will be admissible in bar of the action, and 
the matter will be properly before the court. 



IV. 

On proceedings taken on behalf of any corporation 
or against the same. 

Gaius {on the ^yrovincial Edict 3) Associations and guilds 
and similar corporations are not allowed to be formed by all 
persons without discrimination; this is a thing which is kept 
within certain limits by statutes and decrees of the senate and 
imperial enactments. It is only in very few kinds of cases that 
such corporate bodies are allowed ; for example, the power of 
constituting a corporation is permitted to partners in government 
vectigalia, as well as in gold mines, silver mines and salt mines. 
Moreover there are at Rome particular guilds whose corporate 
character has been established by senatorial decrees and imperial 
enactments, such as the guilds of bakers and of some others, also 
guilds of shipowners, and these last exist in the provinces as well. 

1. Where any persons are permitted to constitute a corporation in 
the way of a guild or a company or any other body, they have the 
special right to have, like a municipal body, common property, 
a common chest, and an actor or syndicus by whose agency 
anything that has to be transacted and done on the general behalf 
can be transacted and done accordingly, as in a municipal body. 

2. If nobody defends any action at law against the society, the 
proconsul declares that he will order such common property as 
they have to be taken into possession, and if, after due notice 
given, they do not bestir themselves to defend their case, he will 
order such property to be sold. It is moreover held that there is 
no actor or syndicus even when the actor is [only] absent or 
detained by ill-health or is incapable of acting. 3. If a stranger 
is disposed to defend the case of the corporation, the proconsul 
will allow him to do it, in accordance with the rule as to defending 
private persons, because, where this is done, the position of the 
corporation is improved. 



TIT. iv] On proceedings on hehalf of a corporation 173 

Ulpianus {on the Edict 8) If the members of a municipality 
or if any corporation appoint an actor to take legal proceedings, 
we must not say that this officer is to be treated as though he were 
appointed by a number of individuals ; he appears on behalf of the 
civic community or the corporation, not on behalf of the constituent 
members separately considered. 

The same {on the Edict 9) No one is allowed to take 
proceedings at law on behalf of the body of citizens or of the 
curia, except one who is allowed by some statute, or, in default of 
a statute, is authorized by the members of the curia themselves, 
two-thirds at least of their number being present. 

Paulus (on the Edict 9) No doubt to make up the number 
of two-thirds of the decurions the person himself whom they 
appoint may be reckoned in. 

Ulpianus {on the Edict 8) One thing Pomponius says must 
be borne in mind, that a father's vote will be allowed on behalf of 
his son and a son's on behalf of his father, 

Paulus {on the Edict 9) and so will the votes of persons 
under the same jwtestas, as everybody gives his vote as a decurion 
and not in the character of a member of the household. A similar 
rule ought to be applied in the case of a candidature for a public 
office, unless it is precluded by some municipal regulation or 
ancient custom. 1. If the decurions have ordered that legal 
proceedings should be set on foot by whomsoever the Duumvirs 
elect, that person is held to be chosen by the body, so that he can 
take the proceedings ; it makes very little difference whether the 
choice is made by the body of decurions itself or by some one 
whom the same body authorized to make it. But if they were to 
make a resolution to this eifect, that, whenever any occasion for an 
action should arise, it should be the business of Titius to sue in 
connexion with it, such a resolution is at once null and void, 
because it cannot be held that a resolution can give the right to sue 
with reference to a matter which is not yet in dispute. However, 
at the present day the practice is for all matters of this kind to be 
managed by means of syndics, in accordance with the customs of 
the respective localities. 2. Suppose a man appointed actor 
should afterwards be set aside by a resolution of the decurions, 
would an action by him be barred by an exceptio ? I should say 
myself that the way to deal with this question is to say that 
permission to sue can only be held to be valid where such 
permission once given is continued. 3. If the actor of a corpora- 



174 On x>roceedings on behalf of a corporation [book ni 

tion brings actions, he is bound to defend actions too, but he is not 
bound to give a guarantee for ratification. Still sometimes, if 
there is doubt whether the order appointing him was made, 
I should say that a guarantee for ratification ought to be given. 
It follows that the actor in question performs the function of a 
2)rocurator, and the Edict does not give him an action on the 
judgment, unless he is appointed on his own behalf. He can also 
accept a constitutimi. The right to change an actor exists in the 
same cases as that to change a procurator. Even a Jiliusfamilias 
can be appointed actor. 

7 Ulpianus (o7i the Edict 10) Just as the prsetor allowed an 
action on behalf of a municipality, so too he thought with great 
reason that the edict should be made to refer to actions against 
one. I should say too that where a legate has spent money on 
some concern of the municipality, he ought to be allowed an action 
against the municipal body. 1. What is owed to the corporation 
is not owed to the individual members, and what the corporation 
owes the individual members do not owe. 2. In the case of 
decurions and corporations in general, it is of no consequence 
whether the individuals all remain unchanged, or a part only 
remains or all are changed. If the number of corporate members 
comes down to one, it is still held on the whole that this one can 
sue and be sued, as the legal position of the whole number has 
devolved on one person and the appellation of corporation still 
remains. 

8 Javolenus {extracts from Cassius 15) If town communities 
fail to be defended by those persons who manage their property, 
and there are no corporeal effects belonging to the corporation of 
which possession can be taken by creditors, satisfaction ought to 
be given to the parties suing out of the debts due to the town. 

9 PoMPONius {o7i Sabinus 13) If you are coheir to some one 
along with a municipality, you and the body will have good mutual 
rights of action for division of the inheritance {familiw erciscundce). 
The same may be said of an action to determine boundaries, or to 
avert rain-water. 

10 Paulus {Handbooks 1) An actor may be appointed further 
for an operis novi nuntiatio, and to enter into stipulations, for 
instance a stipulation for payment of legacies, for making good 
damnum infectum, for one that a decree shall be obeyed, although 
it is true that the assurance should rather be given to a slave of 



TIT. iv] On proceedings on behalf of a corporatlo7i 1 75 

the civic community ; still, if it is given to the actor, the manager 
of the property of the community will have an utilis actio. 



V. 

On negotia gesta (voluntary agency). 

Ulpianus (on the Edict 10) This edict is indispensable, 
as it deals with a matter of great importance to absent persons, the 
object being to secure that they shall not, in consequence of actions 
against them being undefended, have their property taken into 
possession or sold to pay their creditors, or pledges sold that 
they have given for debt, or have actions brought against them 
to enforce payment of penal damages, or lose their property 
wrongfully. 

Gaius (on the jjrovincial Edict 3) Where a man volunteers 
to manage the affairs [7iegotia gerere] of another in his absence, 
even without the party's knowledge, whatever money he spends to 
good purpose on the affairs of the other, indeed whatever obligation 
he incurs towards any one in the interest of the other during his 
absence, he has a right of action on the strength of it ; accordingly, 
in the case in question, mutual rights of action arise which are 
called actions on negotia gesta. And, certainly, just as it is 
reasonable that the party himself who managed for the other 
should give an account of his proceedings, and, wherever he 
managed the affairs in any respect improperly, or kept back any 
profit which he made in the course of the proceedings, should be 
ordered to make compensation in that behalf, so, conversely, it is 
fair also, where he has managed to good purpose, that there should 
be made good to him any loss which he incurred or will have to 
incur in the matter. 

Ulpianus (on the Edict 10) The praetor says : — " If a man 
volunteers to manage affairs in which another is concerned, or 
affairs in which another was concerned at his death, I will grant an 
action thereon." 1. The words ' if a man ' may be taken thus ' if a 
man or a woman,' as it is settled that women too can bring actions 
on negotia gesta or be sued in such actions. 2. The word 'affairs' 
is to be read as applying to one affair or to several. 3. There 



176 On negotia gesta (voluntary agency) [book rn 

follows the word 'another,' and this also applies to both sexes. 
4. There is no doubt, if a ward " manages affairs,'' that after the 
rescript of the Divine Pius he can in fact be sued to the extent of 
the amount to which he is enriclied ; of course, if he himself sues, 
he must allow his liability on the management to be set off. 5. If 
I manage affairs for a lunatic, an action for negotia gesta lies 
against him in my favour ; and, according to Labeo, the curator 
of a lunatic of either sex will have an action allowed him against 
the lunatic. 6. The words " or manages affairs in which another 
was concerned at his death " refer to cases in which the party 
manages after a man's death; it was necessary that the Edict 
should refer to such cases, because he cannot be said to have 
managed affairs for the testator who was already dead, or for an 
[appointed] heir who had not yet taken up the inheritance. If 
there has been any accession of property after the death, for 
instance, there are children of female slaves, or young of cattle, or 
vegetable or other produce or proceeds, or any acquisitions made 
by slaves ; though none of these cases are embraced in the words, 
still they ought to be regarded as included. 7- As this action is 
founded on management executed {negotium gestwm), the right as 
well as the liability descends to tlie heir. 8. If a person who is 
appointed by the prsetor to execute a judgment in connexion with 
my affairs should deal fraudulently with me, an action will be 
allowed me against him. 9. Labeo tells us that in the action on 
negotia gesta sometimes the only material point is the question of 
'dolus'; if, for instance, you volunteer to act in my affairs, simply 
on the strength of your goodwill to me, to prevent my property 
being sold to pay my debts, it will be absolutely just, he says, 
that you should answer for 'dolus' alone, and this is not an 
unreasonable view. 10. A man is liable to this action not only 
where he meddles with somebody else's affairs and acts in them of 
his own accord, without being driven to it by any pressure, but 
even where he is driven by some pressure or acts on the notion 
that there is pressure put upon him. 11. The following question 
is raised in Marcellus (Dig. 2). Suppose I have already made up 
my mind to volunteer to manage something for Titius, and, that 
being the case, you give me a mandate to do the same thing; can 
I have both actions ? To this I should say myself that both actions 
will lie. This is exactly like what Marcellus himself says in 
reference to the case of my proposing to manage some one else's 
affairs and thereupon taking a surety ; in this case too, according 
to him, an action will lie against both. 



TIT. v] On negotia gesta {voluntary agency) 177 

4 The same {on Sabinus 45) However, whether in this case 
the surety would not have some right of action is a question to 
consider, but the true rule is that he can bring an action for 
negotia gesta, unless he became surety out of pure bounty. 

5 The same {on the Edict 10) Add that, if I managed for you 
under the belief that I had a mandate from you, this again will be 
perfectly good ground for an action on negotia gesta, and the 
action on mandatnm will not lie. A similar rule applies where 
I become surety for a debt owed by you in the belief that I 
had a mandate from you. 1. And if I managed under the idea 
that the aifair concerned Titius when it really concerned Sem- 
pronius, Sempronius alone is liable to an action at my hands on 
negotia gesta. 

6 JuLiANUS says : — (Dig. 2) If I manage affairs of your ward 
without any mandate from you, but to save you from liability on 
the actio tutelce, this will make you liable at my hands on 7iegotia 
gesta, and so it will your ward, provided, that is, he is enriched by 
it. 1. Again, if I lend money to jour jjrocurator on your account, 
for him to pay off your creditor with it or to redeem your pledge, 
I shall have a right of action against you on negotia gesta, but 
I shall have none against the man with whom I made the agree- 
ment. Suppose however I take a promise from your procurator 
by stipulation ; it may be said that I still have an action against 
you on negotia gesta, because I added the stipulation in question 
out of extra caution. 2. If a man receives money or anything else 
to bring it to me, then, as he acted in my business, I have a good 
right of action on negotia gesta against him. 3. We may add that 
if a man has managed my affair with no thought of me, but for the 
sake of gain to himself, then, as we are told by Labeo, he managed 
his own affair rather than mine (and, no doubt, a man who inter- 
venes with a predatory object aims at his own profit and not at my 
advantage) : but none the less, indeed all the more, will such a one 
too be liable to the action on negotia gesta. Should he himself 
have gone to any expense in connexion with my affairs, he will 
have a right of action against me, not to the extent to which he is 
out of pocket, seeing that he meddled in my business without au- 
thority, but to the extent to which I am enriched. 4. If a man has 
gone to work in such an unintelligent way as to act in his own 
interest in respect of his own property, fancying he was acting 
in mine, there is no ground for an action on either side, in fact 
good faith itself is against there being any. If he acts in his 

M. J. 12 



178 On negotia gesta (voluntary agency) [book in 

own affair and mine too, thinking it is only mine, he will be 
liable in respect of mine ; as, even if I give him a mandate to 
act in my interest in a matter in which you and I had a joint 
concern, the rule is, according to Labeo, that if he acted in your 
interest too, with his eyes open, he is liable to you on negotia 
gesta. 5. If a man acts in my interest as if he were my slave, when 
he is really my freedman or is freeborn, lie will be allowed an action 
on negotia gesta. 6. But if I act in the interest of your son or 
your slave, let us see whether I have not an action on 7iegotia 
gesta against you. For my own part I agree with a distinction 
made by Labeo and approved by Pomponius (b. 26) to the effect 
that if I acted in some matter connected with [your son's or 
your slave's] peeidiuni on your account, you are liable to me ; 
but if I did it out of friendship for your son or your slave, or 
on their account, an action ought to be allowed against the father 
or the owner to the extent of the peculium only. The same rule 
holds even where I thought the person was sui juris. For example, 
if I buy for your son a slave which he does not require, and you 
ratify, your ratification, so Pomponius says in the same passage, is 
inoperative', to which he adds that, in his opinion, even though 
there should be nothing in the peculium, because it is exceeded by 
the amount owing to the father or owner, still an action ought to 
be allowed against the father himself to the extent to which he is 
made the richer by my management. 7. If, however, I managed 
affairs on behalf of a free man whom you had in your service bona 
fide as your slave, then, according to Pomponius, if I did it thinking 
he was your slave, I shall have a good action on negotia gesta 
against you in respect of so much of his peculium as has to remain 
in your hands, but, in respect of so much as he has a right to carry 
away himself, I have no action against you, but only against him. 
Indeed, if I knew he was free, I still have a right of action against 
him in respect of so much of the peculium as he can take away, 
and against you in respect of so much as has to remain with you. 

8. According to Pomponius, if I think that a slave belongs to Titius 
who really belongs to Sempronius, and I give money to prevent his 
being killed, I have an action on negotia gesta against Sempronius. 

9. The following question is raised in Pedius (b. 7) : — I ask Titius, 
without bringing any action, to pay me money, fancying he is your 
debtor, and he pays, though really he is not your debtor, after which 
you hear of the fact and ratify the payment;— can you sue me 
on negotia gesta ? On this point Pedius says there may be some 

1 For agitur read agi tua. Cf. M. 



TIT. v] 071 negotia gesta {voluntary agency) 179 

doubt, because no affair of yours was transacted, Titius not having 
been your debtor. The ratification however, he says, makes the 
affair yours ; the man from whom the money was received has a 
right of action to recover it from the one who ratified [that is you], 
and in the same way the latter will after the ratification have a 
good right of action against me. Thus ratification will make an 
affair yours which originally was not yours, but only managed on 
your account. 10. The same writer has this. Suppose I think that 
you are heir to Titius, whereas the real heir is Seius, whereupon 
I sue a debtor of Titius [on your behalf], and I recover the money, 
after which you ratify ; there are then mutual rights of action on 
tiegotia gesta between you and me. You may say the affair trans- 
acted was none of yours but some one else's ; but this is made good 
by your ratification, the result of which is that the affair transacted 
must be treated as in your interest, and there will be a good here- 
ditatis petitio against you. 1 1. How then, asks Pedius, if I, thinking 
you are an heir, repair a block of chambers belonging to the 
inheritance, and you ratify, do I have a right of action against 
you? To this his answer is No ; by such an act of mine another 
man is enriched, and the thing done is a direct service to some 
one else, and it is impossible that where the act is a direct 
advantage to another this should be held to be a case of manag- 
ing your affair. 12. Let us consider the following case. Suppose 
a man who is carryhig on a course of management for another 
has taken steps in respect of some affairs and neglected others, 
but, in consequence of his action, some one else forbore to attend 
to the affairs last mentioned, whereas, all this while, a really 
diligent man, — and this is what the party acting may be required 
to be, — would have managed the other affairs too, — ought we 
to say that the party is liable in an action on negotia gesta 
even in respect of the matters which he did not manage ? This, 
I should say, is the more correct view. Certainly if there is any- 
thing for which he was bound to call himself to account, he 
will beyond doubt be chaiged mth it. Granting indeed that it 
cannot be laid to his charge that he omitted to sue other debtors, 
because it was not in his power to sue them at law, seeing 
that he could not bring any action at all, still he will be charged 
with omission in not getting in his own debt ; and if that debt 
should chance to be one that carried no interest, interest at 
once begins to be due ; — so the Divine Pius informed Havius 
Longiuus in a rescript, — unless, as the Emperor proceeds to say, 
the principal had released the party from the payment of interest, 

12—2 



180 On negotia gesta {voluntary agency) [book ni 

7 Paulus {on the Edict 9) As the office of the judex has just 
the same force in bona fide cases as question [and answer] have 
in a stipulation expressly made to the same effect. 

8 Ulpianus {on the Edict 10) But if the person who carried 
on the affairs was a person of such a kind that he would not be 
required to show any mandate, he might be called to account for 
not offering to give the debtor a guarantee of ratification, and so 
suing him, assuming that there was no difficulty about giving the 
guarantee. At any rate there is no doubt whatever about debts 
due from himself ; consequently, if he was indebted on some 
ground which would cease to operate at the end of a fixed 
period, and he was discliarged [as debtor] by lapse of time, he 
will none the less be liable to an action on negotia gesta. A 
similar rule applies to a case where the heir of a deceased 
debtor would not be liable, as Marcellus tells us. 1. Again, if I 
bring an action to recover land belonging to you or to a city, 
in which I use underhand means, but I am acting in your interest 
or in that of the city, and I get by the action a larger sum by way 
of mesne profits than I ought to have got, I shall be bound to 
make over the whole amount to you, — or to the city authorities, 
as the case may be, — though I had no right to sue for it. 2. If 
it comes to pass in any way that the judex takes no account of 
some ground of set-off", an actio contraria can be brought ; but 
if the set-off is considered and rejected, the better opinion is 
that no actio contraria can afterwards be brought, for the reason 
that the case is decided, and the plaintift' would in that case be 
met by an exceptio of res judicata. 3. Julianus (b. 3) discusses 
this case. There are two partners of whom one forbids me to 
carry on the management, and the other does not forbid me ; 
shall I have a right of action on negotia gesta against the one 
who did not forbid me ? His difficulty is this, that if an action 
is allowed against this latter, it is impossible that the one who 
forbade should not be implicated too : however, it is equally 
unjust in his opinion that the one who did not forbid should 
through the act of his co-partner escape liability, seeing that, 
supposing I were to lend money to one of two partners where 
the other partner forbade me to do so, I should at any rate 
acquire a legal claim on the former. Accordingly I hold that 
the proper view is that of Julianus, that there will still be a 
good action on negotia gesta against the one who did not forbid, 
it being always understood that the one who forbade is not to 



TIT. v] On negotia gesta {voluntary agency) 181 

incur loss to the slightest degree either through his partner or 
directly. 

Sc^voLA {Questions ]) Pomponius says, — if you manage 
some affair of mine, and I approve of what you did, though you 
managed it badly, still you are not liable to me on negotia gesta. 
A point to consider will accordingly be, [as he thinks,] whether it 
is not the case that, so long as it is doubtful whether I am going to 
ratify or not, the right of action on negotia gesta is suspended ; 
indeed, how is it possible for a right of action which has once 
accrued to be put an end to by the bare will [of the party who 
has it] ? However, he thinks that the above rule is only true 
where you are clear of all dolus malus. Here Scsevola adds : 
I should rather say that even where I approve, I still have a right 
of action on 7iegotia gesta, and where it is said that you are not 
liable to me, this only means that I cannot disapprove of what I 
have once approved of; and just as anything which has been 
managed to good purpose must needs be treated as if it were 
ratified, Avhen it comes into court, so in like matter must anything 
Avhich the party has himself approved of. Indeed if it is true that 
where I have approved I have no right of action on negotia gesta, 
how will matters stand if the other receives money from my debtor 
and I approve? how am I to recover it from him? Or say he 
sells something of mine; or, again, he lays out money on my 
behalf, how is he to recoup himself? In any case there is no 
mandatum that he can sue on. It is clear therefore that even 
after ratification there will be an action on negotia gesta. 

Ulpianus {on the Edict 10) Does the law however go so 
far as to bestow on me a right of action for the expense I have 
incurred? I should say I have a good right of action, unless it 
was expressly agreed that neither party should have an action 
against the other. 1. But when a man sues on negotia gesta he 
will have the action not only where the management led to some 
result, but it is enough for him if he acted beneficially, even if it 
finally led to no result. Accordingly, if he repaired a house that 
was in danger of falling, or cured a sick slave, he will have a good 
action on negotia gesta, even if the house is now burnt or the 
slave is dead: this Labeo approves of. However, according to 
Celsus, Proculus says in a note on the passage in Labeo that the 
action need not always be allowed [even if the work was effective]. 
Take the case, for instance, of a man repairing a house which the 
owner had abandoned because he could not afford the expense of 



182 On negotia gesta {voluntary agency) [book ni 

it, or one which he did not think he required. In such a case, 
says Proculus, lie is laying a burden on the owner, if we adopt 
Labeo's view, as everybody is at liberty to abandon his property, 
even though it be to escape liability for damnum infectum. 
However, this opinion of Proculus is rather neatly held up to 
ridicule by Celsus. A man, he says, to have an action on negotia 
gesta must have managed the affair beneficially, but he does not 
manage it beneficially, wliere he undertakes something which is 
not wanted or which would lay a burden on the householder. 
Similar to the above rule is a remark we meet with in Julianus, 
viz. that a man who has repaired a house or cured a sick slave has 
an action on 7iegotia gesta, if he did it beneficially, though no 
eventual advantage should be realized. I should like to ask this : 
suppose he thought he did it beneficially, but the householder was 
not really the better for it, how does the matter stand ? I should 
say that in this case he will not have the action on negotia gesta ; 
as granting that we do not consider the idtimate result, anyhow 
the act ought to be beneficial at the outset. 

11 PoMPONius {on Quintus Muciiis 21) If you manage the 
aflairs of an absent man without his knowledge, you must answer 
for negligence as well as deliberate misfeasance. Proculus indeed 
says that sometimes you must answer even for accidents ; for 
example, where you manage on behalf of an absent man some new 
kind of affair which the other was not in the habit of doing 
himself; for instance buying untrained slaves in the market, or 
entering upon any more or less complicated business ; the rule 
being that if any loss results from the business, it will fall on you, 
but gain will go to the absent principal ; however, if, taking the 
whole transaction, gain is made in some things and loss incurred 
in others, the absent principal is bound to set off" the gain against 
the loss. 

12 Ulpianus {on the Edict 10) This action must be allowed to 
the successor of a man who died in the hands of the enemy, the 
deceased being the person whose affairs are in question. 1. More- 
over if I acted on behalf of some son under ji>o^6S#as, a soldier, who 
died after making a testament, an action must be allowed on the 
same principle : 2. and just as in respect of the management of 
the affairs of the living, it is enough that such management was 
beneficial, so it is also in respect of the property left by persons 
deceased, even though the ultimate result should be other than was 
intended. 



TIT. v] On negotia gesta {voluntary agency) 183 

13 Paulus {on the Edict 9) A debtor of mine who owed me 
fifty died, I undertook to be curator of his estate and I spent (as 
curator) ten. After this one hundred were realized by the sale 
of a portion of the property which he left on his death, and I put 
that sum by in a chest ; but the money was lost without any 
negligence on my part. The question arose whether, on an heir 
eventually coming forward, I had a right to sue him, either for the 
sum of fifty which I had originally lent, or for the ten which I 
spent. Julianus says that the essential point to consider is whether 
I had reasonable ground for putting by the hundred, because, 
assuming that what I ought to have done was to pay off what was 
owing to myself and the other creditors who had claims against 
the estate, then I ought to bear the risk of not only the sixty 
{sic) but also of the forty that remained ; however, I might still 
retain the ten which I spent ; in other words I need only make 
good ninety. But if there was reasonable ground for keeping the 
whole sum of one hundred by me, for example, there was a danger 
lest land of the deceased should be forfeited for a government 
debt, or, money having been borrowed on a sea-risk, the penal 
sum payable on failure of the condition should be increased, or 
payment should be demandable in pursuance of an arbitration, — 
then, says Julianus, I can recover from the heir not only the ten 
which I spent to preserve the estate, but in addition to that my 
original debt of fifty. 

14 Ulpianus {on the Edict 10) Where the case is that a 
Jiliusfamilias managed affairs, it will be perfectly just that an 
action should be allowed against the father himself, whether the 
son has a peculium, or he acted so as to improve his father's 
estate ; and if the party was a female slave the principle is the 
same. 

15 Paulus {on the Edict 9) Pomponius says (b. 26) that in 
negotia gesta you must always look at the condition^ of the party 
[whose affairs are managed] as it is at the outset. Suppose, for 
instance, he says, I begin to manage affairs for a boy under age, 
and before I have finished he becomes of age ; or I manage 
affairs for a slave or a Jiliusfamilias, and in the course of the 
management he becomes free or sui juris as the case may be. 
I have myself always laid down that this is the sounder view, 
except in a case where a man undertakes the matter intending 
to manage a single piece of business, but afterwards undertakes 

^ Del. temporis. M. 



184 On negotia gesta {voluntary agency) [book in 

a second course of management with a distinct intention at a 
time when the other party is already become of full age or free or 
sui juris : in this case you may say that there are so many different 
acts of management, so that the action will be governed and the 
terms of the order to be made be adjusted in accordance with the 
status of the party. 

16 The same {on Plautius 7) Still, where a man manages 
affairs of mine, there are not a number of different affairs, but one 
single contract, unless he undertook one particular affair with the 
intention, when he had finished that, of going no further ; in such 
a case as that, if he should alter his mind and proceed to address 
himself to another affair as well, there is a fresh contract. 

17 Ulpianus {on the Edict 35) Where a man has carried on a 
particular course of management while a slave, he is not bound to 
give an account of it after he is manumitted. It is true that if it 
is mixed up [with the subsequent matter], so that it is impossible 
for the account of what was done during slavery to be separated 
from that of what the party did in a state of liberty, then as a 
matter of course the case on mandatum or on negotia gesta will 
comprise what was done during slavery as well as the rest. For 
instance, suppose a man while still a slave buys a site for building 
and builds a block upon it, and the block collapses, after which 
he is manumitted and leases the ground to a tenant, the action on 
negotia gesta will embrace nothing more than the lease of the 
ground, as no portion of the course of management carried on 
during the preceding time can be brought into the case, unless it 
be something without which it is impossible to get at a clear 
account of the affairs carried on while the party was free. 

18 Paulus {on the Edict 9) Proculus and Pegasus say that a 
man who began a course of management while he was a slave is 
bound to act in good faith, and that, consequently, whatever sum 
he would have been able to realize, if some one else had been 
managing on his behalf, he must now, as he did not make himself 
pay it, make the same sum good to his principal, if sued on negotia 
gesta, if he had so much in his peculium that by retainer of the 
same the amount could have been realized. With this Neratius 
agrees. 

19 The same {on Neratius 2) However, even if he had notliing 
in his pecidium, still he was indebted by way of natural obligation, 
and, if he afterwards had anything, he was bound to pay himself 



TIT. v] On negotia gesta {voluntary agency) 185 

out of it [as agent], if, [when free] he continued to carry on the 
same course of management ; just as a man who was liable to an 
action which would be barred by lapse of time is compellable, even 
after the period of limitation expires, to make the amount good [to 
the principal], if sued on negotia gesta. 1. Our friend Scsevola 
says that in his opinion the remark of Sabinus that the account 
ought to be given from the beginning must^ be understood to mean 
that it ought to appear what the available balance was when the 
party managing first became free, not that he is to hold himself 
liable for what is attributable to malice or negligence of which he 
was guilty while a slave ; so that even if it should be discovered 
that when he was a slave he spent money improperly, still he will 
not have to account for it. 2. If some free man serves me as a 
bona Jicle slave, and I commission him to do something, then, 
according to Labeo, I have no action on mandatum against him, as 
he did not execute the commission of his own free will, but under 
the impression that he was compellable as being a slave ; ac- 
cordingly there will be an action on negotia gesta, because it really 
was his desire to act in my interest, and, as a matter of fact, he was 
capable of contracting a legal obligation towards me. 3. Being 
engaged in managing my affairs in my absence, you bought me 
unawares something that was my own property, and you became 
owner by usiis without knowing it ; you are not under any obliga- 
tion to give it up to me enforceable by an action on negotia gesta. 
But if, before the usucapio is complete, you ascertain that the 
thing belongs to me, you ought to find some one to sue you for it 
on my behalf, so that he may recover the thing for me, and enable 
you to enforce against your vendor the stipulation against recovery^ 
by the owner (evictio) ; and you are not held to be guilty of any 
dolus mains in finding some one to bring the action, as the reason 
why you have to do it is that you may avoid liability on the action 
on negotia gesta. 4. In the action on negotia gesta the defendant 
has to make good not only the capital but the interest too which 
he derived from the others money, and even the interest which he 
might have derived. On the other hand by means of this action 
he can recover interest which he has paid, or which he might have 
drawn from money of his own which he spent on the other party's 
affairs. 5. Titius being in the hands of the enemy, I carried on his 
business, and afterwards he returned. I have a good action on 

1 Transfer debere to the place before quod. Cf. M. 

2 After rem read recipiat. M. 



186 On negotia gesta {voluntary agency) [book ni 

Tiegotia gesta, although at the time when the afiairs were being 
managed, there was no principal in respect of them. 

20 Ulpianus {on the Edict 10) But if he dies in the hands of 
the enemy, both the direct action and the counter action on negotia 
gesta will be available respectively for and against his successor. 

21 Paulus {on the Edict 9) This is illustrated by an opinion 
given by Servius, as reported by Alfenus {Dig. 89). Three men 
were taken prisoners by the Lusitani, one of whom was released on 
the understanding that he should bring back a ransom for all three, 
and that, if he did not return, the two others should give a ransom 
for him as well as themselves. On these facts Servius declared that 
justice required that the Praetor should allow an action against 
him. 1. When a man manages affairs pertaining to the estate 
of a deceased person, he may be said to impose on the inheritance 
an obligation towards himself, and himself to incur one towards the 
inheritance ; accordingly, it makes no difference if the person who 
eventually takes up the inheritance should even be a boy under 
age, as the debt in question will devolve on him along with the 
other burdens on the inheritance. 2. If I have begun to carry on 
Titius's aflairs in his lifetime, I have no right to let them go at his 
death, but I am not obliged to begin any fresh ones, what I am 
bound to do is to carry through matters already entered upon, and 
to keep hold of any advantage gained. x\ rule of this kind is applied 
when one of two partners dies ; as whenever anything is done for 
the sake of winding up some previous affair, it is of no consequence 
how long it takes to conclude it, "the question is when it was begun. 
3. Lucius Titius managed affiiirs of mine in pursuance of a mandate 
from you ; so far as he managed any of them badly, I can bring an 
action against you on negotia gesta, to compel you not only to 
assign your rights of action against him, but also to make good 
to me whatever harm I may have suffered through his neglect, 
on the ground that you selected an agent without knowing his 
character. 

22 Gaius {on the provincial Edict 3) Where a man manages 
affairs in the interest either of an inheritance or an individual, and 
buys some article because he finds it necessary to do so, then, even 
if the article should be destroyed, he can recover what he spent by 
an action on negotia gesta ; suppose, for example, he gets corn or 
wine for household slaves, and by some accident it comes to be 
destroyed, say by fire or the fall of a house. But of course this rule 
only applies where the fall or the fire itself takes place without any 



TIT. v] 071 negotia gesta {voluntary agency) 187 

fault of his ; if he is himself liable to an adverse judgment on the 
ground of the very fall or fire, it would be absurd that he should 
recover anything in connexion with things lost in the way de- 
scribed. 

Paulus {on the Edict 20) If a man who is managing affairs 
for another gets in money which was not due, he is compelled to 
hand it over ; and with regard to any payment which he makes 
of what was not due, the better opinion is that he must hold him- 
self accountable for it. 

The same {on the Edict 24) If I give money to a procurator 
with the intention of making the actual money thereby the property 
of my creditor, the property in it does not pass to the creditor by 
receipt on the part of the procurator ; still the creditor can, by 
ratifying the act of the pi'ocurator, make the money his own, even 
against my will, because the procurator in receiving the money was 
acting on behalf of the creditor only ; accordingly ratification on 
the pai't of the creditor discharges me of the debt. 

The same {on the Edict 27) If a man who is managing 

affairs for another spends more than he ought, what he can recover 
from his principal is the sum which he was obliged to give. 

MoDESTiNtJS {Responsa 1) A man ordered in his testament 

by a Jideicomm.issum that his inheritance should be handed over to 
a particular city ; whereupon the magistrates appointed Titius Seius 
and Gains as trustworthy agents in respect of the property ; after 
which these agents divided the duties of management amongst 
them ; and this they did without the sanction or consent of the 
magistrates. After some time the testament by which the inherit- 
ance was left in trust to be handed over to the city was proved in 
Court to be void, the consequence being that Sempronius was 
recognised as the statutable heir ab intestato of the deceased ; but 
one of the above-mentioned agents died insolvent and left no heir. 
My question is this : — if Sempronius brings an action against the 
agents for this property, on whom is the risk to fall occasioned by 
the want of means of the deceased agent ? Herennius Modestinus 
replied : — whatever cannot be recovered in an action on negotia 
gesta from any particular one of the agents in respect of the 
matters which he carried on alone will be so much to the loss of 
the person who acquired the statutable inheritance. 

The same {Responsa 2) There were two brothers, one of 
whom was of full age and the other was under twenty-five. They 



188 On negotia gesta {voluntary agency) [book in 

shared in common land on which there stood no houses, but the 
elder brother erected extensive buildings on a waste which they 
[also] held in common, on which waste there were dwelling-houses 
standing which had belonged to their father; and on making a 
partition with his brother of the waste in question, he claimed to 
be compensated for his outlay, on the ground that he had improved 
the property ; his younger brother having by that time arrived at 
statutable age. Herennius Modestinus laid down that where an 
outlay was incurred without pressing need but by way of luxury, 
the brother on whose behalf the question was asked had no right 
of action. 1. Where Titius maintained his sister's daughter out of 
natural aifection, I gave it as my opinion that this afforded no 
ground of action against her. 

28 Javolenus {extracts from Cassius 8) Where any one has 
managed aiFairs of Seius in pursuance of a mandate given by Titius, 
he is liable to an action on mandaturti at the hands of Titius, and 
damages must be assessed at an amount representing the interest 
of Seius and Titius in the matter ; moreover Titius' s interest is 
measured by whatever sum he has to pay Seius, towards whom he 
is himself bound on the ground of mandatum or negotia gesta. 
But Titius has a good right of action against the person to whom 
he gave a mandate to manage another person's affairs, even pre- 
viously to his making any payment himself to [that other, that is] 
his own principal, because he may be held to be already the poorer 
to the extent of ^ the obligation which he has incurred. 

29 Callistratus {inonitory Edict 3) If a father appoints by 
testament a guardian to a postumous son, and, pending the birth, 
the person so appointed manages the property as guardian, but 
eventually no son is born ; in such a case, the proper action 
against the guardian is not on tutela, but on negotia gesta ; but, 
should a postumous son be born, there will have to be an action on 
tutela, and this action will embrace both periods of management, 
viz. the one which ends with the birth of the child, and the one 
subsequent to it. 

30 JuLiANUS {Digest 3) A question was asked on a statement 
of fact as follows. A man was appointed curator, by a resolution 
of a municipal body, for the purchase of wheat ; and another man, 
who was appointed to be under him as a subordinate curator, 
spoilt the wheat by mixing something else with it so that the price 
of the wheat was cliarged on the curator, it being bought for the 

1 For quo read quod. Cf. M. 



TIT. v] On negotia gesta (voluntary agency) 189 

municipality. The question was what was the action which the 
curator could bring against the suhmirator so as to recoup himself 
for the loss which he suffered through him. The answer given by 
Valerius Severus was that a guardian has a right to an action on 
negotia gesta against his fellow-guardian ; and he added that one 
magistrate is given the same action against another, only however 
where he is not himself privy to the malpractice ; from which it 
follows that tlie same rule applies equally in the case of a sub- 
curator. 

Papinianus {Responsa 2) A man gave a mandate to a 

freedman or a friend to borrow some money. The lender, on the 
faith of the written instructions [which constituted the mandate], 
entered into the contract, and repayment was guaranteed by a 
surety. Here, although the money was not spent on behalf of the 
party first mentioned, nevertheless the lender or the surety will be 
alloAved an action against him on negotia gesta, modelled, in fact, 
on the actio institoria. 1. Amongst aifairs of Sempronius which a 
particular person managed was one in which Titius was interested, 
which the person in question managed without being aware of this 
fact. He will be liable to Sempronius in respect of that particular 
matter too, but he has a right to an order, on mere motion, for an 
undertaking to indemnify him in case he is sued by Titius, as the 
latter can claim a right of action. A similar rule applies to a 
guardian. 2. A case being ready for trial, but the defendant 
failing to appear, a friend of the defaulter volunteered to take it 
up, stating to the Court some reason for the other's absence. The 
friend will not be held guilty of negligence for not appealing if the 
case is decided against the absent man. Note by Vljyiaiviis : this is 
correct, as the judgment was against the defaulter ; at the same 
time, if the friend, when he defended the absent person, had had 
judgment given against himself, and then were to sue on negotia 
gesta, he might be called to account for not appealing when he 
had an opportunity. 3. Where a man manages another person's 
affairs, he is required to pay interest, that is, on the balance which 
he has after discharging necessary expenses. 4. A testator desired 
that certain freedmen should be paid a specified sum with a view 
to the expense of erecting a monument ; if any outlay is made 
beyond this amount, it cannot be lawfully claimed from the heir in 
an action on negotia gesta, nor yet on the ground oi Jideicommlssum, 
as a limit to the outlay was laid down by the testator's expressed 
intention. 5. The heir of the deceased guardian of a girl being his 



190 On negotia gesta (voluntary agency) [book hi 

son and under age, he is not liable in respect of his own guardian's 
management of any afiairs of the female ward of his father, but the 
boy's guardian can be sued in his own name in an action on iwgotia 
gesta. 6. If a mother should be led by natural affection to manage 
the affairs of her son in accordance with the will of his father, still 
she will not have the power to appoint an agent at her own risk to 
take legal proceedings, since she has herself no right to sue on 
behalf of her son, nor can she dispose of any part of his property, 
nor can she give a discharge to any debtor of the boy by receiving 
payment of the debt. 7- One of several [alleged] co-owners of a 
water-course defended a case in which the right to water was in 
question, and judgment was given in favour of the [owner of the 
alleged servient] tenement, still the party who defrayed such 
expense as was necessarily incurred and was reasonable in respect 
of the common interest has an action on negotia gesta. 

32 The same {Responsa 3) A surety, owing to a mistake which he 
made, took over [by assignment from the creditor] certain pledges 
or hypotheks referring to a different contract in which he was 
himself not concerned, but he paid both debts to the creditor, 
thinking that he could provide for being indemnified by consolidat- 
ing his landed securities [against the debtor]. It would be useless 
thereupon [for the debtor] to sue him on mandatum, and equally 
so for him to sue the debtor ; but each of the parties must have 
recourse to an action on negotia gesta against the other ; on the 
trial of which negligence alone need be taken into account, not 
accident as well, as the surety cannot be held to be a depredator. 
The creditor cannot on the ground of the above be held liable to 
an action founded on pledge [at the hands of the debtor], for 
restoration of the property pledged, as he appears to have sold his 
own legal position. 1. A mother took presents made to her daughter 
by the man who was betrothed to her, and that without the know- 
ledge of the girl : as in this case the daughter has no action on 
mandatum or depositum, she can sue on negotia gesta. 

33 The same (Responsa 10) The heir of a deceased husband 
cannot bring an action against the widow for despoiling an inherit- 
ance {comjnlatcB hereditatis), where during the marriage she had 
the husband's property in her possession. Consequently his wisest 
course will be to bring an action against her for production (ad 
exhibeudum) and on negotia gesta, supposing she really managed 
her husband's affairs. 



TIT. v] On negotia gesta {voluntai'y agency) 191 

Paulus {Questions 1) Xesennius Apollinaris sends greeting 
to Julius Paulus. A woman managed aifairs for her grandson, and 
the grandmother and grandson being both dead, the heirs of the 
former were sued by the heirs of the latter in an action on negotia 
gesta, but the heirs of the grandmother claimed to set off mainten- 
ance given to the grandson. To this it was replied that the grand- 
mother had furnished the maintenance out of her own property in 
compliance with the demands of natural affection ; as she never 
applied for an order to settle the amount to be given for mainten- 
ance, nor was any such order made. Besides this it was said that 
there was an express rule that where a mother supported her child 
she could not sue to recover the cost of maintenance which her 
natural affection had induced her to provide at her own expense. 
To this it was answered on the other hand that this rule would 
fully apply wherever it was shown that the mother afforded the 
support out of her property ; but, in the present case, where the 
grandmother carried on her grandson's affairs, the chances were 
that she had supported him out of his own property. The question 
was entertained whether the expense should be held to have been 
defrayed out of both properties. I wish to know what you think is 
the fairest conclusion. My answer was as follows. This whole 
question turns on matters of fact. Indeed I should say that 
even the rule laid down for the case of a mother is not one to 
be observed without exception. Suppose, for instance, she made a 
formal declaration that she was maintaining her son with the 
express intention of bringing an action against himself or his 
guardians. Or take the case of the father dying abroad, and 
the mother, in expectation of his return home, supporting the 
son and the household slaves ; in which case the Divine Antoninus 
Pius laid down that an action should be allowed against the boy 
himself on 7iegotia gesta. Accordingly, the question being one 
of fact, the grandmother or her heirs have, I should say, a good 
right to be heard on an application for leave to set off the cost of 
the maintenance, especially if it appears that the grandmother 
actually entered the items in the account of expenditure. With 
regard to the view that the expense might be held to have been 
incurred out of both properties, that, I should say, is altogether 
inadmissible. 

Sc^voLA {Questions 1) A divorce having taken place, the 
[former] husband managed affairs on behalf of the [former] wife ; 
in this case the woman can recover her dos not merely by an action 



192 On negotia gesta {voluntary agency) [book m 

for dos, but by an action on negotia gesta : that is, always provided, 
in the case of the latter action \ that the husband had enough 
means to be able to hand over the dos during the time of his 
management ; if not, he cannot be made accountable for not 
charging himself with it. However, even after the loss of his means, 
there will still exist a full right of action against him on negotia 
gesta, though if the husband should be sued in an action for dos, 
the case must be dismissed. But some limit has to be observed in 
the action on negotia gesta, that is to say, the action which asks for 
relief 'Ho the extent of the defendant's means, though he after- 
wards lost them"^ is only admissible where he was able to pay 
throughout the time of management ; as he was not at once guilty 
of any shortcoming in respect of his duty because he did not 
immediately sell his property to realize the sum required ; in short, 
[to make him in default,] some interval must be allowed to elapse 
during which he appears to have done nothing. If, in the meantime, 
before the party has completely discharged his duty of management, 
the dotal property is lost, he is as little liable [for it] on negotia 
gesta as if he never had been able to hand it over at all. Indeed 
even if the husband's means are sufficient, the action on negotia 
gesta is [liable to be] disallowed, because there may be a danger of 
their ceasing to be sufficient^. 1. But we do not admit the pro- 
position that a man who manages affiiirs of his debtor is bound 
to restore property pledged to himself for debt where the money 
is still owing, and he has not got enough in his hands [in pursuance 
of the management] to be able to pay himself. 2. Again a case of 
redhibition is not merged in the right of action on negotia gesta ; 
consequently the actio redhihitoi^ia is lost at the end of six months, 
if he [, the vendor who managed the affairs of his purchaser,] did not 
find the slave sold amongst the property of the other, or, supposing 
he did find him, did not find, and so did not recover, such additional 
property as went with the slave by way of accession, or whatever 
was necessary to make up for any fall in the value of the slave, or 
any acquisitions througli the slave otlierwise than out of tlie pro- 
perty of the purchaser, there not being enough realized out of the 
actual affairs of the purchaser under management for the vendor 
to recoup himself at once. 3. At the same time if the person 
managing the affiiirs is debtor to the principal on some other 
ground, and the obligation is not liable to fail by lapse of time, 
and he has ample means, he cannot be charged with default for not 

1 Transfer si to the place after gestis. Cf. M. 
2 Inverted commas after M. ^ After facere ins. posse. M. 



TIT. vj On negotia gesta (voluntary agency) 193 

paying this debt, at any rate so long as the claim that he should do 
so is not founded on any ground connected with the question of 
interest. The rule is different where a guardian was debtor to 
his ward, as there the ward has an interest in the earlier debt 
being paid, so as to put present debt on the right of action on 
tutela. 

Paulus {Questions 4) If a free man who is serving me in 
good faith as a slave borrows money and bestows it to my advantage, 
let us consider what is the action by which I can be compelled to 
restore the money so spent to my advantage ; as the man did 
not manage the matter on my behalf as if I were his friend, but as 
if I were his owner. However the proper action to allow is that on 
negotia gesta, and this ceases to be available as soon as the money 
is paid to the lender. 

The same {Sentences 1) Where affairs of a ward have been 
managed without the concurrence of his guardian, [and the party 
managing brings an action,] an inquiry is commonly made at the 
time of litis contestatio as to whether the ward is the richer by 
the matter in respect of which he is being sued. 1. Where a man 
manages for another some pecuniary affair, he is compellable 
amongst other things to pay interest, and to bear the risk of all loss 
on such demands as he has acquired by any contracts he made 
himself, save where, owing to accidental circumstances, the debtors 
have become so destitute of means that at the time of litis con- 
testatio in the action against him they are not able to pay. 
2. Where a father has managed property of his son which the son 
acquired by free gift fi'om the father himself, he will still be liable 
to the son in an action on negotia gesta. 

Tryphoninus {Disputatious 2) A man who owed money 
without interest managed affairs for his creditor. The question was 
asked whether in an action against him on negotia gesta he could 
be made to pay interest on the money referred to. My answer 
was, — if it had been his duty [as representing his creditor] to get 
payment of the money from himself [as debtor], then he would be 
bound to pay interest ; but if the time for paying the money had 
not arrived during the period of his management of his creditor's 
affairs, he would not be bound to pay interest ; still, if, the day for 
paying having past, he did not debit himself in the accounts he 
gave to the creditor whose affairs he carried on with the sum of 
money which he owed him, he would in justice have to pay interest, 
being sued in a bona fide action. Let us consider then what the 

M. J. 13 



194 On negotia gesta (voluntary agency) [book hi 

scale of interest will be. Will it be the rate which the creditor 
himself could have got by lending the money at interest to someone 
else, or must he pay on the highest scale ? the fact is that where a 
man appropriates to his own uses money belonging to someone to 
whom he is guardian or whose affairs he is carrying on, or, say, a 
municipal magistrate does the same with the funds of the munici- 
pality, he has to pay interest on the highest scale, as has been 
enacted by Divine Emperors. Still it is a different case where the 
party did not possess himself of money which was derived from the 
management which he was engaged in, but had borrowed it from 
his friend before he undertook the management of that friend's 
affairs. The persons to whom the above enactments refer were 
bound to exercise good faith without any remuneration, at any rate 
good faith which was absolute and without any profit to themselves, 
consequently, where ^ they are found to abuse their opportunities, 
they are compellable to pay interest on the highest scale by way of 
inflicting on them some kind of penalty ; but the person whose 
case we are discussing received money by way of loan from the 
other in a straightforward way, and the reason why he may be 
ordered to pay interest is simply that he did not pay the principal, 
but not that he appropriated money which was derived from the 
business which he was managing. On the other hand it makes 
a great deal of difference whether money has just begun to be owed 
or the claim on the debtor is of some standing, the latter circum- 
stance being enough to make a debt bear interest which otherwise 
would not bear it. 

39 Gaius {on verbal obligations, 3) Anyone who pays on 
another's behalf discharges the debt, even where the other refuses 
to consent or is unaware of the payment : but money which is 
owing to one man cannot be legally demanded by another A\1thout 
the consent of the first. In fact both common sense and legal 
principle establish that you may make another man's condition 
better even Avithout his knowledge or against his will, but you are 
not at liberty to make it worse. 

40 Paulus {on Sahinus 10) If I have a house in common with 
you, and I give a neighbour security against damnum infectum in 
respect of your share, the proper view is that if I have to pay 
anything, the action I can bring against you is rather that on 
negotia gesta than communi dividnndo, because it was in my 

' For qua read quia. Cf. M. 



TIT. v] Oil negotia gesta {voluntary agency) 195 

power to defend my own share Avithout being obliged to defend 
that of my fellow-owner. 

The same {on the Edict 30) A man who defends my slave 
in a noxal action without my knowledge or in my absence, can sue 
me on negotia gesta for the whole amount, not merely to the extent 
of the slave's 2yeGulmm. 

The same {on the Edict 32) You undertake affairs of mine 
at the request of my slave. If you do this merely at the suggestion 
of my slave, there mil be an action on negotia gesta between you 
and me ; but if you do it as on a mandate from my slave, there is 
authority for saying that you can bring an action de pecidio et de 
in rem verso against me. 

Labeo {Posteriora abridged by Javolemus 6) Whereas 
you paid money on behalf of a man who gave you no niandatmn 
to do so, you have a good action on negotia gesta, as the result of 
the payment was that the debtor was released from his creditor ; — 
unless indeed the debtor had some interest in the payment not 
being made. 

Ulpianus {Disputations 6) Where a man out of friendship 
for the father applies to have guardians appointed to the children 
under age, or takes proceedings for removing guardians of doubt- 
ful character, lie has no action against the children, according to 
the enactment of the Divine Severus. 

The same {Opinions 4) Where an outlay is made [by a 
voluntary agent] on anyone's affairs, mth beneficial result, which 
outlay comprehends expense honourably incurred for the acquisi- 
tion of public offices such as are taken by successive steps, the 
money may be recovered by an action on negotia gesta. 1. Persons 
who have received their liberty by will unconditionally are not 
compelled to render an account of a course of management which 
they carried on in the lifetime of their previous owners. 2. Titius 
paid money to the creditors of an inheritance under the impression 
that his sister had succeeded as testamentary heir to the deceased. 
Although his notion in doing so was that he was managing the 
affairs of his sister, whereas, as a matter of fact, he had acted in 
the interest of the sons of the deceased, who were sui heredes to 
theii" father, as soon as the testament was out of the way ; still, as 
it is only just that he should not be exposed to loss, it was held 
that he could sue for the amount in an action on negotia gesta 
[against the latter]. 

13—2 



196 Oil negotia gesta {voluntary agency) [book iii 

46 Africanus {Qiiestions 7) You commissioned my son to buy 
land for you ; and being made aware of this fact, I bought it for 
you myself. It is, I should say, an essential question what was my 
intention in buying it. If the case was that I made the purchase 
for the sake of supplying yo\i with something which I knew you 
required, and I also knew your mind to be such that you would be 
glad to have the land as purchaser, then we have reciprocal rights 
of action on negotia gesta, just as we should have, supposing either 
there had been no mandate given in the matter, or you had given 
a mandate to Titius, and I, thinking I could carry the business 
through more conveniently than he could, had purchased it myself. 
But if my object in purchasing was to prevent my son being liable 
to an action on mandatum, then I should say on the whole that I 
could, as representing my son, bring an action on mmidatum 
against you, and you in the same way would have an action against 
me de peculio; since, even if Titius had undertaken the commis- 
sion, and, to save him from liability in respect of it, I had made 
the purchase myself, I could sue Titius on negotia gesta, and you 
and he could sue one another on mafidatum. The case would be 
the same if you were to give my son a mandate to be surety for 
you, and I were to be surety for you myself. 1. If the case 
suggested is that you gave Titius a mandate to be surety for you, 
and that, whereas he was from some cause or other hindered from 
being surety, I, in order to relieve him of his promise, became 
surety, then I have a good right of action on negotia gesta. 

4JI Paulus {Sentences 1) The action on negotia gesta is given 

to whoever has an interest in taking proceedings in that particular 
form. 1. Whether the action which is brought by or against the 
party is direct or utilis is of no importance, since in the extra- 
ordinary procedure, where the drawing up of formulas is not now 
practised, there is no occasion for such niceties, especially con- 
sidering that both kinds of action are of the same force and 
produce the same effect. 

48 Papinianus (Questions 3) If a brother, even without his 
sister's knowledge, by way of acting in her interest, stipulates with 
her husband for dos, he can be legally sued by her in an action on 
negotia gesta to compel him to release the husband. 

49 Africanus [Questions 8) If a slave whom I sell steals 
something from me, his vendor, thereupon the purchaser sells the 
thing, and, subsequently, it ceases to exist, an action on negotia 



TIT. v] On negotia gesta {voluntary agency) 197 

gesta must be^ allowed me for the price, just as it would have to 
be allowed, supposing you had managed some affair thinking you 
were acting in your own interest whereas you really acted in mine ; 
or just as, conversely, you would be allowed an action against me, 
if you fancied that some inheritance belonged to you as heir which 
really was mine, and you had accordingly handed over to someone 
else property of your own which the testator had bequeathed; 
seeing that I should thereby be released from the obhgation of 
some time or other" making the transfer thereof. 



VI. 

On vexatious actions. 

Ulpianus {o7i the Edict 10) Where a man is alleged to 

have received money in order that he should give trouble or 
forbear to give trouble with a vexatious intent {calumnice causa) 
there is a good right of action in factum against him during one 
year for fourfold the sum of money which he is alleged to have 
received ; and a similar action after the expiration of the year, for 
the actual sum. 1. According to Pomponius, this action is not 
only good in pecuniary cases but applies to criminal {imhlica) 
charges too, especially considering that a man who takes money 
for giving or forbearing to give trouble with vexatious intent is 
liable to proceedings under the lex repetimdarimi. 2. A man who 
has received money is equally liable whether he received it after 
joinder of issue or before. 3. Moreover an enactment of the 
present Emperor, addressed to Cassius Sabinus, forbids the giving 
of money to the judex or to the other party, whether the case is 
public, private, or fiscal, and, where such an act is done, it lays 
down that the right to proceed is lost. It is no doubt a fair question, 
supposing the other party took the money by way of compromising 
the case and not vexatiously, whether the enactment still applies ; 
and I should say it does not, just as the above action itself is gone ; 
there is no prohibition of compromises, but only of vile acts of 
extortion. 4. A man will be deemed to have received money 
even where he received something else instead of money. 

1 For sit read est. Cf. M. 

* For quandoque read qiiando quidem. Cf. M. 



198 On vexatious actions [book hi 

2 Paulus [on the Edict 10) Moreover where a man is released 
from an obligation, this may be regarded as a case of receiving 
money, similarly where money is lent him without interest, or 
property is let or sold under its value. And it is immaterial 
whether he receives the money himself, or requests that it should 
be given to some one else, or ratifies the acceptance of it by some- 

•one else on his behalf 

3 Ulpianus {on the Edict 10) Speaking generally, this rule 
applies to all cases where a man gets any benefit at all with a view 
such as described, whether he receives it from the other party or 
from someone else. 1. Accordingly, where he took money that 
he might give trouble, he is liable whether he gave trouble or not, 
and equally so where he took it that he might not give trouble, 
though he gave trouble. 2. The Edict applies also to a man 
who has made a ^ depectum' which word means a dishonourable 
pactum (agreement). 3. One point to be noted is this. A man 
who has given money in order that someone should be put to 
trouble has no action to recover it himself, because his own conduct 
was dishonourable ; the action is allowed to the person with respect 
to whom the money was given with a view to vexatious con- 
sequences to him. Consequently if anyone has money given him 
by you as an inducement to give me trouble, and by me as an 
inducement not to do so, he will be liable to two actions at my 
hands. 

4 Gaius {on the provincial Edict 4) This action is not open 
to the heir, because it ought to be enough for him that he has an 
action to recover the money which was paid by the deceased : 

5 Ulpianus {on the Edict 10) but it is good against an heir 
to the extent of whatever has come to his hands. It is in fact 
settled law that heirs can be compelled to give up dishonourable 
gains as well as the receivers, though criminal charges would be 
too late ; for example, anything given as an inducement to falsifi- 
cation {ob falsum), or given to a judge to procure a partial decree 
the heir can be compelled to give up, as he may anything else 
acquired in a flagitious manner. 1. Besides the above action there 
is also a good right of condictio, assuming that the only dishonour- 
able behaviour in the case is that of the party who receives ; if the 
party who gives is equally guilty, then the one in possession is in 
the better case. Supposing then the money is recovered by a 
condictio, is the action above mentioned taken away, or is it to be 



TIT. vi] On vexations actions 199 

allowed for threefold the amount, or is the action for fourfold 
allowed and the condktlo too, as in the case of a thief? I should 
say however that one or other of the two actions by itself is 
enough. But where the coiulictio is open, there is no occasion to 
allow the action in factum after the expiration of a year. 

Gaius {o7i the jjroviueial Edict 4) With regard to the year, 
in the case of a person who gave money to prevent an action being 
brought against him, it begins to run from the day on which he 
gave the money, provided he then had the power of suing to 
recover it. But in the case of a person in respect of whom another 
gave money to procure proceedings being taken against him, it 
may be a matter of question whether the year ought to be reckoned 
from the day when the money was given, or whether it ought not 
rather to be from the day when the party in question knew it was 
given ; since a man who does not know of the ground that there is 
for taking proceedings cannot be held to have the power of taking 
them; and the better opinion is that the year is reckoned from 
the day when he first knew. 

Paulus (on fJie Edict 10) If a man has money given him 
by another as an inducement not to give me trouble, then, if it 
was given in pursuance of a mandate from me, or by my general 
procurator, or by someone who volunteered to act on my behalf 
and whose act was ratified by me, I am deemed to have given it 
myself. But if the other did not give it on my mandate, even 
though he did it out of concern for me to prevent the trouble, and 
I have not ratified, then it is held that the party who thus paid 
can recover the money and I have the action for fourfold. 
2. Where a jniblicaims retained a man's slaves, and money was 
paid him which was not lawfully owing, he too is liable to an 
action in factum on the above clause in the Edict. 

Ulpianus (Opinions 4) If it should be thoroughly proved 

to the proper judge in the case that money was taken from a 
person who was innocent, on pretence made of some criminal 
charge which was not established against him, the judge must 
order the sum thus illegally extorted to be restored, in accordance 
with the terms of the Edict dealing with the case of such persons 
as are alleged to have received money as an inducement to give 
trouble or to forbear from giving it ; and he must inflict a penalty 
on the guilty party proportionate to his offence. 



200 On vexatious actions [book iii 

Papinianus {on adulteries 2) Where a slave is accused, if 

application is made, he is examined by torture; and, if he is 
acquitted, the accuser is ordered to pay the owner double the 
value of the slave ; besides which an inquiry is made as to vexa- 
tious proceeding on the part of the accuser, apart fi-om any 
estimate of the slave's value ; as the charge of vexatious conduct 
is independent of any question of the loss incurred by the owner 
in respect of the slave in consequence of the torture. 



FOUKTH BOOK. 

I. 

On restitutions in integrum. 

Ulpianus {on the Edict 11) The practical character of this 
title need not be dwelt on, it is plain in itself. Under this title the 
praetor gives relief on a number of different occasions to persons 
who have made a mistake or have been circumvented, whether they 
were put to a disadvantage by intimidation, or craft, or their youth, 
or their absence, 

Paulus {Sentences 1) or a change of status, or excusable 
error. 

MoDESTiNUS {Pandects 8) Wherever restitution in integrimi 
is promised by the praetor it is always on cause shown, so that he 
may examine into the sufficiency of the causes alleged, and see 
whether the particular case^ is of a kind in which he gives relief. 

Callistratus {monitory Edict 1) I know it is the practice 
of some magistrates not to listen to one who asks for restitution 
in integrum in respect of any very trivial matter or amount, if this 
would prejudge the case of some matter or amount of more 
importance. 

Paulus {on the Edict 7) In any case in which the praetor 
promises that he will give anyone restitution in integrum, no one 
is held to be barred ffrom proceeding in the matterf {nemo videtur 

re exclusus). 

Ulpianus {on the Edict 13) Restitution in integrum may 
be given to the successor on the death not only of a minor, but of 
a man who had been absent on business of the State, indeed of any- 

1 For verce read vere eoe. Cf. M. 



202 On occasions of restitution in integrum [book iv 

one who could himself have got such restitution : this has very 
often been laid down. Accordingly whether the applicant is an 
heir, or is a person to whom an inheritance has been handed over 
[in pursuance of a Jideicommissimi], or is successor to a Jilitis- 
famillas who was a soldier, he can get restitution. On the same 
principle where minors, male or female, are reduced to slavery, 
their owners will be granted restitution in integrum, subject always 
to the limitation laid down as to time. Indeed, if it should happen 
that a minor, under the above circumstances, had been put to a 
disadvantage in respect of an inheritance upon which he had 
entered, then, as we learn from Julianus (Dig. 17), his owner will 
be allowed to repudiate, not merely in consideration of his youth 
but even without there being his youth in his favour; the fact 
being that patrons of freedmen may have put their statutable rights 
in practice not with a view to acquiring the inheritance themselves, 
but in order to punish the freedmen. 

7 Marcellus {Digest 3) The Divine Antoninus, in a rescript 
addressed to INIarcius Avitus the prsetor on the question of relieving 
a man who had lost property through absence, expressed himself 
as follows: "It is true that no variation should be made lightly 
from the regular practice ; still relief ought to be given where plain 
justice requires it. If therefore the party failed to appear when 
called upon, and thereupon judgment was given in the usual form, 
but he, very shortly afterwards, applied in Court before you had 
risen, it may be supposed that his previous default was not due to 
his own negligence, but to the fact that he did not thoroughly hear 
what the officer said ; accordingly he can have the order for 
restitution." 1. Aid of this kind is in fact not confined to cases 
such as mentioned ; relief ought to be given to any persons who are 
deceived without fault of their own, especially where there is some 
fraud in the case on the part of their opponents, as there is always 
a good right of action for dolus mains, and it is the part of a good 
pra3tor rather to allow a new trial (restituere litem), as both reason 
and justice require, than to compel the party to bring an action 
involving infamla, a resource to which recourse should be had only 
where the case is one which admits of no other remedy. 

8 Macer {on appecds 2) There is this diiference between the 
case of minors under twenty-five and that of persons absent on 
State business, that minors, even where they were defended by 
their guardians or curators, may still get restitution in iyitegrum 
against the State {rem j^iMicam), of course on due cause shown ; 



TIT. i] On occasions of restitution in integrum 203 

but with regard to persons who were absent on State business, and 
any others who are put upon the same footing, if they were defended 
by their ijrocurators, the practice is that they are only so far 
relieved by way of restitution in integrum as to be allowed to 
appeal. 



11. 

Acts done through fear. 

Ulpianus {on the Edict 11) The prsetor says: "Where an 
act is done through fear I will not uphold it." The old terms of 
the Edict were ''force or fear." The word force {vis) was introduced 
to express compulsion applied in opposition to the party's will; 
fear {metus) was held to mean mental trepidation on the ground of 
urgent or apprehended danger. But afterwards the mention of 
force was left out for the reason that anything which is done by 
unmitigated force may be held to be done through fear too. 

Paulus {Sentences 1) Force {vis) is an attack by some over- 
powering agency such as cannot be withstood. 

Ulpianus {on the Edict 11) This clause therefore comprises 
both force and intimidation, and where a man has done any act 
under forcible compulsion he can get restitution by this Edict. 
1. But by force we understand force which is outrageous and such 
as it is against good morals to use, not force which is rightfully 
applied by a magistrate, that is to say, in pursuance of established 
law, and the right attached to the office which he bears. Neverthe- 
less, if a magistrate of the Roman people or the governor of a 
province has in any case acted illegally, then, according to 
Pomponius, this Edict will apply to the case; suppose, he says, 
a magistrate should extort money from anyone by threatening him 
with death or stripes. 

Paulus {on the Edict 11) I should say myself that the fear 
of enslavement or any similar evil must be included. 

Ulpianus {on the Edict 11) Fear, according to Labeo, must 
be understood to mean not simply any apprehension whatever, but 
fear of some evil of exceptional severity. 

Gaius {on the provincial Edict 4) The fear which we nmst 
hold to be referred to in this Edict is not the fear felt by a weak- 



204 Acts done through fear [book iv 

minded man, but such as might reasonably occur even in the case 
of a man of thorough firmness of character. 

Ulpianus (on the Edict 11) Pedius says (b. 7) that this 
Edict does not comprise apprehension of Infamia, and that no fear 
of annoyance aifords ground for restitution under the Edict. 
Similarly where some nervous person is under groundless appre- 
hension of what is really nothing at all, he will not get restitution 
under this Edict, as no act has been done with force or intimidation. 
1. Again, if a man who is detected in the act of theft or adultery, or 
any other outrageous offence, either gives away property or binds 
himself in any way, Pomponius says very truly (b. 28) that the case 
is within the purview of the Edict, as the man was in fear of death 
or imprisonment. It is true that it is not always lawful to kill 
an adulterer or a thief, unless he defends himself with a weapon ; 
still there was a possibility that such oflfenders might be killed, 
even though it were not lawful, and so their fear might be well 
grounded. Again, if such a one should part with his property to 
avoid information being given by someone who detects him, it 
is held that he may have the benefit of this Edict, because, if 
information were given, he might be exposed to the penalties above 
mentioned. 

Paulus {on the Edict 11) In such a case the party wlio 
detects no doubt comes under the lex Jidia, as he accepted some- 
thing [as hushmoney] for a detected act of adultery. But the 
praetor is bound to step in to compel restitution as well ; as the act 
of the party receiving is against good morals, besides which the 
prajtor does not concern himself with the question whether the 
man who gave is an adulterer or not, he only looks at the fact that 
the other acquired by putting a person in fear of his life. 1. If a 
man takes money from me by means of a threat to deprive me of 
the written evidence of my status if I refuse to pay, there is no 
doubt that this is an extreme case of intimidation ; at any rate, if 
l^roceedings are already pending to establish that I am a slave, and 
there is no possibility of my being pronounced a free man if the 
documents in question are gone. 2. If a man or a woman makes 
a gift to avoid stwprum, the Edict applies, inasmuch as to persons 
of character such a fear ought to be worse than that of death. 
3. In the above cases which I said came under the Edict it makes 
no difference whether a man is apprehensive on his own account or 
on behalf of his children ; indeed parental affection makes people 
feel stronger alarm on their children's behalf than on their own. 



TIT. ii] Acts do7ie through fear 205 

Ulpianus {on the Edict 11) We must take fear to mean 
present alarm, not the surmise that intimidation may be exercised ; 
this we find in Pomponius (b. 28) ; what he says is that we must 
understand the meaning to be fear excited — in short a case where 
apprehension has been excited by some person. Following this 
up, he discusses this case : Suppose I abandon my land on the 
report that someone is coming to attack me with arms, is this 
a case where this Edict will apply ? To this Labeo, he says, holds 
that it is not ; nor is it a case for the interdict unde vi ; I cannot 
be held to be ejected by force, as I did not wait to be ejected, but 
took to flight. It would be a dififerent case [so, he says, Labeo 
holds] if I only took my dejiarture after an entry was made by 
armed men ; that would really be a case for the Edict. He 
[Pomponius] also says that if the case which occurs is that you 
get together a band of men and build on my land by force, then 
the interdict quod vi ant clam and the Edict under discussion will 
both apply ; because, in short, w^hat makes me allow you to do it is 
that I am put in fear. Again, if I deliver up possession to you, 
owing to the use of force, this^ Edict, according to Pomponius, will 
apply. 1. It should be observed that in the Edict the praetor 
speaks in general terms and in rem ; he does not go on to say by 
whom the act is supposed to be done : consequently, whether it is 
a single individual who excites the fear, or a mob, or a municipal 
body, or a guild, or a corporation, it will be a case for the Edict. 
At the same time, though the praetor includes the case of any use 
of force, no matter by whom, still Pomponius says, with some nice 
discrimination, that if I accept something from you or induce you 
to bind yourself to something as a consideration for protecting 
you against the violence of enemies or brigands or a mob or 
procuring your liberty, I ought to be amenable to the Edict only 
where I w^as myself the author of the violence in question ; but, if 
I had nothing to do mth the violence, I ought not to be amenable ; 
I ought rather to be held to have simply received a consideration 
for my services. 2. Pomponius says further that it is well held by 
some that the act of manumitting a slave or of pulling down a 
house, where it is done on compulsion, is one which comes within 
the scope of the restitution provided by this Edict. 3. Where the 
prsetor says that he will not uphold the act, let us consider how 
this exactly applies. Now a transaction may in the first place be 
incomplete [in itself], though the party was put in fear ; for 
instance, take a case where a stipulation is made to repay a loan, 
1 Read huic for hoc, Cf. M. 



20G Acts done through fear [book iv 

but no money is thereupon advanced ; or, secondly, it may be 
complete, as where, on the stipulation being made, the money is 
advanced, or a debtor who puts his creditor in fear gets thereby a 
formal release of his debt, or there is some similar act which com- 
pletes the transaction. Hereupon Pomponius tells us that where 
the transaction is complete, the party sometimes has a good right 
to use either an exceptio or an action, but where it is incomplete 
he can only have an exceptlo. However, I know of an actual case 
in which certain Campanians by putting a man in fear extorted 
from him a written promise to pay money, and a rescript was made 
by the present Emperor to the effect that the party could apply to 
the praetor for a restitution lit integrum; whereupon the pra3tor 
declared, I being present myself, in the character of assessor, that 
if the applicant chose to bring an action against the Campanians, 
such an action was regular, or, if he preferred pleading an exceptlo 
to an action brought by them, it could be had. We may gather 
from this pronouncement of the Emperor, that whether the act 
is complete or incomplete, an action and an excejytlo are both 
equally available. 4. Moreover, if the party wishes, he can have 
an action in rem or in ^jersonam, the formal release, or whatever 
kind of discharge he gave, being rescinded. 5. Julianus {Dig. 3) 
expresses the opinion that when a man has procured delivery of a 
thhig by putting in fear, he is compellable not only to give it back, 
but to give a formal undertaking guaranteeing absence of dolus. 
6. Although however we hold that an action in rem must be 
allowed, because the thing dehvered belongs to the party to whom 
force was applied, still it is not unreasonably held that, if a man 
sues for fourfold damages, there is an end of the right of action 
in rem ; and the converse holds too. 7. The restitution, that is 
in Integrum, to be ordered in pursuance of this Edict by the judge's 
authority is on this wise : — where delivery of anything was made on 
compulsion (vc'), the thing must be redelivered, and, as already 
said, an undertaking by stipulation given against dolus, to provide 
for the case of the thing having been deliberately damaged; and, 
if there was a discharge given by way of formal release, the original 
contractual relation will have to be re-established ; in fact, it goes 
as far as this, that, according to Julianus {Dig. b. 4), if it was a case 
of money being owed, and a formal release was procured by force, 
then, unless either the money is paid or the position of debtor and 
creditor is re-established and in pursuance thereof issue is joined 
in an action, the party must be ordered to pay fourfold. Again, if 
I was comi^elled by force to promise by way of stipulation, there 



TIT. n] Acts done thro^igh fear 207 

will have to be a formal release of the stipulation. Similarly, if 
any usufruct or [real] servitude is lost, it will have to be re- 
established. 8. We may add that since the right of action we are 
discussing is expressed in rem, and does not lead to any coercive 
measure being applied to the person himself who exercised force, 
but the praetor's intention is that where anything is done by means 
of intimidation the right should be re-established against all alike, 
there is much reason in a remark made by Marcellus on a passage 
in Julianus, where the latter writer says that, if a surety uses force 
to extort a discharge of the debt by formal release, there Avill be 
no restitution granted of the right of action against the principal 
debtor, but the surety must be ordered to pay fourfold, unless 
he himself re-establishes the creditor's right of action against such 
principal debtor. Here Marcellus 's remark is the more sound in 
law ; the right of action, he says, will be good even against the 
fjrincipal debtor, as it is expressed in rem. 

Gaius {on the ijrovincial Edict 4) The following point is 
clear, that if the sureties are formally released through the act of 
a principal debtor who puts [the creditor] in fear, an action may 
be brought against the sureties themselves to make them renew 
their liability. If I give you a formal release of a stipulation, 
being compelled thereto by your putting me in fear, it is within 
the discretion of the judge before whom proceedings are taken 
under the Edict not only to order the obligation to be renewed in 
your individual person, but to make you furnish sureties, viz. either 
the same as before or others no less substantial, and besides this 
renew any pledges which you gave in the same matter. 

Paulus {Digest of Julianus 4 makes this note :) If a third 
person, without any sinister collusion on the part of the surety, has 
used force to procure that a formal release should be given to such 
surety, the latter will not be liable to renew the obligation of the 
principal debtor as well. 

Ulpianus {on the Edict 11) The other side must restore 
the children of female slaves, the young of cattle, and produce 
generally, and all accessions {causa) ; this is not confined to produce 
already taken, as, if I could myself have realised more, and I was 
prevented by intimidation, he must make this good too. 1. The 
following question may be raised : suppose the party who used 
force himself should have [in return] force used towards him, 
is it the intention of the prsetor that restitution should be ordered 
at his suit under this Edict of those things the property in which 



208 Acts done through fear [book iv 

he transferred to another? Pomponius says (b. 28) that the praetor 
ought not to assist him: force, he remarks, may be lawfully met 
with force, and thus he suffered the same thing that he inflicted. 
Accordingly, if a man compels you by threats to make him a 
promise, and then I compel him by threats to give you a formal 
release, there is no case for restitution at his suit. 2. Julianus 
says that a man who uses force to make his debtor pay him a debt 
is not liable under this Edict, on account of the nature of the 
action founded on putting in fear, which requires that loss should 
have been inflicted ; although it cannot be denied that the creditor 
in question comes under the terms of the lex Jidia de vi and has 
lost his right as a creditor. 

13 Callistratus {on judicicd inquiries 5) There is extant a 
decree of the Divine Marcus in these words : " The best course for 
you is, if you think you have any legal demand, to bring it to the 
test of an action," Here, on Marcianus saying, "I used no violence" 
{vis\ the Emperor replied, "Do you think there is no violence 
except where people are wounded ? It is just as much a case of 
violence wherever it happens that a man who thinks he has a right 
to something demands to have it given up without going to the 
Court. Accordingly, if anyone is shown to me to be in possession 
of or to have taken — recklessly and without judicial authority — 
anything belonging to his debtor, or money which was owing him, 
where it was not given him voluntarily by the debtor, and so to 
have laid down the law for himself in the matter, — he shall forfeit 
the right of a creditor." 

14 Ulpianus {on the Edict 11) Again, if I have a perpetual 
exceptlo which protects me against your demand, and, that being 
the case, I compel you to give me a formal release, this Edict does 
not apply, because you have lost nothing. 1. If the party refuses 
to make the restitution, the praetor promises to allow an action 
against him for fourfold : that is to say, four times the whole value 
which ought to have come by way of restitution. The pr?etor deals 
indulgently enough with the party in giving him an opportunity to 
make restitution, if he wishes to avoid the penalty. After a year 
he allows an action for the simple value, and that not as a matter 
of course, but only on cause shown ; 2. an essential point being, in 
the matter of showing cause, that this action is to be allowed only 
where no other is available, and, certainly, considering that, in 
a case of injuria inflicted by putting in fear, the right of action 
lapses in a year, that is, a year reckoned with allowances {tdllis), 



TIT. ii] Acts done through fear 209 

there ought to be some substantial ground to justify this action 
being still available after the expiration of the year. One example 
of there being some other right of action is the following : suppose 
the party to whom force was used is dead ; then his heir may have 
the hereditatis petitio, seeing that the party who used force is in 
possession '' as possessor," and, that being so, the heir will not have 
the right of action founded on putting in fear; true as it is that, 
if the year were still running, then the heir himself could bring 
proceedings for the fourfold damages. The reason why the action 
is given to successors is that it includes indemnity {rei habet 
pe7'secutionem). 3. In this action the question is not whether 
the party who put in fear is the defendant or someone else ; it is 
enough for the plaintiff to show that threats or force were used to 
him, and that the result was that the present defendant, although, 
it may be, no charge can be brought against him, still made gain. 
The truth is that fear prevents a man from realising the facts ; 
so that it is with good reason that he is not compelled to point 
out who it was that employed threats or force ; accordingly all that 
the plaintiff is compelled to do is this : he must show that 
intimidation was practised with the object of making him give 
someone a formal release for a debt, or deliver property, or in short 
do something or other. And it ought not to strike^ anyone as 
unjust that one man should be condemned to pay fourfold in 
consequence of an act done by another, because the action is not 
for fourfold at the outset ; it is only so where restitution is refused. 
4. This being an " arbitrarian " action, it is open to the defendant 
to make restitution of the thing at any time before the arbiter 
gives his judgment, in accordance with what has already been said 
and, if he declines to make it, it is agreeable to law and justice 
alike that he should pay fourfold. 5. Sometimes however, even if 
the case is one of intimidation being practised, the arbiter's decision 
allows the defendant to get off. Suppose Titius used threats with- 
out my privity, and property acquired by such means came into 
my hands, but it is now, through no illpractice of mine, no longer 
in existence ; will not the judge on motion let me go free ? Or 
suppose the property is a slave, and he runs away from me ; if the 
judge makes me give an undertaking that, should the slave get 
into my power, I will give him up, then equally I ought to be 
dismissed from the action, on motion to this effect. Accordingly, 
some hold that a bona fide purchaser who acquires from the party 
who used force is not liable, nor a donee or a legatee of the 
^ For videtur read videatur. Cf. M. 
M. J. 14 



210 Acts done through fear [book iv 

property. However, Viviaims maintains very correctly that persons 
in these positions are bound just as much, as otherwise I should 
be put to a disadvantage in law by the fact that I was put in fear. 
Pedius too (b. 18) says that the judge's authority in a case of 
restitution is such that he may make an order for restitution on 
a party who used force, though the property has come to the hands 
of another, or on the man to whose hands it has come, though the 
intimidation proceeded from another ; because no man must be 
allowed to derive a benefit from the fact that another put someone 
in fear. 6. Labeo says that if a man is compelled by being put 
in fear to contract an obligation, and he furnishes a surety who 
undertakes the ofiice freely, then he and the surety can both be 
discharged ; whereas, where the surety alone made the undertaking 
under threats, and not the principal, the surety alone will be 
discharged. 7. What is given fourfold is the value of the matter 
in hand, including produce and all accessions {pmnis causa). 

8. If a man engages under duress to appear to an action, and then 
finds a surety, the surety will be discharged as well as the party. 

9. If, on the other hand, a man constrains another by duress to 
make him a promise and, on refusing to execute a release, he is 
ordered by the judge to pay fourfold, then, if he sues on his 
stipulation, and is met with an exceptio, Julianus holds that he 
has a good replicatlo, because the fourfold which the defendant 
got includes the simple value. Labeo, however, laid down that, 
even after [he had paid the damages on] the action for fourfold, 
the party who imposed the duress would none the less be barred 
by the excejytio ; but as this appears^ harsh, it must be so far 
qualified in practice that he is liable to the penalty of being ordered 
to pay threefold, and is also in any case compelled to give a formal 
release. 10. With regard to the above statement that the fourfold 
damages include the simple value, the principle on which the 
different amounts are assigned is that the order to pay fourfold 
of course embraces the matter itself, and thus restitution thereof 
is effected, but the penalty is maintained to the extent of threefold. 
11. How will it be if [the property e.g.] a slave is lost or destroyed 
without any malice or negligence in the party who used the duress 
and on whom judgment was passed? In such a case, if the slave 
dies before an action can be brought on the judgment, there will 
be the less strictness observed as to enforcing the order, for the 
fact that the defendant is compelled to give satisfaction for his 
offence by a threefold penalty. But in the case of a slave who 

- Read videatur for videhatur. Cf. M. 



TIT. ii] Acts done through fear- 211 

appears to have taken to flight, the defendant must be forced to 
give an undertaking that he will pursue the man and give him up 
without fail ; and even then the party who suffered duress will 
retain to the full his right of action in rem, or for production, or 
whatever right of action he may have for recovering the slave, so 
that, if [he] such owner should by any means get the slave back, 
then, if the other party should be sued in pursuance of the under- 
taking, he has an exceptio which is a complete protection. All this 
applies where adverse judgment is already given ; but should the 
slave die before the decision without any malice or negligence in 
the defendant, the latter will still be liable^; this follows from the 
words of the Edict, [" If etc.] and such property is not restored in 
pursuance of the judge's pronouncement." Accordingly, if the 
slave has taken to flight without any contrivance or negligence 
in the defendant to the action, he Avill have to undertake in 
pursuance of the order of the judge that he will follow up the 
slave and hand him over. It must be added that even where 
the property is gone through no negligence of the defendant to the 
action, still, if it would not have been lost at all, supposing he had 
not got it from the other by putting him in fear, he will be liable ; 
this agrees with the practice in the case of an Interdict unde vi or 
quod vi aid clam. Hence it sometimes happens that a man will 
recover the price of a slave who is then dead, where, if he had not 
suffered duress, he would have sold him. 12. A man who uses 
duress to me, seeing that he gets possession by my act, is not a 
thief ; tliough a man who takes by force is a thief with circum- 
stances of aggravation ; so Juliauus holds. 13. Where a man 
puts in fear, it is clear that he is liable for dolus too — Pomponius 
says the same thing; moreover whichever action is first brought 
would be a good bar to the other, if pleaded by way of exceptio 
in factum. 14. Julianus says that the unit which is multiplied 
fourfold is simply the interest which the plaintifi" had, so that if a 
man who owed forty in pursuance of a Jideicommissum should 
promise under duress to pay three hundred and should pay it, 
he will recover four times two hundred and sixty, as this is the 
sum with reference to which the duress was really operative. 
15. It would follow from this that if several put in fear and an 
action is brought against one only, then, if the latter makes 
restitution without further compulsion before judgment, they are 
all discharged ; but, in fact, even if he does not do this, but pays 

'^ For tenehitur — will be liable — some would read non tenehitur — will not be 
liable. Cf. M. 

14—2 



212 Acts done through fear [book iv 

fourfold in pursuance of the judgment, the better opinion is that 
in this case too the action founded on putting in fear is at an end 
as against the others ; 

15 Paulus {on the Edict II) or an action will be allowed 
against the others for the amount by which what is recovered fi'om 
the one falls short of the whole sum due. 

16 Ulpianus (on the Edict 11) As for what was above said 
in reference to the case of several persons putting in fear, a similar 
rule holds where the property is transferred to one, but it was 
another that put in fear. 1. Where slaves put in fear, there will 
be a noxal action in respect of the slaves themselves, but an 
[ordinary] action can be brought against an owner [of the slaves], 
into whose hands the property comes ; and if, upon being sued in 
this action, he either gives up the thing, or, in accordance with 
what has been said, pays fourfold, this will relieve the slaves too. 
If however, on being sued in a noxal action, he prefers to surrender 
the slaves for noxa, this will be no bar to an action against him in 
his own person, if the thing has come to his hands. 2. This action 
is allowed to the heir of the party wronged, and to his successors 
generally, since it is an action for indemnity. It is allowed against 
heirs or successors in general to the extent of what has come 
to their hands ; which is reasonable, for though the liability to 
a penalty does not pass to the heir, still an advantage gained by 
dishonourable or outrageous means ought not to be a source of 
profit to the heir ; indeed there is a rescript to this effect. 

17 Paulus {Questions 1) Let us here consider this point. 
Where the heir, after something obtained as above has come to his 
hands, consumes what has so come, will he cease to be liable, or 
will the fact that the thing once came make him liable once for 
all? and, if he dies after consuming it, is there a good right of 
action against his heir, without further distinction, because he 
succeeded to a heritable indebtedness, or will no action be allowed 
because nothing came to the hands of the second heir ? The better 
opinion is that in any case the right of action holds against the heir 
of the heir ; it is enough that the thing once came to the hands of 
the original heir, and the right of action thereupon becomes perma- 
nent. On any other principle we shall have to say that the very 
heir who consumes what has come to him will not be liable to an 
action. 

18 JuLiANUS {Dig. 64) Where the actual thing which came to 
the party's hands is lost or destroyed, he is not, in the language 



TIT, ii] Acts done through fear 213 

of the law, enriched, but if it is converted into money or some 
other kind of propert}", there is then no further inquiry to be made 
as to what finally ensues, but the man is held to be enriched once 
for all, though he should after that lose what he got. The Emperor 
Titus Antoninus himself, in a rescript addressed to Claudius Fron- 
tinus on the valuation of things comprised in an inheritance, declared 
that he might very well be sued in a hereditatis 2>€,titlo on this 
very ground, that, although the things which were originally in- 
cluded in the estate were not in his hands, still, the mere^ value 
received for the things, seeing that the receipt made him the richer, 
however often a conversion might have taken place in respect of 
the individual objects, bound him just as much as if the actual 
things were still there in their original form. 

Gaius (pn the promncial Edict 4) With regard to the fact 
that the proconsul promises an action against the heir to the extent 
only of what comes to his hands, we must understand this to refer 
to the allowance of a perpetual right of action. 

Ulpianus {on the Edict 11) On the inquiry how much has 
come to the hands of the heir, we must consider the question with 
reference to the time of joinder of issue, supposing it to be clear 
that anything has come at all. It is the same where something 
so passes into the general bulk of the property of the party who 
used the unlawful force that it is certain that it will come to the 
heir ; in short, where a debtor is released. 

Paulus {on the Edict 11) AVhere a freedwomau after being 
guilty of ingratitude towards her patron, knows that this is the 
case, and, being thus in peril in respect of her status, gives or 
promises something to the patron, to avoid being reduced to slavery 
again, the Edict does not apply, because such a case of being put in 
fear is the woman's own act. 1. Where any act is done under 
intimidation, the praetor will not treat any lapse of time as a ground 
for upholding it. 2. Wliere the applicant delivered possession of 
land which was not his own, the unit of which he will recover four- 
fold or the simple amount, as the case may be, with the proceeds, 
is not the value of the land but the value of the possession of it ; 
the subject of valuation is whatever has to be restored, in short, 
what the applicant is kept out of, and that is, here, the bare 
possession mth the produce. Pomponius agrees with this. 3. If 
a dos is promised under intimidation, I should say that no obli- 
gation arises, there can be no doubt that such a promise of dos 

1 For quo read quoque. Cf. M. 



214 Acts done through fear [book iv 

is the same as none at all. 4. If I am compelled through fear to 
give up a purchase or a locatio, it is worth considering whether the 
transaction is null and void, so that the original contract remains, 
or the case is to be treated like tliat of a formal release, on the 
ground that one cannot in such a case rely on any hona fide^ obli- 
gation, any such being lost and so ended ; but the better opinion is 
that the case is like that of a formal release, consequently there 
is ground for a praetorian action. 5. If I am compelled by fear 
to enter upon an inheritance, I should say that I become heir, 
because, although I should have declined if I had had liberty of 
action, still, being compelled, I had the will to do it ; however I 
ought to get an order of restitution from the prsetor, and to be 
given the power to abstain. 6. If I repudiate an inheritance 
under compulsion, the praetor offers me two kinds of relief; he 
either allows utiles actiones in which I am put on the footing of 
heir, or else the action founded on putting in fear, so that it is 
open to me to adopt whichever course I choose. 

Paulus (Sentences 1) Where a man thrusts someone into 
prison in order to extort something from him, whatever act in the 
law is done under the circumstances is of no force. 

Ulpianus {O'pinions 4) It is not likely that a man would 
pay in the city under compulsion and unjustly a sum which he did 
not owe, if he showed that he had the rank of illustrious, inasmuch 
as he could appeal to the law of the land, and apply to someone 
endowed with authority, who would at all events have prevented 
him from having to submit to violence. The above presumption 
is so plain that in order to have it set aside he must show the 
clearest possible proofs that violence was used. 1. If a man, 
under well-grounded terror of a judicial inquiry to which a powerful 
opponent threatens to bring him in chains, sells, on such compulsion, 
something which he could have lawfully retained, the matter will 
be restored to its rightful position by the governor of the province. 
2. If a money-lender keeps an athlete in unlawful confinement, 
so as to prevent him from engaging in his professional contests, 
and thus compels him to undertake to pay a larger sum of money 
than he owes, the proper judge will, on proof of these facts, order 
the matter to be restored to its rightful position. 3. When a 
man is forcibly compelled, by the employment of the officers of 
the prceses, without any judicial proceedings first held, to j)ay a 
sum of money to one who claims under an assignment from a 

^ For honce fidei read hona fide. Cf. M. 



TIT. n] Acts done through fear 215 

person to whom the man first mentioned never owed the money, 
the Court will order the sum illegally extorted to be restored by 
the party by whom the applicant^ was wronged. But if he dis- 
charged his actual debts on a bare requisition being made and not 
in consequence of judicial proceedings, then, although the other 
ought to have recovered the money in the way prescribed by law, 
and not in an irregular manner, still it is not according to legal 
principle to reverse transactions which led to the party paying 
amounts which he owed. 



III. 
On Dolus malus. 

1 ULPiA2!fUS {on the Edict 11) In this Edict the prsetor gives 
assistance against shifty and deceitful people who use some kind 
of craft to the prejudice of other persons, his object being to 
secure that the former shall not profit by their cunning and the 
latter shall not be losers by their simplicity. 1. The words of 
the Edict are as follows : — " where acts are alleged to be done with 
dolus tncdus, then, if there is no other action available in the case, 
and there appears to be sufficient cause, I will grant a trial." 

2. Dolus malus is defined by Servius as follows : — a contrivance 
for the purpose of deceiving someone else in which one thing is 
pretended and another thing is aimed at. Labeo however says 
that it is possible, even without any pretence, for a man to aim 
at circumventing his neighbour ; and it is possible, he thinks, even 
without dolus malus, for one thing to be aimed at and another 
pretended, as is done by such as seek to promote or protect their 
own or other people's interests by the use of this sort of conceal- 
ment. Accordingly his own definition of dolus malus is that it is 
any craft, deceit, or contrivance, employed with a view to circumvent, 
deceive, or ensnare other persons. Labeo's definition is correct. 

3. The praetor was not content merely to say dolus, he added the 
word malus (bad), because the old lawyers used to speak of good 
dolus as well as bad, applying this expression as equivalent to that 
of " ingenious device," especially where anything was contrived 
against an enemy or a brigand. 4. The prgetor's words are : — 
"if there is no other action available in the case." The praetor 
does well to offer this action only where no other is open, as an 

^ For rei read ei. Cf. M. 



216 On Dolus malus [book iv 

action involving infamy ought not to be lightly ordered by the 
praetor if a civil or praetorian one is available by way of which the 
party might proceed ; so true is this that Pedius himself says (b. 8) 
that even where there is an Interdict given which a man can sue 
for, or there is some exceptio by which he can protect himself, this 
Edict will not apply. Pomponius says the same thing (b. 28), and he 
adds this : — even where a man is secured by means of a stipulation, 
he cannot have the action on dolus ; suppose, for example, there 
were a stipulation against dolus. 5. The same writer says further 
that where no action at all can be granted against a man, for 
example, where he has been induced by dolus malus to promise on 
stipulation under circumstances so dishonouring to the promisee 
that no magistrate would allow an action in pursuance of the 
stipulation, the promisor need not trouble himself to ask for an 
action on dolus malus, because no magistrate would allow an 
action against him. 6. Pomponius also reports that it was the 
opinion of Labeo that even where a man can get a restitution in 
integrum, the i^resent action ought not to be open to him ; again, 
that if some other right of action is lost by lapse of time, still the 
present action ought not to be allowed, as a man who omits to 
take proceedings in time has himself to blame for it ; unless 
indeed the dolus malus was committed with the very object of 
causing the lapse to take place. 7. Where a man who has some 
civil or praetorian right of action merges it in a stipulation and 
then puts an end to it by formal release or by any other means, 
he can take no proceedings on dolus, because he had a right of 
action of a different kind ; unless indeed it was by means of dolus 
malus that he lost the right of action. 8. It is not only where 
there is some other kind of action admissible against the party 
whose alleged malicious practice is the subject of inquiry, 

Paulus {o7i the Edict 11) or where the matter in hand 
can be secured by some means or other against him, 

Ulpianus {on the Edict 11) that this Edict fails to apply, 
this is equally the case where some other party 

Paulus {on the Edict 11) is liable to an action [which 
will meet the case], or where the matter in hand can be secured 
for me by proceedings in which the opposing party is someone 
else. 

Ulpianus {on the Edict 11) Consequently, if a ward is 
cheated by Titius, the fact being that his guardian acted in collusion 
with Titius, the ward ought not to have any action on dolus against 



TIT. ni] On Dolus malus 217 

Titius, because he has the action on tiitela against his guardian, 
by means of which he can recover an amount equivalent to his 
interest. No doubt if the guardian is insolvent, the proper view 
is that the ward can have the action de dolo ; 

6 Gaius {on the 2:)rovmcial Edict 4) as a man cannot be said 
to have an action open to him at all, when owing to the other 
party's want of means his action is worthless. 

7 Ulpianus (p7i the Edict 1 1) Pomponius somewhat acutely 
interprets the exception signified by the words "if there is no 
other right of action " as expressing the case of its being impossible 
for the matter in hand to be preserved for the person whom it 
concerns in any other way. It cannot be held that there is any- 
thing inconsistent with this view in what is laid down by Julianus 
(b. 4) that where a minor under twenty-five is induced by the 
fraudulent advice of his slave to sell him with his peculiiim, and 
the purchaser manumits him, the minor is allowed an action de 
dolo against the man manumitted, as we must understand the case 
to be that the purchaser is free from dolus, so that he cannot be 
held liable on his contract ; or that the sale is null and void, 
assuming that the minor's consent to the sale itself was procured 
by fraudulent manoeuvres. The fact that in this case the vendor is 
supposed to be a minor is no ground for a restitution in integrmn, 
as no such relief is allowed to be given against a manumitted 
person. 1. It follows from the above that where a man can 
take measures to save himself harmless by an action for damages, 
the rule to lay down is that the action de dolo does not apply. 
2. Pomponius indeed says that even if there is only an actio 
popidaris, the action de dolo is not available. 3. Labeo holds 
that the action de dolo ought to be allowed not only where there 
is no other action, but even where there exists a doubt whether 
there is another action or not. He mentions the following cases. 
A man who owes me a slave, in pursuance, say, of a sale, or a 
stipulation, makes the slave take poison and then delivers him ; 
or he owes me land, and pending delivery, he imposes a servitude 
on it, or pulls down buildings, or cuts down or roots up trees ; in 
all these cases, according to Labeo, whether he gave me an under- 
taking against dolus or not, an action de dolo is admissible, because, 
even if he did give such an undertaking, it is doubtful whether 
there is a good right of action on the stipulation. However the 
true view is, that, if an undertaking was given against dolus, there 
is no action de dolo, because there is an action ex stipulatu ; if 



218 On Dolus malus [book iv 

no such undertaking was given, then, in the case of an action ex 
empto, there is no action de dolo, because there is an action ex 
empto, but in the case of an action ex stipidatu the action de dolo 
is required. 4. If the bare proprietor of a slave in whom 
someone else has an usiis kills the slave, then, besides the action 
on the lex Aquilia, there is an action for production as well, 
supposing the bare proprietor was in possession when he killed 
the man ; consequently the action de dolo does not apply. 5. Again, 
if a slave is bequeathed by testament, and the heir kills him before 
entering on the inheritance, then, seeing that the slave was de- 
stroyed before he became the property of the legatee, there is no 
action under the lex Aquilia ; but there is no action de dolo, 
at whatever time he killed him, because there is a good right 
of action ex testamento. 6. If your beast does me a damage 
owing to the dolus of a third person, the question arises whether 
I have a good right of action de dolo against the latter. For my 
own part I am satisfied with what we read in Labeo, viz. that, 
if the party who owns the beast is not solvent, the action de dolo 
ought to be allowed, although, if due surrender was made for noxa, 
I do not think the action ought to be allowed, even for the difierence. 
7. Again, Labeo asks this question : — If my slave is in fetters and 
you loose him so as to enable him to run olf, have I an action de 
dolo against you? To this Quintus says in a note on Labeo, — if 
you did not do it out of compassion, you are liable for furtum, if 
you did, the proper action is in factum. 8. A slave produces to 
his owner a person who undertakes to be responsible for the 
performance of the agreement which the slave makes in consider- 
ation of acquiring his freedom, on the understanding, that when 
the slave becomes free, the liability is to be transferred to him ; 
but on being manumitted the [quondam] slave declines to allow the 
liability to be transferred. Pomponius says this is ground for an 
action de dolo. But if it is the patron's own fault that the obli- 
gation is not transferred, then, he says, the proper view is that 
the guarantor has a good exceptio to bar an action by the patron. 
A difficulty I have is this : how can an action de dolo be given, 
seeing that there is another action open ? It will however perhaps 
be said that inasmuch as, if the patron proceeds against the 
slave's guarantor {reus), the action will be barred by an exceptio, the 
correct view must be that an action de dolo ought to be ordered, 
on the ground that a right of action which can be defeated by an 
exceptio is no right of action at all ; at the same time the patron's 
action is only barred by the exceptio because he does not choose 



TIT. m] On Dolus malus 219 

to accept the manumitted man himself in the place of the guarantor. 
Of course the man who promised in the place of the slave ought to 
have an action de dolo allowed him against the manumitted man, 
or if the promisor in question should not be solvent, the original 
owner will be allowed such action. 9. If my procurator maliciously 
allows my opponent to get the better in an action, and so my 
case is dismissed, tlie question may be asked whether I have a 
good right of action de dolo against the party who thus gained the 
day. I should say that I have not, so long as the latter {reus) is 
wilhng to take over the defence of the case, reserving this excej)tio, 
" unless there was no collusion " [with the procurator] ; but other- 
wise an action de dolo must be allowed, assuming, that is, that it is 
impossible to proceed against the procurator, in consequence of his 
insolvency. 10. Again, Pomponius reports that the prsetor Csecidi- 
anus refused to allow an action de dolo against one who had 
declared that a particular person to whom a sum of money was to be 
lent was a substantial person ; and in fact the praetor was justified 
in refusing, as no action de dolo ought to be allowed save in a 
case of gross and plain overreaching. 

Gaius {on the provincial Edict 4) Where however, knowing 
that the party was in an impecunious condition, you, with a view 
to your OAvn gain, declared to me that he was a substantial person, 
an action de dolo will very properly be allowed against you, as you 
gave an untrue recommendation of a person with the intention of 
deceiving me. 

Ulpianus {on the Edict 11) Where a man declares that 
some inheritance is of very small value, and thereupon buys it from 
the heir, there is no action de dolo, as the action ex vendito will 
suffice. 1. But if you persuade me to repudiate an inheritance, on 
the alleged ground that it will not pay the creditors, or to choose 
some particular slave [in pursuance of a legacy], on the ground 
that there is no better slave in the household, then, I should say, 
an action de dolo must be allowed, supposing you do this with 
intent to deceive. 2. Again, if a testament is kept concealed for a 
long time, in order to prevent its being set aside as * inofficious,' 
but it is produced one day after the death of the [testator's] son, 
the son's heirs can take proceedings against the parties who con- 
cealed it, both under the lex Cornelia and by an action de dolo. 
3. Labeo says {Posteriora, b. 37), if Titius should maintain that oil 
belongs to him which as a matter of fact is yours, whereupon you 
deposit the oil with Seius for him to sell it and to keep the purchase- 



220 On Dolus malus [book iv 

money until the question is decided between you and Titius which 
of the two the oil belongs to, after which Titius refuses to join 
issue in the action, — in this case, seeing that you cannot sue Seius 
either on mandatum or as stake-holder, the condition subject to 
which the goods were put in his hands not having come to pass, 
there will be a good action de dolo against Titius. However 
Pomponius says (b. 27) that the stake-holder can be sued in an 
action 2^rescriptis verbis, or, if he should not be solvent, Titius can 
be sued de dolo, and this appears to be a sound distinction. 4. If 
in pursuance of the judge's intimation in a noxal action you 
surrender to me a slave whom you had hypothecated to someone 
else, and accordingly you go free ; still you are liable to an action 
de dolo, it being made clear that the slave was really pledged. 
4 a. This action de dolo is noxal, accordingly Labeo says {Prcetoi^ 
peregrinus, b. 30) that, where an action de dolo is granted in 
respect of a slave, it is sometimes de peculio and sometimes noxal. 
If the matter in connexion with which the dolus was committed is 
one for which an action would be given de peculio, then an action 
de peculio will be given in the present case ; if it is one for which 
the action would be noxal, this action will be noxal too. 5. The 
prsetor was quite right in inserting the mention of cause to be 
shown ; such an action is not one to be allowed without discrimina- 
tion ; for instance, to begin with, if the amount is small, 

10 Vaviaj^ {on the Edict \\) that is, not more than two awm, 

11 Ulpianus {on the Edict 11) the action ought not to be 
allowed ; 1. moreover there are particular classes of persons to 
whom it will not be allowed, for example, children or freed- 
men who desire to sue their paterfamilias or patron, the 
reason being that it involves infamia. Nor will it be allowed 
to a person of low estate against one of superior rank, for 
example, to one of plebeian status against a man of consular 
rank and acknowledged dignity, nor to a person who is dissipated 
and extravagant, or in any way of small account, against a man 
who leads an irreproachable life. Such is Labeo's own opinion. In 
short, it comes to this, in the case of the persons mentioned, 
the proper view is that an action should be allowed in fax^tum, 
worded carefully, so as to include a reference to bona fides, 

12 Paulus {on the Edict 11) because otherwise the persons 
above-mentioned might gain by their own dolus, 

13 Ulpianus {on the Edict 1 1) But the action de dolo will be 
granted to the heirs of the persons excluded, as well as against the 



TIT. in] On Dolus malus 221 

heirs [of the wrongdoers]. 1. We may add that, according to 
Labeo, one thing held essential when the case is inquired into is 
that no action de dolo is to be allowed against a ward, unless he 
should be sued in the capacity of heir. In my judgment he can be 
sued even on the ground of his own dolus, supposing he is very 
nearly of the age of puberty, especially if he is enriched by the 
transaction ; 

L4 Paulus {on the Edict 11) suppose, for instance, he should 

prevail on the plaintiff's 2Jrocnrator to let the action against him 
be dismissed, or should obtain money from his guardian on lying 
pretences, or should be guilty of any similar fraud which requires 
no elaborate contrivance. 

L5 Ulpianus (on the Edict 11) I should say too that an action 
ought equally to be allowed against a ward on the gr-ound of dolus 
committed by his guardian, if he (the ward) is enriched by it ; just 
as in the same case an exceptio is allowed [to an action by the 
ward]. 1. ^Vhether an action de dolo is allowed against a muni- 
cipal body is not clear. I should say that no such action can be 
allowed on the ground of dolus on the part of such a body ; hoAV 
indeed can a municipal body be guilty of dolus ? Still if anything 
comes to the municipality through the dolus of the agents who 
manage its affairs, then I should say the action ought to be allowed. 
But proceedings de dolo founded on dolus in the members of a 
curia are allowed against the individual members themselves. 

2. Again, if anything comes to the hands of a principal through the 
dolus of his procurator, an action de dolo is allowed against the 
principal to the extent of what comes to him ; of course there is 
no doubt that the procurator is himself liable for his own dolus. 

3. In this action it ought to be specified whose dolus it is by which 
the thing was done which is the subject of the proceedings, though 
in a case of putting in fear it is not required. 

16 Paulus {on the Edict 11) The praetor also requires that the 
plaintiff should describe what it is that was done with dolus malus; 
the plaintiff is bound to know what is the business in respect of 
which he was overreached, and not to shift his ground in making 
such a serious charge. 

17 Ulpianus {on the Edict 11) If several persons act -with 
dolus, and one alone makes restitution, all alike are discharged ; 
and if one pays an amount equivalent to the damage suffered, 
I should say so far that the rest are discharged. 1. This action is 



222 On Dolus malus [book iv 

allowed against the heir and successors in general only to the 
extent of what has come to their hands. 

Paulus {on the Edict 11) Moreover in this action the 
discretion of the judge comprises a right to order restitution ; and 
if restitution is not made judgment is thereupon given for an 
amount representing what the matter is worth to the plaintiff. The 
reason why no definite limits are laid down as to amount either in 
this action or in the action for putting in fear is that it is desired to 
make it possible, where the defendant is contumacious, that the 
damages which he is ordered to pay should be assessed at the sum 
which the plaintiff declares on oath to represent tlie amount of his 
interest in the matter ; though, in both cases, the oath may, on 
motion to the judge, be kept within limits by taxation of the 
amount. 1. However, it is not always the case in this action that 
the restitution of the property has to be left to the discretion of the 
judge ; suppose for instance it should be manifest that no restitu- 
tion can be made, — as in a case where a slave was transferred to 
the defendant through dolus malus on his part, and then died, — 
and accordingly that the defendant ought to be at once ordered to 
pay a sum representing the amount of the plaintiff's interest in the 
matter. 2. Where the usufruct in a block of chambers was left to 
a legatee and the bare proprietor sets fire to the block, there is no 
action dc dolo, because such a case would be a ground for actions 
of other kinds. 3. In the case of a man who knowingly lent false ^ 
weights for a vendor to weigh out goods with to a purchaser, 
Trebatius allowed an action de dolo. Here, nevertheless, if the 
weights lent were heavier than they were supposed to be, the 
vendor has a condictio to recover the amount of goods which he 
handed over in excess ; if they were too light, the purchaser can 
sue on his contract to have given him the amount of goods still 
due ; unless indeed the goods were sold on the express under- 
standing that the amount to be delivered should be determined by 
those actual weights, the lender having declared with fraudulent 
intent that his weights were correct. 4. Where a man contrived by 
dolus that a right of action should be lost by lapse of the statutable 
period, Trebatius said that an action de dolo ought to be allowed, 
not in order that restitution might be made in pursuance of the 
judge's intimation, but that the plaintiff might get damages to an 
amount representing the interest he had in the right of action not 
being lost ; because if the practice were different, it would be a 
fraud on the statute. 5. Where you promise me a particular slave, 
1 After pondera read iniqua. M. 



TIT. m] On Dolus malus 223 

and a third person kills him, it is generally held, and very rightly, 
that an action on dolus malus is allowed [me^] against the third 
person, because you are discharged from my demand ; for which 
reason no action will be granted you on the lex Aquilia. 

19 Papinianus {Questions 37) If the surety for a promise to 
deliver some beast kills it before default on the part of the pro- 
misor, then, according to opinions given by Neratius Priscus and 
Julianus, an action de dolo ought to be granted against him, 
because, as the debtor is discharged, it follows that the surety is 
freed also. 

20 Paulus {on the Edict 11) Your slave owed you money, but 
had not wherewithal to pay it, whereupon on your instruction he 
borrowed money from me and paid it to you. Here Labeo holds 
that an action for dolus malus will be granted against you, as, on 
the one hand, the action de pecidio is inapplicable, because there is 
nothing in the pecidium, and it cannot be said that there is anything 
spent to the owner's profit {in rem ve7-sum), because the owner 
received it in discharge of a debt. 1. If you make me believe that 
you had no partnership with the person to whom I am heir, and I 
consequently allow an action against you to be dismissed, according 
to Julianus I shall have a right to an action de dolo. 

21 Ulpianus {on the Edict 11) If, on my tendering an oath, 
you swear that you are not liable, and you are let go free, but after 
that you are proved to have committed perjury, then, says Labeo, 
an action on dolus must be allowed against you ; but Pomponius 
thinks that the view to hold is that the use of the oath amounts to 
a compromise, which opinion is upheld by Marcellus {Dig. 8) : if 
you appeal to a man's conscience, you must abide by it {stari 
religioni debet). 

22 Paulus {on the Edict 11) In fact the penalty affixed to 
perjury is enough. 

23 Gaius {on the provincial Edict 4) If a legatee whose legacy 
is in excess of what the lex Falcidia will allow him to retain 
should, while the heir is still uninformed as to the amount of the 
assets, induce him to believe, either by volunteering to swear or by 
some other deceitful contrivance, that the testator's estate is amply 
sufficient for paying the legacies in full, and should by that means 
get his own legacy paid in full, an action is allowed de dolo. 

24 Ulpianus {on the Edict 11) If it is contrived by the dolus 
of a man who acts as spokesman in behalf of someone who has 

1 M. 



224 On Dolus malus [book iv 

instituted proceedings for having his freedom established in law, 
that a decision which the Court makes in favour of liberty should 
not be given in the presence of the other party, I should say that 
an action de dolo can be allowed against him at once, because a 
decision once pronounced in favour of liberty is not allowed to be 
reconsidered. 

25 Paulus {on the Edict 11) I brought an action against you 
for payment of money, and issue was joined accordingly, whereupon 
you induced me to believe, contrary to the fact, that you had paid 
the money to my slave or my procurator, and by that means you 
procured that the case should be dismissed, with my consent. The 
question being asked on my side whether there would be an action 
de dolo allowed against you, it was held that such an action could 
not be allowed, because I can have another remedy ; as I can have 
a fresh trial, and if I am met with the exceptio of res judicata, I 
shall have a lawful replicatio. 

26 Gaiv^ {on the provincial Edict A) The proconsul promises 
to allow the action in question against the heir to the extent of 
what comes to his hands, that is to say, the extent to which the 
inheritance is the richer by the matter in hand when it comes 
to him, 

27 Paulus {on the Edict 11) or would have been, except for 
his use of dolus malus to prevent it. 

28 Gaius {on the provincial Edict 4) Consequently if a formal 
discharge is given you [by means of your own dolus\ there will be 
a good action against your heir without more. But if property was 
delivered to you, then, if the thing delivered is existing at the time 
of your death, there will be an action against your heir, if it is not 
existing, there will not. However the right of action against the 
heir will be, in any case, without limitation of time, as he must not 
be allowed to profit by another man's loss. And it is in keeping 
with this that as against the person himself who acted with dolus 
an action in factum must be allowed witliout limitation of time to 
the extent to which he is enriched. 

29 Paulus {on the Edict 11) Sabinus holds that the heir is 
sued rather on the principle of making good a deficiency {calculi 
ratione) than on the ground of malfeasance, and, in any case, he 
does not incur infamy ; consequently that his liability ought to be 
without limitation of time. 



TIT. m] On Dolus malus 225 

30 Ulpianus {on the Edict 11) And where the action is asked 
for against the heir, no special cause need be shown. 

31 Proculus {Epistles 2) If any one induces my slaves to 
abandon possession of property, possession is not lost, but the 
party is liable to an action de dolo mcdo, if I incur any damage. 

32 Sc^voLA {Digest 2) A legacy per pneceptionem of a slave 
was made to a son of the testator, with a request that he would 
manumit the slave after a specified interval, if he should have in 
the meantime handed in his accounts to such son and his brothers 
who were coheirs with him. Hereupon the legatee (i.e. the son) 
gave the slave his liberty by manumission, viz. by vindicta^ 
before the day mentioned, and before the accounts were rendered. 
The question was asked whether the legatee was liable on the 
Jidcicommissum at the suit of his brothers to send them in the 
accounts which concerned them corresponding to their respective 
shares in the inheritance. My answer was that as the legatee 
had actually set the slave free, he was not liable on the ground 
of Jideicommissum ; but if he had hurried on the manumission 
with the object of avoiding sending in accounts to his brothers, 
they could have recourse to an action de dolo against him. 

33 Ulpianus {Opinions 4) A man being in possession of pro- 
perty which he was offering for sale, his opponent instituted 
proceedings against him to determine the question of ownership, 
and, after having thus prevented him from closing with a purchaser 
to whom the property might have been sold, abandoned the action. 
It was held that the party in possession had in virtue of these facts 
a good right of action in factum to indemnify himself 

The same {on Sabinus 42) If you give me leave to quarry 

stone on your land, or to dig for chalk or sand, and I thereupon go 
to expense in the matter, but you refuse after that to let me take 
anything away, the only action that will apply in the case is that 
on dolus malus. 

The same {on the Edict 30) Where a party in whose custody 
a written testament is deposited mutilates or spoils it in any way 
after the death of the testator, the person named heir will have a 
good action de dolo against him. Indeed the persons to whom 
legacies are given will have similar rights of action. 

16 Marcianus {Rules 2) If two parties both practise dolus 
they cannot thereupon bring actions against one another. 

M. J. 15 



226 On persons binder twenty -five [book iv 

37 Ulpianus {on Sabinus 44) A thing said by a vendor by way 
of i)iiffing his goods is treated as not said, and as constituting no 
engagement ; and if the vendor said it in order to deceive the 
purchaser, still the proper construction is that no right of action 
results in regard to anything said or promised, but only an action 
de dolo. 

38 The same {Oplnio7is 6) A debtor causes a letter to be sent 
to his creditor purporting to come from Titius, in which the request 
is made that he i^the debtor) may be released, whereupon the 
creditor, being deceived by the letter, releases the debtor by means 
of an Aquilian stipulation and a formal discharge. If after this the 
letter is shown to be forged or beside the purpose, a creditor over 
twenty-five will have an action de dolo, one under that age will get 
a restitution in integrum. 

39 Gaius {on the provincial Edict 27) If you offer yourself to 
Titius [as defendant to an action which he brings] about a thing 
which in reality you do not possess, your object being that some one 
else may acquire it by usus, and you give security that the decree 
shall be obeyed, then, even though the action against you should 
be dismissed, still you will be liable for dolus mains ; this is held 
by Sabinus. 

40 FuRius Anthianus {on the Edict 1) A man who deceives 
someone else in order to induce him to enter on an inheritance 
which will not pay the charges on it will be liable for dolus, unless 
it so chance that he was a creditor himself and the only one ; in 
that case it is enough that there is an exceptio of dohis mains in 
bar of any action on his part. 



IV. 

On Persons under Twenty-five. 

Ulpianus {on the Edict 11) This Edict the Prsetor pro- 
pounded in deference to natural justice, undertaking by means of 
it the protection of persons of immature age. All are agreed that 
the judgment of persons of that time of life is deficient in soundness 
and strength, and exposes them to be taken at a disadvantage in 
many difterent ways^ ; and for this reason the Prsetor promises 
them his support in the present Edict, and his assistance against 

1 Dele multorum insidiis expositum. M. 



TIT. iv] On persons under twenty-five 227 

imposition. 1. The words of the Edict are : — " in the case of any 
transaction which I hear to be executed with one under twenty-five 
years of age, I will deal with it according to tiie circumstances of 
the particular case." 2. It appears then that the Praetor promises 
assistance to those under twenty-five ; of course after that age it is 
well-known that manly vigour has reached maturity. 3. Accordingly, 
at the present day, up to that age young men are under the guidance 
of curators, and they will not be allowed to take in hand the 
management of their own aftairs, even though they should be such 
as conduct them well. 

The same {on the, lex Julia et Papia 19) Even the fact of 
having children will not enable minors to get^ the control of their 
affairs out of the hands of their curators at an earlier time. As for 
what is laid down in sundry statutes that a year is remitted for 
every child, this, as the Divine Severus declares, refers to capacity 
for holding a public ofiice, not to the question of a minor acquiring 
control over his affairs. 

The same {on the Edict 11) Moreover the Divine Severus 
and the present Emperor have construed decrees of consuls or 
jwcesldes resembling the above statutes as being made with a 
private object of their own, these Emperors themselves having 
very rarely used their exceptional powers to indulge minors with 
permission to manage their own affairs ; and with this the present 
practice agrees. 1. Where a man makes a contract with a minor, 
and the contract takes effect at some time subsequent to that of the 
minor reaching full age, do we look at the beginning of the trans- 
action or the end ? The rule is, indeed it has been so enacted, that 
if a man, after reaching full age, confirms what he did when 
under age, there is no case for restitution in hitegrum. Accord- 
ingly it is with a nice attention to legal principle that Celsus 
{Epistles b. 11 and Digest b. 2) lays down the law on a point raised 
by a statement of fact as to which he was consulted by Flavins 
Respectus the Pr?etor. A person under twenty-five years, let us 
say aged twenty-four, had commenced proceedings in an action on 
tutela against the heir of his guardian ; and what happened there- 
upon was that the action against the heir, as the case was stated, 
was dismissed, the plaintiff having, before the trial was finished, 
already reached the full majority of twenty-five years ; whereupon 
a restitution in integriim was asked for. Upon this Celsus gave his 
opinion to Respectus to the effect that the quondam minor in 
^ Read recijnant for recipiat. Cf. M. 

15—2 



228 On persons under timnty-Jive [book iv 

question ought not, as a matter of course, to get restitution in 
integrum ; it ought only to be given if it were shown that the 
defendant had cunningly contrived to get himself discharged from 
the action at a time when the plaintiff had already reached full 
age ; " and it was not," he said, " only on the last day of the trial 
that the minor was deceived in this case, but the whole of the other 
party's proceedings were a contrivance for securing that he should 
be discharged from the action only after the plaintiif reached full 
age." But Celsus goes on to admit that if there are only slight 
grounds of suspicion that the other party has acted with dolus in 
the matter, the plaintiff ought not to get restitution in integrum. 
2. I know also that there was such a case as the following. A man 
under twenty-five had intermeddled with his fathers inheritance, 
and, having reached full age, he had accepted payment from certain 
debtors to the estate ; after which he applied for an order of 
restitution in integrum, in order to be able to renounce the inherit- 
ance. It was urged on the other side that after reaching full age 
he had confirmed the step which he took when he was a minor ; 
however we held that he ought to get restitution in integrum, 
having regard to the commencement ; and I should hold the same 
where a minor entered on the inheritance of a stranger. 3. A point 
to consider is whether we ought to say that a person is under 
twenty-five years of age even on his birtliday before the very hour 
at which he was born, so that if he should be imposed on he may 
get restitution. As to this, since up to that time he has not 
completed the age in question, the rule is that we must reckon the 
time from moment to moment. Similarly if he is born on a day 
which is doubled by intercalation (Jnssexto), Celsus tells us that it 
makes no difference whether he is born on the earlier or the later 
day ; the two days are treated as one, and it is the latter of the two^ 
which is held to be intercalated. 4. We may next consider whether 
relief ought to be given only to persons sid juris or to persons 
under potestas too. What causes some hesitation is that if it 
should be said that the Court must go so far as to relieve one 
under potestas in respect of a matter which regards his j^cculium, 
the result will be that through him we shall be relieving a person 
of full age as well, that is the party's father, a thing which the 
Prsetor by no means intended ; the Edict promises aid to persons 
under age, not to those of full age. However I should say myself 
that the most correct opinion is that of those who hold that a 
JUiusfamilias who is under age may have restitution in ifdegrum 
^ Del. kalendarum. Cf. M. 



TIT. iv] On pei'sons under twenty -Jive 229 

in those cases only in wiiich he has an interest of his own, 
as for example where he is himself bound by some ohligatio. 
Accordingly, if he contracted an obligation by his father's order, 
then his father of course can be sued for the whole amount ; 
and, as for the son, seeing that he can be sued himself, though 
he should be living under potesias, — or, even after he should be 
emancipated or disinherited, to the extent of his ability to pay, — 
and, in fact, that when he is living under potesfas, he can be 
sued upon a judgment even against the will of his father, [ — con- 
sidering, I say, all this,] he will have a good claim to an order 
for relief, if he should be sued himself. Still, whether this relief 
will at all benefit the father himself, — for example in the way in 
which the practice sometimes is to make it a benefit to a surety for 
the son, — is a question to consider ; my own opinion is that it will 
not. Accordingly, if the son is sued, he can ask for relief, 
(though if the creditor sues the father, no relief is given,) except 
in the case of a loan ; if the son received money by his father's 
order for this object, i.e. by way of loan, he is not relieved. 
Similarly, if the son made the contract and was put to a disadvant- 
age, then, if the father is sued de pecidio, the son will not have a 
right to restitution ; but if the son himself is sued, he can get 
the order. I attach no weight to the fact that the son may be 
said to have an interest in possessing a peculiimi ; the fact is 
the father has a greater interest in it than the son, although 
there may be a case in which the son has a direct concern in 
it ; for example, where his father's property is taken possession 
of by the revenue department for a debt ; in which case, by the 
enactment of Claudius, the 2)eculiimi is to be separated for the 
son's benefit [from the general property of the father]. 5. In 
accordance with the above, even if a filiafamilias should be taken 
in in respect of her dos, because she consented to her father's 
stipulating, some time after giving the dos^ for the return of it 
or finding someone else to stipulate for it, I think she ought to 
get restitution, because the dos is the peculiar patrimony of the 
daughter herself. 6. Where a man under twenty-five has pro- 
cured himself to be arrogated, but he now alleges that he was 
imposed upon in the matter of the arrogation, — suppose, for 
instance, that he was a person of means, and was arrogated by 
someone whose object was plunder, — I should hold that his ap- 
plication for restitution in integrum ought to be entertained. 
7. Where a legacy is given or a fideicommissmn left to a Jilms- 
familias under age, [payable] after his father's death, and he 



230 On persons under twenty-five [book iv 

suffers a disadvantage, in consequence, let us say, of consenting 
to the act of his father in agreeing [with the heir] that no action 
shall be brought for the legacy, it may fairly be said that he has 
a right to institution in integrum, seeing that he has an interest 
of his own on account of his expectation of the legacy, which he 
has a right to receive after his father's death. We may add that 
if a legacy is left him which is personal to himself, for instance, 
a legacy of a military appointment, the rule is that he can get 
restitution in integrum, as he has an interest in not being dis- 
appointed in respect of it, seeing that he does not acquire it for 
his father, but has it for himself. 8. Where a minor is appointed 
heir on condition that his father emancipates him within a hundred 
days, whereupon he ought to inform his father, but he omits to do 
so, though quite able to do it, whereas his father would have 
emancipated him if he had been aware of the facts, — the proper 
view is that he can get restitution in integrum, if his father is 
ready to emancipate him. 9. Pomponius adds that in any case in 
which a filiusfamilias would get restitution in respect of a matter 
which regards his peculium, the father liimself can on the same 
grounds, in right of the son, get leave to be heard after the son's 
death, as if he were heir to his son. 10. But in the case of a 
Jiliusfamilias who has a castrefise peculium, there is no doubt 
at all that, in respect of matters which touch the castrense 
peculium, he has a right to restitution in integrum, on the ground 
that it is his own patrimony in regard to which he has been put to 
a disadvantage. 11. A slave vmder twenty-five cannot get restitu- 
tion under any circumstances, as it is the person of his owner that 
is taken into consideration, and the latter must reckon it his own 
folly, if he entrusted the matter to one under age. Hence even if 
he contracts through a boy under the age of puberty, the same rule 
applies, as Marcellus himself says {Dig. 2). Again, if a slave under 
age should be allowed the free disposition of his peculium, an 
owner of full age will not on the strength of that fact get 
restitution. 

i Africanus {Questions 7) The reason is that whatever the 
slave transacts under these circumstances he is to be regarded as 
transacting with the consent of the owner. This will come out 
more clearly if the question arises in connexion with an institorian 
action, or the case is one in which a person over twenty-five years 
of age commissioned a minor to transact some piece of business 
and the party so commissioned was deceived in the matter. 



TIT. iv] O71 persons under twenty- five 231 

5 Ulpianus {on the Edict 11) If however the slave was one 
who had a claim to Immediate manumission in pursuance of a 
fideicommissum, and he is taken in, then, seeing that default is 
made in the matter to his prejudice, it may very well be said that 
the praetor is bound to come to his aid. 

6 The same {oa the Edict 10) Persons under twenty-five 
years of age are relieved by restitution In integrum, not only 
where they suffer some loss of property, but also where they 
have a personal interest in not being worried with litigation and 
expense. 

7 The same {on the Edict 1 1) The prsetor's words are, " any 
transaction which I hear to be executed." The word " transaction " 
{gestum) is applied irrespective of the precise circumstances, it 
may be a case of contract, or of something else. 1. Accordingly, 
where a minor buys, or sells, or enters into a partnership, or borrows 
money, if he is put to a disadvantage he will get the assistance. 
2. Again, if money is paid him by a debtor, either of his father's 
estate or his own, and he loses it, the proper view is that he will 
get the relief, on the ground that the transaction was with himself. 
Accordingly, if a minor sues a debtor, he ought to have curators 
with him, if he wants to have the money paid him ; otherwise the 
defendant will not be compelled to pay it him. However, the 
present practice is for the money to be deposited in a temple, as 
Pomponius mentions (b. 28), (for fear lest either the debtor should 
be burdened with the payment of excessive interest, or the creditor 
who is under age should lose his money), or else for payment to 
be made to the curators, if there are any. There is in fact 
Imperial legislation on the subject which allows a debtor to compel 
a person of immature age to apply to have curators appointed. 
However, what is to be said in case the praetor orders the money 
to be paid to the minor without curators, and the party pays ? 
will the latter be sure of protection? This point is not quite 
clear ; however, I should say that if he was compelled to pay after 
alleging that the other was under age, he cannot be made respon- 
sible any further ; unless indeed it is suggested that the proper 
course for him is to appeal on the ground that the praetor's order 
was a legal wrong. But I do not believe that if a minor asked for 
restitution in integrum under these circumstances the praetor would 
give him a hearing. 3. A minor is not relieved in the above cases 
only, but also where he intervenes as a third party, for instance, 
where he binds himself or pledges his property in the character of 



232 On 2^ersons mider twenty-five [book iv 

surety. On this point Pomponius appears to agree with those 
who distinguish between the case of the person in question being 
approved of by an arbiter appointed for the special purpose of 
judging of proposed sureties and the case of his being simply 
accepted by the other party. But I should say that a person 
ought to get relief irrespective of this distinction, if he is really a 
minor, and shows that he has been overreached. 4. Relief is also 
given in connexion with trials at law whether the party who 
suffered a disadvantage was plaintiff or defendant. 5. Again, if 
a minor has taken up an inheritance that is more unprofitable than 
he tliought, aid is given him so as to enable him to renounce it ; as 
this is a clear case of being put to a disadvantage. The same 
rule applies to a honoruin i^ossessio or any other form of succession. 
Not merely a son who has intermeddled with his father's estate, 
but any member of the household whatever who is under age can 
get an order of restitution ; for example, a slave wlio should be 
appointed heir and given his liberty ; the proper view being that, 
if he intermeddled, he can be relieved in consideration of his 
immature age, and so be enabled to keep his own property separate. 
Of course, when a person gets restitution after he has entered on 
the inheritance, he is bound to make good any part of the estate 
which he can follow into his own property and which has not been 
lost or destroyed through his youth and inexperience. 6. According 
to the present practice it is well established that minors are relieved 
even where they are disappointed of profit. 7. Pomponius indeed 
says (b. 28) that if a man declines a legacy, even without ill- 
practice on any one's part, or is unlucky in respect of the legacy 
of an option, because he chooses the woi'se of two things, or 
promises someone to give him one or other of two things, and 
thereupon gives the one which is the more valuable, he has a 
right to relief; and as a matter of fact relief ought to be given. 
8. In consequence of the view being held that minors have a 
claim to relief even where they are disappointed of profit, the 
question has been asked whether, supposing something belonging 
to the minor is sold, and there is a person forthcoming wlio is ready 
to make a better offer, the minor will get restitution in integru7n, 
in consideration of the gain which he missed. As to this it is 
quite a common thing for the prsetor to grant the order, so as to 
allow the biddings to be opened ; and he does the same thing in 
the case of property which ought to be kept unsold in the interest 
of minors. But it should be done with circumspection ; otherwise 
no one would have anything to do with purchasing the property of 



TIT. iv] On persons under twenty-five 233 

wards, even if the sale were in good faith. And it is a rule which 
deserves thorough approbation that, in respect of things which are 
exposed to unforeseen mischief, a minor has no claim to relief 
against a purchaser, unless a case of corrupt behaviour or clear 
partiality is shown on the part of a guardian or curator. 9. If, 
after getting the order, he intermeddles with the inheritance, or 
enters on one which he had declined, he can thereupon get an 
order once more to enable him to give it up ; there are rescripts and 
responses to this effect. 10. But with regard to the remark of 
Papinianus (Resp. 2) to the effect that if a slave is substituted to 
a minor as compulsory heir, then, if the minor declines the inherit- 
ance, such slave will be compulsory heir, and, if the minor after 
that gets an order for restitution, will notwithstanding remain free, 
but, if the minor enters on the inheritance and then gives it up, 
the slave who was appointed substitute to him, with liberty, cannot 
become heir nor be free, — this is not altogether accurate. If the 
inheritance will not pay the debts, and the heir [appointed in the 
first place] declines to take it, then the succession goes to the 
substituted compulsory heir, as both the Divine Pius and the 
present Emperor laid down by rescript ; speaking, as a matter of 
fact, of the case of a boy under fourteen being appointed heir who 
was a stranger to the family. When Papinianus goes on to say 
that the quondam slave remains free, this seems to imply that he 
does not remain heir too, — [I am speaking of the case] where the 
boy under age gets an order for restitution after once declining the 
inheritance ; — the fact being that, seeing that the boy does not 
become heir, but only has utiles actmies, there is no doubt that the 
man who once became heir will remain heir. 11. Again, if a minor 
did not appeal within the proper time, he is aided so far as to 
be enabled to appeal ; it may be assumed that this is what he 
desires. 12. Similarly he is aided in case of adverse judgment 
against him for default of appearance. However, it is undoubted 
law that men of any age can have a new trial after judgment in 
default, if they show that they were absent with good ground. 

Hermogenianus {Epitomes of Imv 1) Even where judgment 
is pronounced against a minor on the ground of contumacy, he can 
ask for the relief of restitution in integrum. 

Ulpianus ion the Edict 11) If, in pursuance of a judgment, 
goods of a minor are taken in execution and sold, and after that 
he gets restitution against the decree of the Prseses or Imperial 
procurator, it is worth considering whether the things which were 



234 On persons under twenty-five [book iv 

sold ought not to be recovered ; it is quite certain that where his 
money was paid in pursuance of the judgment it will have to be 
restored. In truth, the minor has an interest in recovering the 
goods themselves rather than their value, and I should say that 
this must sometimes be allowed, that is if the minor would other- 
wise suffer serious loss. 1. A married woman too is relieved in 
respect of the amount of her dos, if she has been inveigled into 
giving more than her means will bear, or perhaps has given her 
whole property. 2. We may next consider whether minors are 
relieved only where they are put to a disadvantage in respect of 
contracts, or it applies equally where they commit delicts ; for 
instance, suppose a minor was guilty of some dolus in connexion 
with a deposit or a loan or any case of contract, will he be relieved 
if nothing comes to his hands by it ? As to this the law is that 
minors will not get relief in respect of delicts ; so that none is 
given in the cases mentioned. As a matter of fact, if a minor 
commits a theft or does damage to property, he will not be relieved. 
Still, if, in a case where after committing damage he could have 
avoided payment of double damages by confession, he chose to 
deny his act, restitution wilP be allowed him so far only as to 
enable him to be treated as if he had confessed. On the same 
principle, if it was in his power to settle for the loss he occasioned 
as thief so as to avoid an action for twofold or fourfold damages, 
he will be relieved. 3. If a married woman, after being divorced 
through her own fault, desires this relief, or a husband does the 
same, I should say no restitution can be had, as the case is one 
of a serious offence ; in fact, the law is that if adultery is committed 
by a minor, the relief is not given. 4. Papinianus says that if 
a person over the age of twenty but under twenty-five allows 
himself to be sold into slavery, that is, if he shares the price, it 
is not the practice to grant restitution ; this is perfectly right, as 
the case does not admit of restitution, the status of the party being 
changed. 5. If a minor appears to have incurred a forfeiture for 
non-payment of duty, there will be an order for restitution in, 
integrum. But this must be understood to be on the assumption 
that there is no wilful misconduct in the case on the part of the 
minor ; otherwise the restitution will not be granted. 6. Add 
that it is inadmissible that a minor should be relieved by the 
prsetor against the acquisition of liberty by his slave, 

10 Paulus {on the Edict 11) except where he obtains this 
indulgence from the Emperor on very special grounds. 

1 Read eat for sit. Cf. M. 



TIT. iv] On persons under twenty-five 235 

11 Ulpianus {on the Edict 11) But there will be an action 
de dolo or an utilis actio for an amount representing the interest 
which the minor had in the slave not being manumitted ; accord- 
ingly whatever would have been his if he had not executed the 
manumission will have to be made good to him. Moreover, in re- 
spect of such things as the manumitted slave made away with, but 
which belonged to his owner, there are good rights of action against 
him for production, or for theft, by way of condictio, for the reason 
that he 'handled' them after he Avas free ; but where the delict 
was committed during the time of slavery, the owner has no right 
of action for it against the thief after the latter has acquired his 
freedom : this is comprised in a rescript of the Divine Severus. 
1. How are we to deal with the case of an owner under the age 
of twenty-five but over twenty selling a slave on the understanding 
that he is to be manumitted ? I say over twenty, because it is 
stated by Scsevola himself {Questions b. 14), and it is the better 
opinion, that the rule laid down in the rescript of the Divine 
Marcus addressed to Aufidius Victorinus does not embrace this 
case, I mean that of a minor^ over twenty. We have to con- 
sider then whether relief is not given to one over twenty years 
of age ; and the answer is that if he asks for restitution before the 
slave's freedom is acquired, his application will be entertained, 
but if he only does so afterwards, it cannot. On the other hand 
it may be asked whether where the party himself who purchases 
on the above understanding is a minor, he cannot get restitution. 
Here again, if the slave's freedom is not yet acquired, the proper 
view is that he may be relieved ; but if he only applies after the 
day agreed upon has arrived, then tlie intention of the vendor, 
if he is himself more than twenty years'^ of age, carries the gift 
of freedom. 2. A question was asked on a statement of fact as 
follows. Certain young men under twenty-five had received as 
curator a man named Salvianus ; who, after discharging the duties 
of the curatorship for some time, came to be appointed a city 
procurator by the gift of the Emperor, and after that obtained 
an order from the prsetor in the absence of the minors releasing 
him from the curatorship. Hereupon the minors applied to the 
praetor and asked for restitution in integrum against Salvianus, on 
the ground that he had been released contrary to legislative enact- 
ments on the subject. It was not the practice, so they maintained, 
for persons to be relieved of guardianships whicli they had once 

^ For minorein read majorem. Cf. M. 
'^ After majoris read viginti annis. M. 



236 On persons under twenty-five [book iv 

undertaken, except such persons as were beyond seas on business 
of tlie state, or were emplo3'ed in the direct service of the Emperor, 
an example of relief given on such a principle being the case of 
Menander Arrius the consiliarms ; nevertheless Salvianus had 
been excused his duties, so that they the minors had been put to 
a disadvantage, and accordingly they claimed to get restitution 
in integrum from the praetor. ^Etrius Severus was in doubt how 
to deal with the application, and referred it to the Emperor Severus, 
who, being thus consulted, sent a rescript to Venidius Quietus, the 
successor of ^Etrius, to the effect that there was no case for the 
prpetor's interference, it not being stated that any contract had 
been made with a person under twenty-five ; but the usual course, 
he said, was for the Emperor himself to interpose, and order the 
party to resume the duties of curator, where he had been Avrong- 
fully excused by the prsetor. 3. I must not omit to say that 
minors are not relieved as a matter of course, but only on cause 
shown, in a case where it appears that they have been put to a 
disadvantage. 4. Moreover, if a man, after carrying on his affairs 
in a judicious manner, asks for restitution in consequence of some 
loss which took place not through his own heedlessness, but by 
unavoidable accident, he will not get the order ; it is not the mere 
occurrence of loss that procures a man the indulgence in question, 
but his want of heed and caution. This is the same as what 
Pomponius says (b. 28). Accordingly there is a note by Marcellus on 
Julianus as follows : if a minor buys a slave that he is in need of, and 
after that he [the slave] dies, the minor has no claim to restitution ; 
he was not put to any disadvantage about the purchase of a piece 
of property which he could not possibly do without, though no 
doubt the slave was mortal. 5. Where a man becomes heir to 
someone of ample means, and the estate of the deceased un- 
expectedly goes to ruin, for example there are farms which are 
destroyed by a landslip, houses are burnt doMU, or slaves run 
away or die, — Julianus uses language (b. 46), implying that if the 
heir is a minor, he will get restitution in integrum ; but Marcellus 
in his notes to Julianus declares that restitution would not be 
given ; as the party was not taken in in any way owing to the 
heedlessness of youth when he entered on a rich inheritance, and 
the accidental mishaps tliat took place might very well have been 
experienced by any householder of full age, however careful. But 
a minor miglit have a claim to restitution in such a case as this : 
suppose he entered on an inheritance containing a number of 
pieces of property liable to be lost by death, or, say, containing 



TIT. iv] On persons under twenty -five 237 

land with buildings on it, but on the other hand subject to a 
heavy debt ; and he did not anticipate any probability of its 
coming to pass that slaves died or buildings fell in ; or he was 
not sufficiently quick in selling such things as are exposed to 
different kinds of accidents. 6. A further question is this : — is 
the application of one minor to be entertained where he asks for 
restitution against another? In Pomponius the answer given is 
simply No ; however, my own opinion is that the praetor ought to 
inquire which of the two was put to disadvantage, and if both were, 
for example, one minor lent money to another and the latter lost 
it, in that case, according to Pomponius the one who borrowed the 
money, and then squandered or lost it, has the better claim. 
7. No doubt, if a person under age contracts with a JiliusfamUias 
of full age, then, according to the opinion expressed by Julianus 
{Diff. b. 4) and Marcellus {Dig. b. 2) he can get restitution in 
integrum, so that the rule about age is more attended to than the 
Senatusconsidtum [Macedoniamim]. 

Gaius {on the jyt'ovincial Edict 4) If a woman intervenes 
to make herself liable at the suit of a minor in the place of some 
third person, no action will be allowed the minor against the 
Avoman, he will, in fact, like anyone else, be barred by an exceptio, 
for the reason that the ordinary law gives him restitution in respect 
of his right of action against the original debtor. This is on the 
assumption that the original debtor is solvent, otherwise the 
woman cannot avail herself of the benefit of the Senatusconsidtum 
[Velleianum]. 

Ulpianus (on the Edict 11) An essential point to consider 
when cause has to be shown is whether relief should be given to 
the minor alone or it is to be extended to others who are bound 
along with him, for instance, sureties ; the truth is that if I knew 
the party was a minor, and I did not feel that I could trust him, 
but you Avere surety for him, it is not just that the surety should 
be Relieved and I be ruined, rather the surety himself ought to 
be refused the action on mandatimi. The short rule is that it 
will be for the praetor to weigh well the question which of the two 
he is most bound to relieve, the creditor or the surety ; as for the 
minor who suffers disadvantage, he will be liable to neither. There 
is less difficulty in saying that relief should not be given to a 
mandator, as you may say that liis assertions and encouragement 
procured the contract to be made with the minor. This may well 
lead to the question whether a minor ought to ask for restitution 



238 On persons under twenty-five [book iv 

in integj^um against the creditor or against the surety too. The 
safer course would, I should say, be to ask for it against both ; 
the question of ordering restitution in integrum shoidd be weighed 
on cause shown and in the presence of the parties, or in their 
absence where such absence is wilful. 1. Sometimes the Court 
goes so far as to give a minor restitution in rem, that is, against 
the man who is in possession of his property, though he was not 
party to any contract. For instance, you purchased something 
from a minor and sold it to a third person ; here the minor has 
a right in some cases to ask for restitution against the person 
in possession, lest he should lose his property or go without his 
property, the course followed being that either the praetor hears 
the case, or else the transfer is set aside and an action in rem 
is allowed. Pomponius tells us (b. 28), that in Labeo's opinion, 
where a person under twenty-five sells and delivers land, and the 
purchaser transfers it on to a third person, then, if the second 
purchaser was aware that the facts are as stated, restitution will 
be ordered against him ; but if the second purchaser was not 
aware, and the first purchaser is solvent, the order will not be 
made ; if the first purchaser is not solvent, the fairer course is 
to relieve the minor even to the prejudice of a second purchaser 
who had no notice although he purchased hona fide. 

14 Paulus {on the Edict 11) No doubt as long as the party 
who purchased from the minor, or the heir of such party, is a 
substantial person, no decree should be made to the prejudice of 
the hona fide purchaser of the property, and this is laid down by 
Pomponius himself. 

15 Gaius {on the provincial Edict 4) Of course, where resti- 
tution is granted, a subsequent purchaser can come upon his own 
vendor, and a similar rule holds if there are several successive 
purchasers. 

16 Ulpianus {on the Edict 11) A further point to consider, 
when the case comes on, is this, whether there may not be some 
other kind of action open short of one for a restitution in integrum ; 
because if the party is sufficiently protected by the ordinary 
remedies and by direct law, he ought not to be allowed extra- 
ordinary relief ; take, for ;instance, the case of a contract being 
made Avith a ward without the concurrence of the guardian, where 
the ward is not the richer by it. 1. Again, it is stated in a book of 
Labeo's that if a minor is inveigled into contracting a partnership, 



TIT. iv] On persons under twenty-five 239 

or even where he aflects to assume the position gratuitously, 
no real partnership is contracted, nor would there be any even 
if the parties were of full age, and consequently there is no case 
for the praetor's intervention. Ofilius too lays down the same 
rule ; because the party is sufficiently protected in direct law. 
2. Again Pomponius has the following (b. 28j : an heir was 
required to hand over sundry things to his brother's daughter 
[a minor], subject to the condition that, if she died without 
children, she should restore them to the heir, and, the heir dying, 
she undertook to restore them to Ms heir : on which facts Aristo 
held that she had a right to restitution in integrum. But Pom- 
ponius goes on to say this, that the undertaking given could be 
made the subject of a condictio incerti even by a person of full 
age ; in point of fact the person, he says, enjoys security not 
at once without more, but by means of a condictio. 3. In short 
the general rule must be held to be that where the contract itself 
is invalid the prsetor ought not to interfere in respect of a matter 
which is clear in law. 4. Pomponius further says that in purchase 
and sale the contracting parties are free to take advantage of one 
another about the price, upon principles of natural law. 

5. We may next consider the question who can grant orders for 
restitution in integi'uni. Restitution may be granted by the prefect 
of tlie city and by other magistrates so far as this corresponds with 
their general jurisdiction, relief being thus given against their own 
decisions as well as in other cases. 

Hermogenianus {epitomes of law \) The pi-cefectus prcetorio 
can also give restitution i7i integrum against his own decision, 
although there is no appeal from his court. The reason why this 
distinction is made is that an appeal amounts to a complaint that 
the decision is unjust, but in an application for restitution in 
integrum the party is really asking to be relieved from the conse- 
quence of his own want of judgment, or alleges that he has been 
overreached by his opponent. 

Ulpianus {on the Edict 11) But an inferior magistrate 
cannot give restitution against the decision of a superior : 1. and if 
the Emperor has pronounced a decision, he very rarely allows resti- 
tution, or permits a man to be introduced into his council-chamber 
to say that he was put to a disadvantage owing to youthful want of 
judgment, adding, it may be, that grounds which were in his favour 
were not brought forward \ or complaining that he was betrayed by 
^ For dicta non allegat read dicat non allegata, M. 



240 On persons under twenty -Jive [book iv 

his counsel. For example, the Divine Severus and the Emperor 
Antoninus refused to listen to Glabrio Acilius, who, without alleging 
any special grounds, asked for an order of restitution against his 
brother after the case had been heard to the end in the Imperial 
chamber. 2. Nevertheless, when Percennius Severus asked for 
restitution^ in integrum in opposition to two decisions already 
given, the Divine Severus and the Emperor Antoninus allowed 
both matters to be made the subject of an inquiry before them. 
3. The same Emperor informed Licinnius Fronto by rescript that it 
was not usual for any one except the Emperor himself to give 
restitution in integrum after a decision pronounced on appeal by 
a judge who took the Emperor's place. 4. Moreover, if the case 
has been heard by a judge assigned by the Emperor, restitution 
can only be given by the Emperor, who himself appointed the 
judge. 5. Restitution in integrum is granted not only to minors 
but to the successors of minors as well, though they should them- 
selves be of full age. 

19 The same (on the Edict 13) Sometimes however the suc- 
cessor of the minor will be given a longer time than the year for 
taking proceedings, as the Edict itself says, if his own age chance to 
furnish ground for it ; as after the age of twenty-five he will have 
the regular period ; he may indeed be said to have been put to a 
disadvantage in respect of the fact that whereas he had a claim to 
restitution within the time which was given with reference to the 
deceased, he did not apply for it. No doubt if the deceased had 
[only] a short portion remaining of an annus utilis [365 available 
days], his^ heir, if under age, will be allowed for the purpose of 
getting restitution, after the completion of his own twenty-fifth year, 
not the whole of the time laid down [sc. a year], but only so much 
time as the minor to whom he is heir himself had remaining. 

20 The same {on the Edict 11) Papinianus says (Responsa 2) 
that when a man comes home from exile he ought not to be 
allowed any prolongation of the time laid down for restitution 
in hitegrum ; because while he was absent it was in his power to 
apply to the pr?etor through a procurator, but he said notliing ; 
or he could have applied to the prceses in the place M^iere he was. 
Where however this writer goes on to say that the party has 
forfeited all claim to relief by reason of the punishment inflicted 
on him, this is incorrect ; what connexion is there between criminal 

^ Aftei' restitui insert desiderante, eas res. M. 
2 Read hujus for huic. Cf. M. 



TIT. iv] On persons under timnty-five 241 

conduct and an excuse given on the ground of youth? 1. But if 
a person who is over twenty-five should within the period laid 
down for restitution carry his suit on as far as litis contestatio, and 
after that discontinue the proceedings, the litis contestatio will 
not be of any use to him towards procuring restitution in integrum ; 
this is laid down in a great many rescripts. 

21 The same {on the Edict 10) However, a man is not held 
to discontinue a matter Avhen he merely postpones further steps, 
but only when he abandons tlie case altogether. 

22 The same {on the Edict 11) Where restitution is asked for 
so as to revoke an entry on an inheritance on the part of a minor, 
the minor will not have to refund any portion of the estate which 
he has spent in discharge of legacies, or the value of slaves who 
may have acquired their liberty by means of his entry. Similarly, 
in the converse case, where a minor gets restitution for the purpose 
of making an entry, then any transactions executed by the curator 
of the goods appointed by the Prsetor's order in due form of law for 
the purpose of making the proper sales must be upheld, according 
to the rescript of Severus and Antoninus addressed to Calpurnius 
Flaccus. 

Paultjs {on the Edict 11) Where ^ Jlliusfamilias carries on 
business in pursuance of a mandate from his father, he cannot 
have the benefit of restitution, in fact, even if the mandate had 
been given him by a stranger, he would not have this relief, because 
the result would be that the person whose interest was chiefly 
promoted would be a person of full age, who would have been the 
one exposed to loss in the matter. Where however the fact is 
that the loss will eventually fall on the minor, because he is unable 
to recoup himself for such expense as he incurs by having recourse 
to the person whose business he carried on, on the ground of that 
person's insolvency, then, no doubt, the Praetor will interpose. 
But should the principal himself be under age and the procurator 
be of fuU age, the principa,l will not easily get a hearing, except 
where the transaction is carried on by his mandate, and he cannot 
indemnify himself by having recourse to his procurator. Hence we 
may add that if a minor is imposed upon when acting as procurator, 
the principal ought to bear the loss, as it was his own folly that 
he put his aflairs in the hands of such an agent. This is Marcellus's 
own opinion. 

M. J. 16 



242 On persons under twenty -five [book iv 

24 Paulus {Sentences 1) But if a minor meddles of his own 
accord with the affairs of a person of full age, he can get resti- 
tution, so as to prevent loss happening to the latter. But if he 
declines to do this, then, if he should be sued on negotia gesta, he 
will have no restitution against the action ; indeed he may be 
compelled to assign to the principal any right that he has to relief 
by way of restitution in iyitegi'um [against a third party] so as to 
make the principal '^procurator on his own behalf," in order to 
enable him by that means to make good the loss which he incurred 
through the minor. 1. However, transactions carried on with 
minors ought not to be as a matter of course rescinded, they ought 
simply to be put on a footing of fairness and justice ; or else 
persons of tliat unadvanced time of life would be put to great 
inconvenience, as no one would conclude any contracts with them, 
and they would virtually be under an Interdict as to all dealings 
with property. Consequently, the Prsetor cannot interpose unless 
they have been clearly overreached, or have acted with extreme^ 
carelessness in the matter. 2. Our master Scsevola used to say 
this : wliere a man, owing to the thoughtlessness of youth, neglects 
or declines an inheritance or a honornm possessio, then, if every- 
thing remains as it was, his application for the order ought by all 
means to be entertained ; but if, after the inheritance is sold and 
the aifairs wound up, he comes and asks for the money which has 
been got in by the exertions of a substitute, he must be refused a 
hearing ; and in such a case the court ought to be much stricter 
still about giving restitution to the heir of a minor. 3. If a 
slave or di filiusfamilias should impose on a minor, the owner — 
or the father — ought to be ordered to restore whatever comes to 
his hands ; what does not come to his hands he must make good 
out of the peculium : if neither of these two resources is found 
sufficient, and there is wilful misconduct in the case on the part 
of the slave, the latter should either be punished with stripes, or 
surrendered for noxa. We may add that if the Jiliusfamilias is 
equally guilty, he is liable to have judgment pronounced against 
him on the ground of his misconduct. 4. Restitution ought 
to be so carried out that everybody recovers his legal position 
unimpaired. Accordingly, where a person gets restitution who 
was imposed upon in respect of a sale of land which he made, the 
Prsetor will order that the purchaser should restore the land with 
mesne profits, and that the purchase-money should be returned 

^ For tain read adrnodum. Cf. M. 



TIT. iv] On pe7'Sons under twenty-Jive 243 

him, — unless he paid it knowing that the applicant would get rid 
of it, as a man does in the case of money which is lent for the 
borrower to spend ; but the relief is less readily given in connexion 
with a sale, as the purchaser pays the vendor a debt, which 
he is compellable to pay him, whereas nobody is compellable to 
lend money ; and, even admitting that the circumstances under 
which the contract was made were such that it is liable to be set 
aside, still, if payment of the price could be compelled, there is no 
reason why the purchaser should be exposed to loss as a matter 
of course. 5. This Edict gives rise to no special action or under- 
taking, the whole thing depends on the praetor's estimate of the 
facts. 

Gaius {on the j)'rovincial Edict 4) There is no doubt about 
this point, that if a minor pays something which he does not owe, 
under circumstances which give him no^ claim by civil law to 
demand to have it returned, he has a right to an utilis actio to 
recover it; seeing indeed that the practice is to give an action 
for recovery, if sufficient grounds are shown, even to those over 
twenty-five. 1. In the case of a young man who has a good right 
to restitution, it ought to be given on his own application, or given 
to his procurator, where the latter has received an express mandate 
for the purpose ; but where the applicant only avers that he has a 
general mandate for carrying on his principal's affairs of every kind, 
he ought not to be heard. 

Paulus {on the Edict 11) But if there is any doubt about 
the special mandate, when the party applies for restitution, he can 
put the matter on a satisfactory footing by means of a promise by 
stipulation that the principal will ratify the proceeding. 1. And 
in case of the absence of the party who is alleged to have taken 
advantage of the minor, any one who takes up his defence will have 
to give security that the judgment will be obeyed. 

Gaius {on the jyrovincial Edict 4) Restitution ought in any 
case to be granted to a father on behalf of his son, though the sou 
himself should be unwilling to have it, because the father's interest 
is at stake through his liability to an action de pecidio. From this 
it is clear that relations and relations-in-law in general are in a 
different position, and that they have no right to be heard, except 
where they apply for the order with the consent of the minor, 
or where the manner of life of the minor himself is such that 

^ Some would read deneganda for danda. Cf. M. This would alter no claim 
into a claim. 

16—2 



244 On persons under twenty-Jive [book iv 

an interdict may reasonably be issued taking from him the 
management of his property. 1. If a minor borrows money 
and then squanders it, the Proconsul is bound to refuse to grant 
his creditor an action against him. But if the minor lends it to 
some one who is in circumstances of destitution, nothing further 
ought to be done than to order the young man to assign to his own 
creditor such rights of action as he has against the person to whom 
he lent the money. Again, if he should spend the money in tlie 
purchase of land at a higher price than it ought to cost, the way to 
arrange the matter will be to order that the vendor shall restore 
the price and take back the land, so that the creditor himself who 
lent the money to the minor may recover what is due to him without 
loss to any one else. By this example we learn in fact what the 
practice ought to be where the minor buys something with his own 
money at a higher price than it ought to cost; only it must be 
remembered that both in this and the above case the vendor who 
gives back the price must pay in addition whatever interest he got 
or might have got for the money he received, and will have a right 
to recover mesne profits so far as the minor is the richer by them. 
And, conversely, if the minor sells for a lower price than the 
property ought to fetch, the purchaser must be ordered to restore 
the land with mesne profits, and the minor must give back so much 
of the price as represents the extent to which he is the richer by 
having received it. 2. If a person under the age of tAventy-five 
gives his debtor a formal release without any consideration {sine 
causa), he will get restitution of his right of action not only against 
the debtor himself but against the sureties and in respect of any 
securities that were given him. If he had two correal debtors, and 
he gave a formal release to one, his right of action will be restored 
against both. 3. By this we learn that if he should novate his 
contract to his own loss, for example, by transferring the liability, 
by way of novation, from a substantial debtor to a person of no 
means, he can get restitution so as to recover his right of action 
against the former debtor. 4. Restitution ought to be granted 
even against those persons on whose dolus no action is allowed to 
be brought, except so far as some persons are exempted by a 
special statute. 

28 Celsus {Digest 2) Where a person under twenty-five gets 
restitution against one whom he sued in an action on tutela, it 
does not follow that the guardian himself will have restored to him 
the riofht to the counter action on tutela. 



TIT. iv] On persons under tioenty-five 245 

MoDESTiNUS {Res2?onsa 2) Where a ward can be shown to 
have been put to a disadvantage, even if it was with the concurrence 
of his father, who is also his guardian, [it is held that] if he after- 
wards has a curator given him, there is nothing to prevent this 
latter asking for restitution in integrum on the boy's behalf. 
1. A female ward, having had judgment given against her in an 
action founded on curatorship, desired to get restitution with 
reference to one particular point in the decree, whereupon, seeing 
that she appeared to have been successful as to the remaining 
points in the case as tried, the plaintiff, who was a person of full age, 
although he at first acquiesced in the judgment, now maintained that 
there ought to be a new trial altogether. Hereupon Modestinus's 
opinion was, that if the particular matter as to which the ward 
desired restitution in integrum was independent of the other 
matters comprised in the case, there was nothing in the case 
entitling the plaintiff to a hearing, in respect of his prayer that 
the whole judgment should be set aside. 2. Where a party gets 
restitution in integrum by reason of his minority and in virtue 
thereof repudiates his father's inheritance, but none of the father's 
creditors are present or are summoned by the Presses to take any 
proceedings, it is a fair question whether the restitution can be 
held to have been properly granted. Modestinus's opinion was that 
as it was part of the case that an order of restitution in integrum 
was given without the creditors being made parties, the order was 
no bar to an action by the latter. 

Papinianus (Questions 3) An emancipated son omits to ask 
for possessio contra tabulas, and, after having commenced the 
requisite proceedings for restitution, sues for a legacy under his 
father's testament, being then over twenty-five. Hereupon he is 
regarded as abandoning the case ; since, even supposing the period 
for procuring honoru7n possessio were still running, still, after he 
has elected to go by the will of the deceased, the indulgence held 
out by the pr?etor must be regarded as rejected. 

The same {Responsa 9) Where a woman, after becoming 
heir to a deceased person, got restitution on the ground of her 
youth in order to enable her to decline the inheritance, I gave it as 
my opinion that any slaves forming part of the estate whom she 
had in due form manumitted in pursuance of a Jideicommissum 
would retain their freedom ; they would not, I added, be compelled 
to pay twenty am-ei as the price of retaining it, as they had acquired 
freedom in a thoroughly legal way. The fact is that even if some 



246 On persons under twenty-five [book iv 

of the creditors had recovered their money from her before she got 
the order of restitution, no claim on the part of the others against 
those so receiving payment, with a view to having the money shared 
amongst them, would be held admissible. 

32 Paulus {Questions 1) A person under the age of twenty-five 
applied to the Prseses, and satisfied him by his personal appearance 
that he was of full age, contrary to the fact ; but his curators, 
knowing that he was a minor, continued to manage his affairs. 
Some time after the above decision as to his age, but before he had 
reached the age of twenty-five, money that was owing to the youth 
was paid him, and he spent it unprofitably. I wish to ask who 
bears the loss ; and supposing the curators themselves had laboured 
under the same misapprehension, ever since the decision was arrived 
at, that is, they thought that he was of full age, and they had 
accordingly relinquished the management, and, in fact, sent in their 
accounts as curators, — in such a case, would they have to bear the 
risk of the period which elapsed since the moment when the minor 
was [falsely] assumed to be of full age? My answer was: — as for 
the persons who paid their debts, they were released by direct law 
and cannot be sued over again. There is no doubt that curators 
who knew the party to be under age, and still continued to execute 
their office, ought not to have allowed him to receive the debts 
owing to him, and they are liable to an action in respect of it. 
If however they gave credence to the decision of the Prseses, and 
ceased to carry on the management, or even went so far as to 
submit their accounts, they are in the same position as any other 
debtors, consequently they are not liable to be sued. 

33 Aburnius Valens {Fideicommissa 6) If a person under 
twenty-five is requested [in a testament] to manumit a slave of his 
own, who is, as a matter of fact, worth more money than the amount 
which is left the minor by way of legacy in the same testament, 
and the minor accepts the legacy, then, according to a resjjonsum 
of Julianus, he is not compellable to give the slave his liberty, 
if he is prepared to return the legacy; so that just as a man of 
full age is free to decline the legacy, if he is unwilling to manumit, 
so the party in question is excused from the duty of manumitting 
if he returns the legacy. 

34 Paulus (Sentences 1) If a person under twenty-five lends 
money to a filiusfamillas who is also under age, the one who 
spends the money is in the better position, unless [he] the borrower 
is found to be the richer for the loan at the time of litis coutestatio. 



TIT. iv] On i^ersons under twenty-jive 247 

1. Where minors have arranged to submit their case to arbitration 
by a given judge, and have stipulated for performance of the award 
Avith the concurrence of their respective guardians, they have a 
good right to ask for restitution in integrum against the obligation 
so contracted. 

Hermogenianus {Epitomes of Imv 1) Where property is 
knocked down to a minor but he is outdone by means of a better 
offer made by another person, the minor will be heard on an 
application for restitution in integrum, if it is shown that he had 
an interest in becoming the purchaser, for example because the 
property in question once belonged to his ancestors; but this is 
only on condition that he himself gives the vendor the amount of 
the excess on the fresh offer. 

Paulits {Sentences 5) A person under twenty-five who has 
omitted to make some averment can recover the opportunity of 
making it by the help of a restitution in integrum. 

Tryphoninus {Dis2mtations 3) The relief consisting in 

restitution in integrum was not provided for the purpose of en- 
forcing penal damages, consequently where a minor has once 
omitted to bring an action for injuria, the opportunity cannot be 
recovered by this means. 1. Again, in a case where the sixty 
days are passed within which a man can accuse his wife of adultery, 
by the right of the husband, without the proceeding being 
vexatious, restitution in integrum will be refused : indeed, if he 
were now to seek to recover the right of which he had omitted to 
avail himself, how would this differ from a request to be excused 
the commission of a delict, namely that of vexatious proceedings '? 
And inasmuch as it is an ascertained rule of law that the prpetor 
ought not to give any relief in respect of delicts or for the benefit 
of vexatious litigators, the restitution in integrum will not be 
granted. In the case of delicts a person under twenty-five Avill not 
get restitution in integrum ; at any rate in the case of aggravated 
delicts, except to this extent, that sometimes consideration for 
youth may induce a judge to inflict a milder penalty. But, to 
come to the provisions of the lex Julia for punishing adultery, 
a man who confesses that he has committed that offence has no 
right to ask for a remission of the penalty on the ground that 
he was under age; nor, as I have added, [will any remission be 
given] where he commits any of those offences which the statute 
punishes in the same way as adultery ; as, for example, where he 
marries a woman who was convicted of adultery, he knowing the 



248 On persons under twenty-five [book iv 

fact, or where his own wife was detected in adultery, and he declines 
to dismiss her, or where he makes a profit of her adultery, or 
accepts a bribe to conceal illicit intercourse which he detected, or 
lends his house for the commission of adultery or illicit intercourse 
therein ; youth, as I said, is no excuse in the face of plain enact- 
ments in the case of a man who, though he appeals to the law, 
himself transgresses the law. 

Paulus {Decrees 1) ^Emilius Larianus bought from Ovinius 
the Rutilian plot, subject to a lex commlssorla (conditional avoid- 
ance, i.e. on non-payment by such a day), and paid part of the 
price, the understanding being that if within two months from the 
purchase he should not have paid half the balance of the purchase 
money, the sale should be rescinded, and again, if, within another 
two months, he should not have paid over the amount then 
remaining, the sale should equally be rescinded. Before the 
expiration of the first two montlis Larianus died and was succeeded 
by Rutiliana, a girl under twelve, and her guardians failed to make 
the required payment within the time. The vendor, after repeated 
reminders to the guardians, when more than a year had passed, 
sold the property to [one] Claudius Telemachus ; whereupon the 
ward applied for a restitution in integrum, and having been un- 
successful, both in the Praetor's Court and in that of the City 
Prefect, she appealed. jMy own opinion was that the judgment 
she appealed from was right, because it was her ftither who made 
the contract, and not she herself ; but the Emperor was influenced 
by the consideration that the day when the sale was to be rescinded 
arrived in the girl's time [i.e. after the father's death], and it was 
by her own default that the terms of the sale were not observed. 
I suggested that a better ground for allowing her restitution was 
the fact that the vendor by reminding the guardians after the day 
on which it was agreed that the sale might be rescinded, and asking 
for his purchase-money, might be said to have abandoned the 
condition in his favour ; but I said I did not attach any weight to 
the fact that the time had lapsed after the death of the father, any 
more than I should to the fact of the creditor [of a minor] seUing 
an article pledged where the time for payment had lapsed after 
the death of tlie debtor. However, as the Emperor did not like the 
lex commissoria, he decreed restitution in integrum. There was 
another consideration which weighed with the Emperor, namely 
that the original guardians who had omitted to ask for restitution 
had been pronounced untrustworthy (suspecti). 1. With regard 



TIT. iv] On persons under twenty-five 249 

to the alleged rule that it is not usual for relief to be given to 
a JilmsfamiUas after he is emancipated, supposing he is still under 
age, in respect of neglect attributable to him while under jyotestas, 
this is only the case where the result might otherwise be that he 
would acquire for the benefit of his father. 

Sc^voLA {Digest 2) Within the available time for asking for 
restitution, certain minors applied for the order before the Prseses 
and satisfied the judge as to their age. The question of age 
being decided in their favour, the opposing parties, in order to 
prevent further prosecution of the case in the Court of the Pra3ses, 
appealed to the Emperor ; and the Prseses, pending the result of 
this appeal, postponed the further hearing. Thereupon the question 
arose ; — if, when the inquiry on appeal in the Emperor's court is 
terminated, the appeal is dismissed, and the minors are found to 
have by that time passed the age of minority, can they proceed to 
finish the case [in the Court below], it not having been their fault 
that the matter was not brought to a conclusion ? My answer was 
that, taking the facts as stated, the case would go on just as if the 
applicants were still under age. 1. A plot of land belonging to 
a minor being put up for sale by his curators, one Lucius Titius 
was purchaser, who remained in possession for six years, and made 
the property far and far away better than it had been ; my question 
is whether the minor has a right to restitution in integrum against 
the purchaser Titius, his curators being substantial persons. I 
answered that, taking the whole of the facts stated, the minor could 
hardly have restitution, unless he chose to make good to the 
purchaser all the expense which the latter could prove that he 
had incurred in good faith, especially considering that he was 
provided with a resource ready to hand, as his guardians were 
persons of substance. 

Ulpianus {Opinions 5) Aperson under twenty-five recovered 
judgment to the eflect that a fidecommissary legacy should be paid 
him ; whereupon he gave an acknowledgment that he had received 
it, and the [heir as] debtor gave him an undertaking to pay it, as if 
he had borrowed the money. In this case the minor can get 
restitution in integrum ; he had acquired a right to sue for money 
in pursuance of a judgment, and now, by means of a fresh contract, 
he has converted that right into a claim to originate proceedings 
in a dififerent kind of suit. 1. A person under twenty-five made 
over without sufficient reflection land of his father's in discharge 
of debts incurred by the latter which appeared in the accounts 



250 On persons under tv)enty-five [book iv 

relating to his management of the affairs of third persons to whom 
he had been guardian. In this case matters must be restored to 
an equitable footing by a restitution in integrum ; the transferee 
being credited with the interest due for the money which appears 
to be payable in connexion with the guardianship, and the amount 
being set off against the profits which he derived from the land. 

41 JuLiANUS {Digest 45) Where a minor has been imposed 
upon in respect of a sale of land, and the judge orders that it shall 
be restored to him, and that he shall give back the price to the 
purchaser, but the minor changes his mind and declines to avail 
himself of the order for restitution in integrum pronounced in his 
favour, then, if the purchaser sues for the purchase-money, as it 
were on the ground of a judgment, the minor will be allowed a 
good exceptio in bar of the action, since everybody is at liberty 
to disregard what was introduced for his own be*iefit. The pur- 
chaser^ will have no cause for complaint if he is put back into the 
position in which he was placed by his own act, and which he 
could not have altered if the minor had not prayed the aid of the 
Praetor. 

42 Ulpianus ion the office of Proconsul 2) The Prseses of a 
province can give restitution in integrimi even against his own 
decree or that of his predecessor in office ; because minors obtain 
by reason of their youth the same advantage which is given to 
persons of full age by allowing them to appeal. 

43 Marcellus {on the office of Prceses 1) The age of a person 
who alleges that he is over twenty-five must be ascertained by 
a formal inquiry, because the investigation may be a bar to an 
application for restitution hi integrum by the person in question, 
as well as to other proceedings. 

44 Ulpianus {Opinions 5) It is not every kind of transaction 
by persons under twenty-five wliich is liable to be upset, but only 
those which on inquiry turn out to be such that^ the applicant 
was overreached by some one else, or deluded through his own 
credulity, and so either lost something which he possessed, or 
missed the opportunity of making some gain which he might have 
made, or laid himself under the burden of some obligation which 
it was open to him to decline to undertake. 

^ For venditor read emptor. Cf. M. 

2 After deprehensa sunt insert ut (Ruecker). 



TIT. iv] On persons under twenty-five 251 

Callistratus {Monitory Edict 1) Even where an unborn 
child fails to succeed to property owing to some one acquiring it 
by usus before the child's birth, according to Labeo, he can get 
restitution of his right of action. 1. The Emperor Titus Anto- 
ninus laid down by rescript that where a minor alleged that his 
opponent had been dismissed from a suit owing to the fraud of his 
(the applicant's) guardian, and he desired to take fresh proceedings 
against the same defendant, it was open to him to begin by suing 
his guardian. 

Paulus {Responsa 2) Wliere a man volunteers to take up 
the defence of a minor in a trial, and judgment is pronounced 
against him, he can be sued on the judgment, and the youth of 
the person whose defence he took up will not constitute any case 
for getting restitution, as judgment is a ground of action to which 
he cannot demur. From this it appears that the minor himself, 
in whose behalf he suffered the adverse judgment, cannot pray the 
relief of restitution against the decision. 

Sc^voLA {Responsa 1) A guardian who was pressed by 
creditors sold property of his ward in good faith, but the mother 
of the ward addressed to the purchasers a protest against the sale. 
I wish to ask, seeing that the property was sold under pressure 
from the creditors, and no reasonable allegation can be made of 
corrupt dealing on the part of the guardian, whether the ward can 
possibly have restitution in integrum. My answer was that this 
must be determined by judicial inquiry into the circumstances, but 
that if tliere were [otherwise] sufficient grounds for restitution, 
such relief ought not to be refused simply because the guardian 
was guilty of no misconduct. 1. The curator of certain minors 
sold pieces of ground of which he himself and the youths whose 
curator he was were owners in common ; I wish to know, supposing 
these youths get an order from the Prsetor for restitution in 
integrum, whether the sale will be rescinded only to the extent 
of their shares in the common property. My answer was, that it 
would be rescinded only to that extent ; unless, indeed, the purchaser 
desired that the whole contract should be abandoned, on the 
ground that he would not have bargained for a share only. A 
further question I wish to ask is this : woidd the purchaser have 
to recover his money with interest from the wards, Seius and 
Sempronius, or from the heir of the curator ? I replied that the 
heirs of the curator were liable, still actions would be allowed 
against Seius and Sempronius to the extent of the shares which 



252 On persons imder twenty -Jive [book iv 

they had in the land, at any rate if the purchase-money which had 
been received had come to their hands to a corresponding amount. 

48 Paulus {Sentences 1) If a minor gets restitution in in- 
tegrum in respect of some suretyship which he undertook, or a 
mandate which he gave, this does not release the principal debtor. 
1. A minor sells a female slave ; if the purchaser manumits her, 
the minor cannot thereupon get restitution in integrum, but he 
will have an action against the purchaser for the amount of his 
interest. 2. Where a woman under the age of twenty-five finds 
her position made the worse by an agreement to give dos, and she 
has in fact entered into an agreement such as no woman of full 
age would ever enter into, which she therefore wishes to rescind, 
her application ought to be entertained. 

49 Ulpianus {on the Edict 35) If property of a ward or a 
minor is sold, there being no statute forbidding the sale, the sale 
is valid ; at the same time, if it involves a serious loss to the 
ward or the minor, even thougli there was no collusion in the 
case, the sale may be rescinded by restitution in integrum. 

50 PoMPONius {Letters and various passages 9) Junius Dio- 
pliantus greets liis friend Pomponius. A person under twenty-five 
intervened with the intention of novating a contract [by substi- 
tuting liimself as debtor] on behalf of an existing debtor, this 
latter being liable to an action which would be extinguished by 
lapse of time, and as to which there were then ten days more to 
run ; after which the minor got restitution in integrum ;— will the 
renewed right of action, which is given to the creditor against the 
original debtor, be for ten days or for a longer time ? What I 
have maintained is that so much time ought to be given, reckoning 
from the day of the restitution in integrum, as had been remaining 
originally. I wish you would let me know in writing what is your 
own opinion. The answer was : — I certainly think that what you 
held with reference to the limited right of action in respect of 
wliich a minor intervened, is the better opinion, and consequently 
the security which the former debtor gave will also remain available. 



TIT. v] On capitis minutio 253 



V. 



On capitis minutio, 

1 Gaius {on the provincial Edict 4) Capitis minutio is a 
change of status. 

2 Ulpianus {on the Edict 12) This Edict refers to such cases 
of cajntis deminutio as occur without affecting a man's right of 
citizenship: when a capitis deminutio occurs which involves loss 
of citizenshij) or loss of liberty, the Edict will not apply, and the 
person concerned cannot be sued in any kind of action ; of course 
an action will be allowed against persons into whose hands the 
property of those in question has passed. 1. The Prsetor says : — 
" Whatsoever man or woman, after becoming party to any contract 
or transaction, shall appear to have suffered capitis deminutio, 
I will allow an action against him or her, just as if such capitis 
deminutio had not taken place." 2. Persons who suffer capitis 
deminutio will still remain subject to a natural obligation in respect 
of such grounds as occurred before the capitis deminidio ; but if 
the grounds occurred afterwards, it is the other party's own folly 
for entering into a contract with the person in question, so far as 
the words of this Edict are concerned. There are cases, however, 
in which an action will be allowed where a contract was made with 
a person after he suffered cajntis deminutio ; and, in fact, if it is a 
case of arrogation, no difficulty arises, as the party can contract an 
obligation just as much as any [other] filiusfamilias. 3. No one 
can get rid of his delicts, in spite of undergoing capitis minutio. 

4. Where a man arrogates his debtor, the right of action against 
the debtor will not be renewed on the latter becoming sui juris. 

5. The right of action above given is not subject to limitation, and 
the right and the liability pass to the respective heirs. 

3 Paulus {o7i the Edict 11) When children go with their 
paterfamilias on the latter being arrogated, it is held that they 
suffer capitis deminidio, as they come under some one else's j^otestas 
and they change their family. 1. When a son or any one else 
[under j)otestas\ is emancipated, he clearly incurs capitis deminidio, 
because no one can be emancipated without first being reduced as 
a matter of form to a servile condition : this is very different from 



254 On capitis minutio [book iv 

the case of a slave being manumitted, because a person in bondage 
has no legal position at all, consequently none can be altered ; 

MoDESTiNUS {Pandects 1) in fact he only begins to have 
any status on the occasion itself. 

Paulus {o7i the Edict 11) Loss of citizenship amounts to a 
capitis minutio, as in the case of " Interdiction of fire and water." 
1. Persons who make "defection" incur capitis deminutio : (de- 
fection is said to be made by such as withdraw themselves from 
those under whose command they are, and bring themselves into 
the category of enemies ; also by those whom the Senate has pro- 
nounced to be enemies, or [has made such] by means of a special 
statute :) at any rate such persons so far suffer capitis deminutio 
that they lose their citizenship. 2. We may now come to the 
question wliat it is that is lost by capitis deminutio ; and we may 
first of all take that capitis deminutio which occurs without 
affecting a man's citizenship, and by means of which it is acknow- 
ledged that a man's position in matters of public law is not taken 
away. For instance, it is certain that a man will remain a magis- 
trate or a senator or a judge. 

Ulpianus {on Sabinus 51) In fact any other ofl&ce which 
the party holds under government continues as before; as [this] 
capitis deminutio puts an end to a man's private rights and those 
connected with his family position, not those connected with 
citizenship. 

Paulus {on the Edict 11) Guardianships too are not lost 
through capitis deminutio, except such guardianships as come to 
persons living under some one else's potestas. Accordingly guardians 
appointed by testament, or in pursuance of a [modern] statute, or 
a senatorial decree, will remain guardians in spite of the capitis 
deminutio : whereas statutable guardianships founded on the 
Twelve Tables are annulled on the same principle as statutable 
heirships resting on the same foundation, both being conferred on 
agnates, who cease to be agnates when their families are changed. 
But both heirships and guardianships founded on recent statutes 
are for the most part given in such terms that the persons to 
receive tliem are pointed out by describing their natural position ; 
for instance, there are senatorial decrees which confer the inheritance 
on mothers and sons as such. 1. Obligations founded on injuria, 
and in fact any which give rise to actions ex delicto, are attached 
to the individual. 2. If a capitis deminutio occurs involving 



TIT. v] On capitis minutio 255 

loss of liberty, no renewal [of a right of action] is admissible as 
against the slave, because, even as a matter of praetorian juris- 
diction, a slave cannot be under an obligation so as to be liable to 
be sued ; but, as Julianus tells us, an ut'dis actio will be allowed 
against his owner, and, if the owner does not choose to defend the 
case for the whole amount claimed, there must be an order enabling 
the plaintiff to take possession of such property as the slave had 
[when he was free]. 3. Similarly where citizenship is lost, there 
is no acknowledged principle of justice allowing restitution against 
a man when he loses his property and leaves the city and so goes 
into exile destitute. 

8 Gaius {on the provincial Edict 4) Obligations, the fulfilment 
of which is regarded as a matter of natural law, it is obvious cannot 
be avoided by capitis deminutio, as no civil principle can entail the 
destruction of natural rights. Accordingly the right of action for 
dos, which is framed with express reference to principles of right 
and justice, will still hold good even after a capitis deminutio ; 

9 Paulus (on the Edict 11) so that if a woman comes to be 
emancipated, she may still one day bring the action. 

[0 MoDESTiNUS {Differences 8) If a legacy is left^ of a sum to 
be paid every year or every month, or there is a legacy of a 
habitatio, it falls through on the death of the legatee, but on the 
occurrence of a capitis deminutio it will continue uninterrupted; 
for the reason that a legacy such as named depends on fact rather 
than law. 

Ll Paulus {on Sahinus 2) There are three kinds of capitis 
deminutio, the greatest, the middle, the least; seeing that there 
are three positions a man may have, liberty, citizenship, and family 
status. Accordingly where men lose all these three, that is, liberty, 
citizenship, and family status, it is always held that this amounts 
to the greatest capitis deminutio ; where they lose citizenship but 
retain liberty, it is the middle, and where liberty and citizenship 
are both retained, but family position alone is changed, it is 
understood to be the least capitis deminutio. 

^ For legatum...relictmn read legato...relicto. Cf. M. 



256 Restitution after twenty-five [book iv 



VI. 

Grounds on which restitution in integrum is allowed to 

PERSONS over twenty-five YEARS OF AGE. 

Ulpianus (on the Edict 12) No one will refuse to admit 
that this Edict is fouuded on very sufficient grounds ; where a 
man's legal position has been affected to his detriment at a time 
when he was attending to the service of the State, or was involved 
in some misfortune, there is a remedy given ; on the other hand, 
relief is given against persons so circumstanced, in order that 
what has come to pass may have no effect to their advantage or to 
their disadvantage. 1. The words of the Edict are as follows : — 
"Where any part of any one's property appears to be lost by non-user, 
when he is absent owing to fear, or, without fraudulent contrivance, 
in the service of the State, or is in prison, or in slavery, or in the 
power of the enemy; or subsequently^ to such circumstances; or it 
appears that any one's right to bring an action is barred by time ; 
also where a man has acquired ownership of something by usus, or 
has acquired anything which has been lost^ by want of usus, or has 
been released from liabihty to an action by reason of the right of 
action of the other party being barred by time, the fact being that 
the person in question himself was absent and undefended, or was 
in prison, or had provided no means by which he could be sued, or 
there was some legal obstacle to his being cited to appear against 
his will, and no one took up the case in his place ; also where 
it shall appear that, after an appeal was made to a magistrate or 
some one with the powers of a magistrate^, the right of action was 
lost by delay without any ill contrivance on the appellant's own 
part; — in all these cases — I will order restitution in integrum of 
the right of action [at any time] within a year after it was first 
possible to make an application on the subject; and further, if any 
other just ground shall be shown me, I Avill give the same relief, 
so far as the order shall be in accordance with statutes, plebiscites, 
decrees of the Senate, and edicts and ordinances of the Emperors. " 

Callistratus {Monitory Edict 2) This Edict — so far as^ it 
applies to those persons who are mentioned therein — is not now in 

1 After poti'state read posteave non utendo deminutum esse. M. 
^ For amisit read amissum est or sit. Cf. M. 
5* For sive cui pro read prove. Cf. M. 
* Read quoad for quod. 



TIT. vi] Restitution after twenty-five 257 

frequent use, as justice is administered in the case of such persons 
by procedure extra ordinem in pursuance of decrees of the senate 
and imperial constitutions. 1. The section we are considering 
first relieves those persons who were absent through fear ; provided, 
that is to say, the fear causing their absence was not mere ground- 
less alarm. 

Ulpianus (oh the Edict 12) A man is held to be absent 
through fear who is absent because he is reasonably in terror of 
death or bodily torture, and this must be judged by seeing what is 
his actual state of mind ; but it is not enough that the alarm which 
kept him away should be simply any state of terror, — the matter 
has to be investigated by the judge. 

Callistratus (Monitory Edict 2) [The Edict relieves] 

secondly those who have been absent, without dolus malus, on the 
service of the State. The fact of dolus malus, as I understand it, 
affects the application of the rule in this way, that where a man 
was able to come back and declined to do so, he is not relieved as 
to anything that happened to his prejudice during his absence; 
if, for example, he deliberately took means to be absent in the 
service of the State for the sake of securing some other particular 
advantage^, the privilege in question is withheld; 

Ulpianus {on the Edict 12) or suppose he contrived to be 
absent by taking pains for the purpose, even without an eye to gain, 
or set out earlier than he needed, or managed to be absent on State 
service in order to improve his position as a litigator. The proviso 
as to dolus malus applies to those who are absent on State service, 
it does not extend to such as are absent through fear ; in fact, if 
there is any dolus, it is not a case of fear. 1. Persons who are 
acting on State service in Rome itself are not absent on State 
service ; 

Paulus {on the Edict 12) for instance, magistrates. 

Ulpianus {on the Edict 12) It is true that soldiers quartered 
in Rome are treated as being absent on State service. 

Paulus {Short notes 3) A legate of a municipality is also 
relieved in pursuance of the ordinance of the Emperors Marcus and 
Commodus. 

Callistratus {Monitory Edict 2) Relief is also given to a 
man who was in chains. This expression does not refer only to 
a man who is confined in the way of legal imprisonment, but 

1 et del. Hal. 
M. J. 17 



258 Restitution after twenty -five [book iv 

includes the case of one who is kept in duress by robbers or 
brigands or any application of overpowering force. The word 
chains is to be taken in a wide sense ; it is held that even persons 
who are merely in confinement, e.g. in the stone-quarries, are to be 
considered " in chains " ; it makes no difference whether a man is 
kept in durance with walls or with fetters. However Labeo holds 
that the word imprisonment must be taken to mean only imprison- 
ment in due course of law. 

10 Ulpianus {on the Edict 12) Those persons are in the same 
position who are under the surveillance of soldiers or officers of the 
magistrate's court or attendants of the municipal authorities, if it 
is shown that they were unable to look after their own affairs. 
Persons are understood to be in chains who are to that extent 
bound that they cannot appear in public without discredit. 

11 Callistratus {Monitory Edict 2) Relief is also given to 
one who is in a state of servitude, whether he is a free man who 
is kept in good faith as a slave, or is simply coerced. 

12 Ulpianus {on the Edict 12) When a man is engaged in 
litigation on the question of his status, his case ceases to be within 
the purview of the Edict as soon as the proceedings are com- 
menced ; accordingly he is regarded as being in a state of slavery 
so long only as there is no trial begun of the kind mentioned. 

13 Paulus {on the Edict 12) Labeo says quite rightly that a 
man is not comprised in the Edict who has simply been appointed 
heir with a gift of freedom, before he actually becomes heir, because 
till then he has not really got any property, moreover the Praetor 
only speaks of persons who are free. 1. I should say, however, 
that a Jiliusfamilias, as far as his castrense pecidiuin is concerned, 
is within the terms of the Edict. 

14 Callistratus {Monitory Edict 2) Furthermore, relief is 
given to a man who has been in the enemy's power, that is to say, 
taken prisoner by the enemy ; but deserters cainiot be supposed to 
derive any benefit from the Edict, as they are refused the right of 
postliminium. Persons in the power of the enemy might however 
be held to be included in that part of the Edict in which it refers 
to those who have been in slavery. 

15 Ulpianus {on the Edict 12) Relief is given in the case of 
persons taken by the enemy if they return under the conditions of 
postliminimn, or die in the enemy's hands, as they cannot have 
the services of a procurator ; whereas other persons such as above- 



TIT. vi] Restitution after twenty-five 259 

mentioned can perfectly well get help through a procurator, 
except those who are kept in a state of slavery. My own opinion 
however is that assistance can be had even on behalf of a man who 
has fallen into the enemy's hands, if there is a curator appointed 
for his property, as there commonly is. 1. Relief is given just as 
much^ to one born in the hands of the enemy, if he has the right 
of postliminium, as to one taken by them. 2. Where a man is put 
in possession of the house of a soldier on the ground of damnum 
infectum, if the Prsetor granted the order for possession in the 
soldier's presence, he will get no restitution, but if it was in his 
absence, the rule is that he must be relieved. 3. With regard to 
the provision in the Edict in making which the Praetor uses the 
words '' or subsequently " without more, it must be understood to 
amount to this, that if occupation on the part of the hona fide 
possessor began before the absence [of the owner], but the period 
expired after his return, the relief consisting in restitution is 
admissible, not, that is, at any distance of time, but only where 
application is made within a short time after the party's return, 
viz. not beyond the time he takes to hire a lodging, get his eflfects 
together, and look out for an advocate : but a man who puts off 
applying for restitution, Neratius tells us, ought not to have a 
hearing ; 

Paulus {p-n the Edict 12) as relief is not given to persons 
who are remiss, but only to such as were hindered by stress of 
circumstances ; and the whole matter will be one to be arranged 
by exercise of the Praetor's discretion, that is, in accordance with 
the principle of only giving restitution where a party was unable 
to join issue in the action not through remissness, but because 
time pressed. 

Ulpianus {071 the Edict 12) Julianus says (b. 4) that a 

soldier will be relieved not only against the possessor of an inherit- 
ance, but even against purchasers from the possessor, so that, if 
the soldier accepts the inheritance, he can recover what is con- 
tained therein by a vindicatio ; but, if he does not accept it, there 
may be a construction by way of relation back to the effect that 
usucapio took place. 1. Again if a legacy is left a man in such 
words as these : — " or so much for every year which he shall pass 
in Italy," the legatee may get restitution to enable him to receive 
the annuity as if he had been in Italy, so Labeo says, and Julianus 
(b. 4) and Poraponius (b. 31; express their approval ; [which is a 

^ For minus read magis. 

17—2 



260 Restitutioyi after twentif-five [book iv 

fresh point,] as it is not a case of the right of action being barred 
by time in which the aid of the Praetor would be required, but the 
matter turns on a condition. 

18 Paulus {on the Edict 12) It must be borne in mind that 
the law gives persons of full age the relief of restitution only in 
cases where they sue in order to recover property or debts, not 
where the relief which they seek to have given them would enable 
them to make a profit by means of penalty or loss inflicted on some 
one else. 

19 Papinianus {Questions 3) Add that if a purchaser, before 
acquiring a thing by usus, is captured by the enemy, it is held that 
the interruption of possession is not cured by ^postliminium ; 
acquisition by ustis is not valid without possession ; but possession 
is almost entirely a state of fact, and matter of fact is without the 
scope of postliminiuin. 

20 The same {Questio7is 13) Nor ought the purchaser to be 
allowed an utilis actio, as it is very unjust to take a thing away 
from an owner, where there was no usus that took it away ; a 
thing cannot be regarded as lost, where it was not taken out of the 
hands of the party who is said to have lost it. 

21 Ulpianus {on the Edict 12) "Also," the Edict says, "where 
a person has acquired ownership of something^ by usus, or has 
acquired what had been lost by want of usus, or is released from 
liability to an action by reason of the right of action of the other 
being barred by time, the fact being that the person in question 
himself was absent and undefended " (etc.). The Praetor inserted 
this clause in order that, just as he comes to the aid of persons in 
the positions above described to protect them from suffering a dis- 
advantage, so he may interpose^ in opposition to them to prevent 
them from causing a disadvantage to other people. 1. It should 
be observed, moreover, that the Praetor's language is more compre- 
hensive where he gives restitution in opposition to these persons 
than it is where he comes to their aid ; thus, in the words before us, 
he does not specify the different classes of persons whom he relieves 
against, as in the previous case, but he inserts a general clause 
which comprises all such persons as are absent and undefended. 
2. Restitution in this case is granted, whether those thus absent 
and undefended acquired by usus in their own persons, or by the 

^ After quis read quid. M. 

2 Read succurrat for succurrit. HaL 



TIT. vi] Restitution after twenty-five 261 

agency of others who were in their potestas, but only where there 
was no one to defend the case on their behalf; if there was a 
■procurator, then, as you [the present applicant] had some one to 
sue, the other [who has now acquired by U8us\ must be left un- 
molested. But if there was no one to defend the case on behalf of 
the other party, it is perfectly fair that you should get the relief 
under discussion, especially considering that, in the case of people 
who are undefended, if they are purposely keeping out of the way, 
the Prpetor promises to give possession of their property, to the 
further intent that, if the case requires it, it may be sold ; but if 
they are not keeping out of the way, though they are undefended, 
he simply promises to give possession of their property. 3. A man 
is not regarded as being defended simply where some one puts him- 
self forward to defend him of his own motion, but only where there 
is some one called upon by the plaintiif himself who is prepared to 
follow up the defence to the end ; and the defence will be held to 
be complete where such person does not shirk the trial, and 
security is given that the judgment will be obeyed. 

Paulus {on the Edict 12) It must be understood then that 
this Edict only applies where the friends of the party were asked 
whether they would undertake the defence, or there was no friend 
who could be asked. In fact the only case in which it can be held 
that an absent person is undefended is where the complainant 
comes forward on his own part with an express challenge, and no 
one offers to undertake the defence ; and the complainant ought to 
make an attestation specifying these facts. 1. On the whole then, 
the Prfetor, while he does not wish the persons we are speaking of 
to suffer loss, is equally unwiUing to allow them to make positive 
gain. 2. This Edict, according to Labeo, applies to the case of 
lunatics, infant children, and town corporations. 

Ulpianus [on the Edict 12) The Praetor says further : '' or 
was in chains, or had provided no means by which he could be 
sued." He had good reason for proceeding to mention persons in 
these positions, as it was quite possible for a man to be in chains 
and yet be present, whether he were put in chains by state autho- 
rity or by a private person ; and there is no doubt that a man who 
is in chains, as long as he is not in a state of slavery, can acquire 
property by usus. However, even where the party is in chains, 
still, if there is some one to defend him, no restitution will be 
ordered. 1. But a man cannot acquire anything by asus when he 
is in the hands of the enemy, and, if the time of possession has 



262 Restitution after twenty -five [book iv 

begun to run in his favour, he will not be able to complete it whilst 
he is in the enemy's hands : moreover, even if he returns under 
the conditions of postliminium, he will not be able to pursue the 
acquisition of ownership by usus. 2. Again, Papinianus says that 
where a man has lost the possession of land, or the quasi-possession 
of a usufruct in land, in consequence of being taken prisoner, he 
ought to be relieved, and the profits too which another person has 
gathered from the usufruct in the meantime he thinks ought in 
fairness to be handed over to the returning captive. 3. There is 
no doubt that those who were in the potestas of the [person since 
made] captive can acquire property by usiis by means of their 
possession of it as part of their peculium ; and it will be fair that 
the assistance prescribed by this clause should be given to persons 
who are present, that is, who are not in captivity, if anything of 
theirs was acquired by usus by some one' else, where they were un- 
defended. On the other hand, if the time for bringing an action 
which the party had a right to institute against a captive has 
expired, relief will be given him against the captive. 4. The 
Prsetor then proceeds to say — " or provided no means by which he 
could be sued," so that restitution may be granted [against him], 
if, while he is in course of making such provision, the acquisition 
by usus [on his part] should be completed, or some other event 
should happen of those mentioned above. This is quite reason- 
able ; an order enabling the applicant to take possession of the 
property is not always a sufficient remedy, as the circumstances 
may very well be such that it is impossible to give possession of 
the property of a person who is keeping out of the way, or 
that the party is not keeping out of the way ; take a case, for 
instance, in which, while the other is endeavouring to procure legal 
assistance, or the trial is for some other reason being delayed, the 
right of action is barred by lapse of time ; 

24 Paulus {on the Edict 12) but the words will equally apply 
to the case of persons who, when sued, elude the complainant and 
contrive by various shifts and subterfuges to evade the action ; 

25 Gaius {on the Provincial Edict 4) and we may fairly say 
that they apply in a similar way to the case of a man who keeps 
out of reach, not with any intention of eluding a suitor, but because 
he is hindered by the multitude of his engagements. 

26 Ulpianus {on the Edict 1 2) Again, restitution will be vouch- 
safed Avhere the Prsetor was himself in fault. 1. Restitution, 
according to Pomponius, against a man who is relegated will be 



TIT. vi] Restitution after twenty -five 263 

ordered in virtue of the general clause in the Edict ; but none will 
be granted in his favour, because he could have appointed a 
procurator ; still 1 should say that on special cause shown the order 
would even be made in his favour. 2. The Prsetor proceeds : — 
"or there was some legal obstacle to his being cited against his 
will, and no one took up the case on his behalf." These words 
apply to those persons who, in accordance with ancient custom, 
cannot be cited without offence, such as the Prsetor, the Consul, 
and any magistrate who is invested with some right of command or 
authority. But the Edict does not comprise under these words 
persons whom the Pr?etor does not allow to be cited without his 
own express permission ; because, if he had been applied to, he 
might have given the permission ; take the case of patrons 
and parents. 3. The Edict then has the words — "and no one 
took up the case on his behalf" ; this applies to all the cases above 
mentioned, except that of a person who has acquired something by 
U8US while absent ; the reason for excepting this case being that 
it has been already fully provided for. 4. The Praetor next 
says : — " also where it shall appear that a party's right of action 
was lost by the fault of the magistrates without ill contrivance 
of his own." What is the object of these words ? It is to 
secure that in case a right of action should come to be lost in 
consequence of delays on the part of the judge, restitution should 
be ordered. Moreover where there was no magistrate accessible 
to whom to apply, in that case also, according to Labeo, restitution 
should be granted. By "the fault of the magistrate " we must 
understand such a case as that of a magistrate declining to enter- 
tain the matter, but if he simply, after hearing the application, 
refused to allow the action, there is no case for restitution : with 
this Servius agrees. Again it is a case of the fault of the magis- 
trate, if he declines to entertain the application out of favour to 
the defendant or for a corrupt motive ; in which case not only the 
clause in question will apply, but a former one too, viz. "or the 
party provides no means by which he could be sued," as in fact 
the party took special measures to prevent his being sued, by 
corrupting the judge. 5. By a right of action being lost we must 
understand to be meant the party ceasing to be able to bring an 
action. 6, The words are added "without any ill contrivance of 
his own," the object being that, if there should be some ill con- 
trivance on his part in the case, he should receive no assistance ; 
the Prjetor gives no relief to such as are themselves delinquents. 
Accordingly, if a man desires to bring his case before the next 



264 Restitution after twenty-five [book iv 

Praetor, and, with that object, deliberately misses the present 
opportunity, he will not be relieved. Or again, if he refused 
obedience to the Praetor's directions, and, for that reason the 
Prsetor declined to deal with his case, according to Labeo, he will 
get no restitution, and the rule is the same if the Prsetor refused 
him a hearing on any other ground. 7- If special holidays should 
be ordered, on the ground, it may be, of some national success, or 
in honour of the Emperor, and the magistrate for that reason 
should decline to sit, Gaius Cassius announced expressly in his 
edict that he would grant restitution, because this must be held to 
be a case of the fault of the Prsetor ; the regular holidays he said 
ought not to be taken into account, because the complainant was 
able to see when they were coming, and was bound to do so, so as 
not to run against them. This is no doubt the better opinion, and 
Celsus says the same {Dig. b. 4). However, when time lapses 
owing to holidays, restitution ought to be granted only of the 
actual days lost, not of the whole period from the beginning. 
This is said by Julianus {Dig. b. 4) ; what he tells us is that where 
usucapio is set aside, the proper order is for restitution of as many 
days as those on which the complainant was ready and willing to 
take proceedings, but was hindered by the occurrence of the 
holidays. 8. [This rule applies] in any case in which a man by 
his absence hindered another's action for something short of the 
whole period required to bar the right ; suppose, for example, 
I was in possession of something belonging to you for less by one 
day than the period laid down for acquiring by usus, and then 
I began to be absent on State service, in that case restitution ought 
to be ordered against me for one day. 9. "And further," the 
Praetor continues, "if any other just ground shall be shown me, 
I will order restitution in integrum." It was necessary to insert 
this clause in the Edict, because cases of a great many kinds might 
occur which would give a claim to the relief of restitution, but 
which could not be specifically enumerated, so that whenever 
restitution is called for by the justice of the case, recourse can be 
had to the above clause. Suppose, for instance, a man has dis- 
charged a legation on behalf of a city, it is perfectly just that 
he should get restitution, though he was not absent in the service 
of the State ; and it has been often laid down that he ought to 
get relief, whether he had a procurator or not. I should say 
the same where he has been summoned from some province to 
come up to the city or to come before the Emperor in order to be 
a witness ; there have been a great many rescripts to the eflfect 



TIT. vi] Restitution after twenty-five 265 

that this is a case for relief. Again, relief has been given to persons 
who have been abroad in connexion with some judicial enquiry or 
appeal. In short, as a general rule, whenever persons have been 
absent unavoidably and not by their own choice, the proper view 
is that they ought to be relieved ; 

Paulus {on the Edict 12) and whether a man loses some- 
thing or is disappointed of some expected gain, an order for 
restitution should be made, though there should be no loss of any 
portion of his property. 

Ulpianus {on the Edict 12) Again, where a man has been 
absent on defensible grounds, the Pr?etor should consider whether 
it is a good case for relief, — suppose, for instance, the party claims 
on the ground that he was prosecuting studies, and say his pro- 
curator was dead ; — the object in such a case being to secure that 
he shall not lose his expectations in consequence of absence on 
some very reasonable ground. 1. Again, if a man is not confined 
or in chains, but has given security with sureties for his appearance 
somewhere, and, being in consequence unable to absent himself, 
has suffered some disadvantage, he will get an order of restitution ; 
and similarly an order may be made against him. 2. "So far" 
the Praetor continues "as such order shall be in accordance with 
statutes, plebiscites, decrees of the Senate and edicts and ordi- 
nances of the Emperors." This clause does not lay down that the 
Praetor will give restitution if the statutes permit it, but if they 
do not forbid it. 3. Where a man has been absent in the service 
of the State several times, Ijabeo holds that the period allowed 
him for applying for an order of restitution should be made to run 
from the day of his last return. But if all his absences put 
together amount to a year, and each separately to less than a year, 
a fair point to consider is whether he has a whole year given him 
to ask for restitution, or only so much time as that for which his 
last absence lasted : but I should say a whole year. 4. If, when 
your place of abode is in the province, you^ happen to be in the 
City, will time run against me, on the ground that it is in my power 
to sue you? Labeo says it will not. I should say however that this 
is only true where the other side has a right to an order to have the 
action removed into the provincial Court ; but, if he has not, it 
must ^be held that it is in my power to bring the action, because 
I am able to have issue joined in Rome just as well. 5. A man who 
has been absent on State service has a good exceptio, corresponding 

^ Dele auteni. M. 



266 Restitution after twenty -five [book iv 

to his right of action to rescind ; suppose, for instance, he should 
have got possession of the property [which he lost], and a vindi- 
catio is brought against him to recover it. 6. In an action to 
rescind which a man has a right to bring against a soldier, 
PomiDonius says it is perfectly just that the defendant should 
account for the profits attributable to the period during which he 
was absent and undefended ; consequently such profits must be 
handed over to a soldier [in the converse case] ; there are similar 
rights of action on both sides. 

29 k¥BiCA.T^\]^ {Questions 7) The object being that the discharge 
of a duty to the State should be no loss or gain to any one. 

30 Paulus {on the Edict 12) Where a soldier who was in 
course of acquiring something by tisus dies, and his heir completes 
the period required for acquisition, it is agreeable to justice that 
the acquisition ensuing thereupon should be liable to be rescinded, 
the same legal construction being maintained {eadem se7'vanda 
sint) in the persons of the heirs who succeed to the prospect 
of acquiring by usus [as was observed in the person of the 
deceased] ; the fact is tliat the possession enjoyed by the deceased 
descends to tlie heir as it were united to the inheritance, indeed 
very often the title is completed before the inheritance has been 
entered upon. 1. Where a man who was absent on State service 
has acquired something by usus, and after that disposes of it to 
another, restitution may be granted [to the former owner], and, 
though the absence and the acquisition by usus should be with no 
ill contrivance {dolus), the party must be debarred from making a 
gain by them. Similarly restitution must be made in all the other 
cases, as if judgment had been given against the party. 

31 The same {on the Edict 53) Where a man whose property 
has been acquired by usus by some one else who was absent on 
State service gets into possession of the property so acquired, 
then, even if he should subsequently lose it, his right of action to 
recover it is not subject to be barred by time, but is perpetual. 

32 MoDESTiNUS {Rides 9) A man is regarded as absent on 
State service as soon as he has started from the City, though he 
has not yet reached^ the province ; and, when he has once departed, 
he remains absent till he returns to the City. This rule applies to 
Proconsuls and their legates and to those [legates] who are at the 
head of a province, also to imperial procurators who are employed 

- For exceaserit read accesserit. Cf. M. 



TIT. vi] Restitution after twenty-five 267 

iu the provinces, as well as military officers (tribuni) and prefects 
and assessors of legates whose names are sent in to the aerarium, 
or the particulars relative to whom are entered^ in the Imperial 
Gazette {commentar'ius principls). 

The same (on cases unravelled) Among those who are 
relieved in virtue of the general clause is included the Advocate 
of the fiscus. 1. Those persons who take down the pronounce- 
ments of the Praeses are certainly not absent on State service. 
2. Military doctors, iuasmuch as the duty they discharge is in the 
public interest and ought not to expose them to any kind of dis- 
advantage, have a right to ask to be relieved by restitution. 

Javolenus {Extracts from Cassius 15) A soldier who has 
come home on furlough is not held to be absent on State service. 
1. A man who gives his services iu connexion with State dues 
which are farmed out for revenue purposes is not absent on State 
service. 

Paulus (on the lex Julia et Papia 3) Men who are sent to 
take out soldiers or bring them back or to superintend'^ recruiting 
are absent on State service. 1. And so are such as are sent to 
congratulate the Emperor. 2. So is an Imperial procurator, and 
not only one who is entrusted as procurator with the affairs of a 
particular province, but one who has to manage some of such 
affairs, though not all. Consequently a number of procurators 
of different respective departments in the same province are all 
regarded as absent on State service. 3. The Prefect of Egypt is 
also absent on State service, and so is an officer who in any other 
capacity leaves the City in the discharge of public duty. 4. The 
Divine Pius laid down the same rule for soldiers who serve in the 
Urban Cohorts. 5. The question has been raised whether an 
officer who is sent to put down malefactors is absent on State 
service ; and it was held that he was. 6. We may add the case 
of a civilian who joins an expedition by the order of an officer 
of consular rank and is killed in action ; in which case the relief 
under discussion is granted to his heir. 7. A man who has gone 
to Rome on State service is held to be absent on State service. 
Again, if he should depart from his own country on State service, 
even if he is free to go through the City, he is absent on State 
service. 8. Similarly, in the case of a man who is in some 
province, from the moment of his leaving his house, or, where he 

^ For delati read relati. Cf. M. 

- For curarent read curam agerent. Cf. M. 



268 Restitution after twenty-five [book iv 

has taken up his abode in his own province in order to act as a 
government official, from the moment of his beginning to transact 
public business, — he is treated like a person who is absent. 9. A 
man is absent on State service on his way to the camp and on his 
way back, as one who is going to discharge the duties of a soldier 
must go to the camp and return from it. According to Vivianus 
it was laid down by Proculus that a soldier who is away on furlough 
is absent on State service as long as he is on his way home or on 
his way back, but whilst at home he is not absent. 

36 Ulpianus {on the lex Julia et Papia 6) We regard people 
as absent on State service only when they are absent on no aifairs 
of their own, but under compulsion. 

37 Paulus {on the, lex Julia et Papia 3) Persons who act as 
assessors in their own province beyond the time allowed by 
Imperial enactments are not regarded as absent on State service. 

38 Ulpianus {on the lex Julia et Pajna 6) Where a man is 
allowed by the Emperor to act as assessor in his own province by 
way of special indulgence, I should say that he is absent on State 
service ; but, if he acts in the same way without permission, we 
are bound to say that, as in so doing he commits an offence, he 
does not enjoy the privileges of those who are absent on State 
service. 1. A man will be regarded as absent on State service 
for so long as he is occupying some official post ; but as soon as 
his official duties are discharged, he at once ceases to be absent on 
State service ; however, the law will allow him for his return a 
certain period of time to be reckoned from the moment when he 
ceases to be absent on State service, viz. so much time as he 
required in order to return to the City ; and it will be keeping 
within bounds to allow him the same period as the statute in that 
behalf allows to a pro'ses^ who is returning. Consequently, if he 
goes out of the way for some object of his own, there can be no 
doubt that the time so spent will not be given him over and above; 
the time will be reckoned within which it is in his power to return, 
and as soon as it is ended it will be said that he has ceased to be 
absent on State service. No doubt if he is prevented from con- 
tinuing his journey by reason of sickness, something will be allowed 
to considerations of humanity, just as some account is taken of 
severe weather, or difficulties of navigation, or any other accidental 
hindrance. 

1 After renertentihus read praesidibus. Cf. M. 



TIT. vi] Restitution after twenty -Jive 269 

Paulus {Sentences 1) Where a man who is going to be 
absent on State service leaves a procurator who is able to defend 
an action on his behalf, no application that he makes for restitution 
in integrum will be entertained. 

Ulpianus {Opinions 5) If a soldier is in a position to take 

criminal proceedings at a time when he is acting in the service of 
the State, he does not lose the power to take them. 1. Where a 
man has been detained on an island in pursuance of a penal 
sentence in respect of which he has obtained restitution m inte- 
grum, and it is shown that during his detention some other person 
has taken possession of a portion of his property of which he was 
not deprived by the sentence, what is so taken must be restored so 
as to put him in his old position with reference to it. 

JuLiANUS {Digest 35) A man leaves a legacy to Titius, pro- 
vided Titius should be in Italy at the testator's death, or he leaves 
him so much a year, so long as he sliould be in Italy. If Titius 
gets the aid of tiie Prtetor on the ground that he was excluded 
from the legacy owing to his being absent on State service ; he is 
compellable to make good any ^deicommissum which is left at his 
charge. Note by Marcellus. Can any one doubt, indeed, that 
where an inheritance is restored to a soldier which he had lost 
owing to absence on State service, the title to legacies and Jidei- 
commissa will not be impaired ? 

Alfenus (Digest 5) A man cannot be said with truth to be 
absent on State service, when he has undertaken a legation with a 
view to his own private business. 

Africanus {Questions 7) If a man stipulates for so much a 
year so long as he or the promisor shall be in Italy, and after that 
it happens to one of the two to be absent in the service of the 
State, it is the duty of the Prsetor to give an utilis actio. The rule 
is the same if the stipulation were in such terms as the following : 
"if such a one should be at Rome for the next five years," or "if 
he should not be at Rome, do you promise to pay a hundred ? " 

Paulus {on Sabinus 2) A man who is absent on State 
service will not get restitution if he suffers hurt in any matter in 
respect of which he would have incurred loss even if he had not 
been absent on State service. 

Sc^voLA {Rules 1) Soldiers in general who cannot leave 
their standards save at their own i)eril are held to be absent on 
State service. 



270 Restitution after twenty-Jive [book iv 

46 Mabcianus {Rules 2) A man who was absent on State 

service will have a right to restitution even against one who was 
himself also absent on State service, if he has good reason to com- 
plain that he has suffered a loss. 



VII. 

On transfers made for the purpose of varying the 

CONDITIONS of A TRIAL. 

1 Gaius {on the provincial Edict 4) The proconsul does all 
he can to secure that no man's legal position shall be prejudiced 
by the act of another ; and, being aware that the course of a trial 
often gives a man a great deal more trouble where he has to deal 
with a different opponent from the one he began with, he took 
measures to prevent this mischief by laying down that, if any one 
should tranfer the property in dispute to another so as to put 
some one else in his own place as a party to the suit with the 
deliberate purpose of prejudicing his opponent, he should be liable 
to an action in factum in which the measure of damages would be 
the interest the other litigant had in not having a substituted 
opponent to deal with. 1. Accordingly a party will be liable if he 
brings in as opponent some one who belongs to a different province 
or is a person of superior resources ; 

2 Ulpianus {on the Edict 13) or any one who is likely to 
give trouble to the other side : 

3 Gaius {on the provincial Edict 4) because, if I take pro- 
ceedings against a man who belongs to another province, I am 
obliged to do so in his province, and no one can contend on equal 
terms with a person of superior resources. 1. Again, if the de- 
fendant manumits a slave who is the subject of the action, the 
plaintiff is put in a more disadvantageous position, because the 
Prastor always favours liberty. 2. Again, if you transfer to another 
a piece of ground on wliich you have made some structure exposing 
you to an Interdict quod vi aut clam [at my hands], or to an 
action to keep off raiuwater {aquae pluvice arcendce), this is recog- 
nised as putting me in a disadvantageous position, because, if my 
proceedings had been taken against you, you would have had to 
remove the structure at your own expense ; but, as it is, my action 
has to be brought against a different person from the one who did 



TIT. vn] Transfer to vary trial 271 

the act, and, consequently, I am compelled to remove the structure 
at my own expense ; the law being that whenever a man is in 
possession of something which was constructed by a third person, 
he is only liable to the proceedings in question so far as to be 
compellable to allow the structure to be removed. 3. If I give 
you a notification of novel structure {opus novum), after which 
you dispose of the spot, and the purchaser completes the work, it 
is held that you are liable to the action under discussion, on the 
ground that I cannot take proceedings in pursuance of the notifi- 
cation of novel structure against you, because you have not con- 
structed anything, nor can I against your alienee, because I did 
not give him the notification. 4. From all this it is clear that, 
whereas the Proconsul promises to grant restitution m mtegrum, 
when the action is thereupon brought, it will be the duty of the 
judge on motion to let the plaintiff" have by way of damages an 
amount^ representing the interest which he would have had in not 
having to deal with a substituted opponent ; he may, for example, 
owing to there being such a substitute, have gone to some expense 
or suffered some other inconvenience. 5. Suppose however the 
party against whom the action in question can be brought is ready 
to submit to an utllis actio, so as to put the plaintiff on the same 
footing as if he (such defendant) were still in possession ? In that 
case it is very reasonably held that the action founded on this 
Edict will not be allowed against him. 

Ulpiantjs {on the Edict 13) Again, if the property comes 
to be acquired by usus by the person to whom it was transferred, 
so that no action can be brought to recover it from him, this Edict 
applies. 1. Moreover it may happen that a man's possession is 
terminated without any dolus malus, but still the change was 
effected in order to alter the conditions of the trial ; and there are 
many other cases of the same kind. On the other hand a man 
may cease to be in possession, and that with dolus malus, and 
yet he may not have made the change with a view to altering the 
conditions of the trial, so that he incurs no liability under the 
terms of the Edict : as a man does not transfer property who 
simply abandons possession. However the Praetor does not find 
fault with the behaviour of a man who shows this anxiety to be rid 
of property, where his object is to avoid being exposed to constant 
litigation about it, — indeed such a very unassuming resolution, 
proceeding as it does from the party's hatred for actions at law, is 

^ For tantum judicis read judicis tantum. Cf. M. 



272 Transfer to vary trial [book iv 

not a thing to be censured, — the Praetor only deals with the case 
of one who, without having any wish to lose the property, trans- 
fers the defence to another, so as to give the plaintiif, as oppo- 
nent instead of himself, some person who will give him trouble. 
2. Pedius (b. 9) declares that this Edict deals not only with trans- 
fers of ownership, but transfers of possession too ; otherwise, he 
says, if the defendant to an action in rem assigns the possession to 
some one else, he will avoid liability. 3. But where a man's reason 
for putting another in his place as party to the action is bad health 
or old age or urgent business, this is not a case in which he is 
liable under this Edict, as the Edict refers expressly to dolus 
malus (malicious contrivance) ; indeed otherwise it would amount 
to prohibiting the very practice of carrying on litigation through 
procurators, as the property is generally transferred to them, if 
the occasion requires it. 4. The Edict comprises the case of real 
servitudes, provided the transfer is made with dolus malus. 5. The 
measure of damages in this action is the extent of the plaintiff's 
interest; consequently, if he was not really owner, or the slave 
tranferred died without any fault of the transferor's, the action 
cannot be brought, unless the plaintiff had some interest on inde- 
pendent grounds. 6. The action is not for vindictive damages, it 
is an action to recover property or debt in pursuance of the 
judge's intimation ; hence it is allowed to the heir ; but against 
the heir, 

5 Paulus {on the Edict 11) or any one similarly placed, 

6 Ulpianus {on the Edict 13) or after the lapse of a year, it 
is not allowed, 

7 Gaius {on the provincial Edict 4) because it is meant for 
the recovery of property, though, at the same time, it may be said 
to be founded on a delict. 

8 Paulus {on the Edict 12) A man is liable under this Edict 
even where he produces a thing on being called upon, if he does 
not, on the intimation of the judge, put the case at law on its 
original footing. 1. The Praetor says : " or any transfer made for 
altering the conditions of a trial " ; this refers to the conditions of 
a future trial, not of the one already proceeding. 2. A man is 
regarded as transferring a thing even where he sells what belongs 
to some one else. 3. But if he makes the transfer by appointing 
an heir or bequeathing a legacy, the Edict will not apply. 4. If a 
man transfers something and then takes it back, he will not be 
liable under the Edict. 5. A man who makes his vendor take 



TIT. vn] Transfer to vary trial 273 

back what he sold, by way of redhibition, is not held to get rid of 
property in order to alter the conditions of a trial. 

Paulus {on the Edict of the curule Ediles 1 ) Because, when 
the slave is given back by way of redhibition, everything is put on 
its former footing ; so that the party who returns the thing is not 
held to have disposed of it in order to vary the conditions of a 
trial, — unless, indeed, the party restores the slave in this manner 
with the very object in question, and, except for that, would not 
have restored him at all. 

Ulpianus {on the Edict 12) Indeed even if, where you 

desire to sue me for something at law, I deliver it to another in 
pursuance of an obligation in that behalf, the Edict will not apply. 
1. If the guardian of a boy under age, or the agnate [curator] of a 
lunatic transfers the property, there is an utilis actio open, as the 
parties themselves under guardianship or curatorship are incapable 
of entertaining the fraudulent intent. 

The same {Opinions 5) Where a soldier applied for leave 
to bring an action in his own name for landed property which he 
declared to have been given him gratuitously, he was answered 
that if the gift was made in order to vary the conditions of a 
trial, the action ought to be brought by the previous owner, so as 
to let this latter have the credit of bestowing the actual property 
on the soldier, and not a mere right to sue some one. 

Marcianus {Institutions 14j If a man should dispose of 
[his share in] a piece of property in order to avoid having to defend 
an action communi dividuyido, he is forbidden by the Lex Ldcinnia 
to bring an action of the same kind himself; his object might, 
for instance, be to contrive that some purchaser in a commanding 
position should make a bid for it, and get the property for a low 
price, so that by that means he might afterwards recover it himself. 
After this if the party who transferred his share should desire to 
bring an action communi dividundo, he will not get a hearing ; 
and if the purchaser should wish to take proceedings, he is pro- 
hibited doing so under that head in the Edict in which it is 
provided that a man shall not transfer property in order to vary 
the conditions of the trial. 



M. J. 18 



274 On arbitrations [book iv 



VIII. 

On matters referred : on persons who undertake arbi- 
trations WITH A VIEW TO PRONOUNCING AN AWARD. 

Paulus {on the Edict 2) Arbitration is framed on the model 
of judicial trials, and its object is to put an end to litigation. 

Ulpianus {on the Edict 4) An arbitration is held not to 
give ground for an exccptio, but for an action for a penalty. 

The same {on the Edict 13) According to Labeo, where a 
matter is referred to arbitration, and an award is given by means of 
which a person is to be released by a youth under twenty-five from an 
action on guardianship, the Praetor ought not to uphold the award, 
and no action will be allowed to recover the penalty due in pur- 
suance thereof. 1. However true it is that the Praetor does not 
compel any one to undertake an arbitration, since such an office 
is optional and at will, and there is no obligation to exercise 
jurisdiction ; nevertheless, where a man has once undertaken the 
duty of arbitration, the Praetor holds that the matter is a proper 
subject for his care and close attention ; not merely because the 
Praetor is anxious that disputes should be set at rest, but because 
it is not right that people should be disappointed who have chosen 
that particular person to decide between them under the impression 
that he was an impartial judge. Suppose that after the case had 
been already once or twice gone into, the private affairs of both 
parties laid bare, and secret features of the matter disclosed, the 
arbitrator were, out of partiality for one side, or because he was 
influenced by corrupt motives, or for any other reason, to decline 
to give an award : can any one say that in such a case it would not 
be perfectly just that the Prsetor should have to interpose, so as to 
make the arbitrator discharge the office which he had undertaken ? 
2. Tiie Pra3tor says " A man who undertakes arbitration after 
mutual submission with promises to pay money," etc. 3. Let us 
consider the personal position of arbitrators. There is no doubt 
that, whatever an arbitrator's rank may be, the Praetor will compel 
him to discliarge thoroughly the office he has undertaken, even 
if he is a consular person, unless he should be placed in some 
magisterial or other authority, such as that of consul or praetor, as 
the Praetor has no power over those in such positions ; ^ 

' For hoc read hos. Cf. M. 



TIT. vin] On arbitrations 276 

4 Paulus {on the Edict 13) there being no way in which 
magistrates can be coerced who are of higher or equal authority 
[as compared with the officer who seeks to coerce them], nor does 
it matter whether they undertook the office during their tenure 
of their present magistracy or before. Inferior officers can be 
compelled to act. 

5 Ulpianus {on the Edict 13) Indeed, even a son under 
potestas can be compelled. 

6 Gaius {on the provincial Edict 5) Moreover, it is said that 
a son under potestas can be arbitrator in a concern of his own 
father's ; in fact, the common opinion is that he can even be 
a judge. 

7 Ulpianus {o7i the Edict 13) Pedius says (b. 9) and so does 
Pomponius (b. 33) that it is a matter of small account whether an 
arbitrator is fi-eeborn or a freedman, whether he enjoys an un- 
blemished reputation or is marked with ignominy. Labeo says 
(b. 11) that a reference for arbitration cannot be made to a slave ; 
and this is true. 1. Hence Julianus says that, if a reference is 
made to Titius and a slave, then Titius himself cannot be compelled 
to give an award, because he undertook the arbitration jointly 
with some one else, although, he adds, tiiere is no such thing as 
the arbitration of a slave. But how will it be if Titius pro- 
nounces an award ? In that case the penalty will not become due, 
because he does not pronounce the award under the conditions he 
engaged for. 

8 Paulus {on the Edict 13) But if the terms of the submission 
were to the effect that the award of either party singly should be 
valid, then Titius, he says, can be compelled to act. 

9 Ulpianus (on the Edict 13) Again, if the reference is made 
to a slave, and he pronounces an award after he has obtained his 
freedom, I should say that if he acts with the consent of the 
parties when he is a free man, it is valid. 1. But a reference 
should not be made to a boy under age, or a lunatic, or a deaf 
man, or a dumb man, — so Pomponius says (b. 33). 2. When a 
man is a judge, he is forbidden hj the lex Jidia to undertake an 
arbitration in the same matter that he has before him as judge, or 
to order a reference to himself; and if he should pronounce an 
award, no action for the penalty will be allowed. 3. Other cases 
might be added of persons who are not compellable to make an 
award, for instance, those in which the arbitrator is clearly corrupt 

18—2 



276 On arbitrations [book iv 

or acts on some dishonorable motive. 4. Julianus says, if botli the 
contending parties give the proposed arbitrator a bad name, the 
Praetor ought not to dispense with his services as a matter of 
course, but only on cause shown. 5. According to the same 
writer, if the parties treat the arbitrator's authority with contempt 
and go to the Court 

10 Paulus (on the Edict 13) or to some other arbitrator, 

11 Ulpianus (on the Edict 13) and after that come back to 
the first arbitrator, the Prsetor ought not to compel him to go into 
the case, the parties having put such a slight upon him as to reject 
him and go to some one else. 1. The arbitrator, he says, is not to 
be compelled to pronounce an award, unless a regular submission 
was made. 2. Where the Prsetor speaks of " mutual engagements 
to pay," this must not be understood to imply that there is on both 
sides a promise of a penal sum of money, to be payable if either 
party should refuse to abide by the arbitrator's award ; but to 
include the case of anything else being promised by way of a 
penalty ; we find this in Pomponius. Suppose then goods are 
placed in the hands of the arbitrator, on the understanding that 
he is to give them to the successful party, or that, if either party 
should refuse to obey his award, he is to give such goods to the otlier, 
will he be compelled to pronounce an award ? I should say that 
he will. A similar rule holds where a specific quantity [of things 
determined in kind] is left in his hands with the same object. 
On the same principle therefore where, in the stipulations made, 
one man promises a thing and another money, the submission is 
complete, and the arbitrator will be compelled to pronounce his 
award. 3. In some cases, as Pomponius tells us, the mutual 
promises can be very well made by bare agreement ; for example, 
where the two parties are mutually indebted, and they agree that 
if either of them should refuse to obey the arbitrator's award, he 
shall not sue for what is owed him by the other. 4. Again Julianus 
says that the arbitrator is not to be compelled to give an award, if 
one party makes the promise and the other does not. 5. He holds 
the same where the submission involves the promise of a penalty 
under a condition, for instance, '* so many thousands, if such a ship 
comes back from Asia"; as the arbitrator cannot be compelled to 
pronounce an award until the condition is fulfilled, for fear lest his 
award should have no efiect, through the failure of the condition. 
Pomponius has the same thing {on the Edict 33). 

12 Paulus {on the Edict 13) In this case perhaps the only 



TIT. viii] On arhitratioiis 277 

thing giving ground for an application to the Prsetor will be 
the desire that, if the time appointed in the reference can be 
enlarged, an order may be made accordingly. 

13 Ulpianus {on the Edict 13) Pomponius says that if one 
party has a formal release given him of the penal sum agreed 
upon, the arbitrator ought not to be compelled to give an award. 

1. The same writer says also that if the submission is of my claims 
only, and I stipulated for a penal sum to be paid by you, it is a 
point worth considering whether this is any submission at all. 
But I do not see myself what is his difficulty ; if his point is that 
the agreement only refers the claims of one of the parties, there is 
uo reason in his remark, as it is quite open to parties to refer one 
single question ; but if it is that the formal promise is only made 
on one side, this is to the purpose. At the same time if the 
promisee in this stipulation is the party who eventually sues, it 
may be said that there is a good submission, because the party 
who is sued has a sufficient defence ; for example, he can plead 
the pactum by way of exceptio ; as for the party who sues, if the 
arbitrator's award is not obeyed, he has got the formal promise 
to rely upon. However, I do not think this argument is sound ; 
granting that the party has a good exceptio, this is not a sufficient 
reason for the arbitrator being compellable to deliver an award. 

2. A man is held to have undertaken an arbitration, so Pedius says 
(b. 9), when he has assumed the duties of judge and promises to 
give a decision which shall finally dispose of the matters in dispute. 
But where, the same writer proceeds, the supposed arbitrator only 
intervenes so far as to try whetiier the parties will allow their 
dispute to be disposed of by his advice and authority, he cannot 
be held to have undertaken an arbitration. 3. A man who is 
arbitrator in pursuance of a submission is not compelled to pro- 
nounce an award on those days on which a judge is not compelled 
to deliver judgment, unless the time agreed upon in the submission 
is on the point of expiring and it cannot be enlarged. 4. Similarly, 
if he should be pressed by the Prsetor to pronounce his decision, 
it is perfectly just that he should have some time allowed him for 
doing so, if he declares on oath that he has not yet formed a clear 
opinion about the matter. 

14 Pomponius {on Q. Mucins 11) If the formal reference is 
made without a day being assigned, it is absolutely necessary that 
the arbitrator should appoint a day, I mean subject to the consent 
of the parties, and that the case should be gone into accordingly ; 



278 On arbitrations [book iv 

if he omits to do this, he can be compelled to give his decision at 
any time. 

15 Ulpianus {on the Edict 13) Though the Prsetor should in 
his Edict declare absolutely that he will compel the arbitrator to 
give a decision, still, in some cases, he ought to listen to what he 
has to say, and allow his excuses, on due cause shown ; suppose, 
for instance, the parties give him a bad name, or there comes to 
be some deadly enmity between him and the parties or one of 
them, or he can claim to be excused the duty on the ground of his 
age, or a fit of illness occurring to him after the reference, or the 
necessity of attending to his private affairs, or urgent occasion to 
go to a distance, or the duty of some Government office : all this is 
in Labeo. 

16 Paulus {on the Edict 13) Or the reason may be any other 
difficulty in which he is put after assuming the arbitration. But, 
in a case of ill-health or similar grounds of excuse, he may be 
compelled to postpone the matter, on sufficient cause shown. 
1. Where an arbitrator is engaged in a case of his own, Avhether 
of a public or private nature, he ought on that ground to be 
excused from adjudicating on the matters referred to him, at any 
rate where the time agreed cannot be enlarged ; if it can, why 
should not the Prsetor compel him to enlarge it, as he is able to do 
so ? This is a thing which may sometimes be done without any 
inconvenience^ to the arbitrator. If again both parties wish him 
to give the award, must we not say that, although no undertaking 
was given as to enlarging the time, still the arbitrator can only 
get an order relieving him of the necessity of proceeding, on the 
ground of his own case, on the terms of his giving his consent to 
the matter being referred to him afresh ? I assume in all this that 
the time is on the point of expiring. 

17 Ulpianus {on the Edict 13) Again if one of the parties 
executes a * cessio bonorum ' (assignment for the benefit of his 
creditors) Julianus informs us {Dig. b. 4) that the arbitrator cannot 
be compelled to give an award, because the party in question can 
neither sue nor be sued. 1. If the parties come back to the 
arbitrator after a long interval of time, then, according to Labeo 
he is not compellable to give an award. 2. Again, if there are 
more than one who undertook the arbitration, no single one can 
be compelled to give an award ; it must be either all or none. 
3. Hereupon Pomponius asks the following question (b. 33) : — 

1 Read districtione for distinctione. Cf. M. 



TIT. vni] On arbitrations 279 

Suppose a reference to arbitration is made in such terms that what- 
ever commends itself to Titius as examiner, Seius is to pronounce 
accordingly, which of the two is compellable to act ? I should say 
myself that such an arbitration is invalid, being one in which the 
arbitrator has not free power of pronouncing his opinion. 4. If 
the terms of the submission are that the parties shall abide by the 
award of Titius or Seius, then, as Pomponius says, — and our opinion 
is the same, — the reference is valid ; but the arbitrator who will 
be compelled to give the aAvard is whichever the parties agree 
upon. 5. If an agreement is made to refer the question to two 
persons, on the terms that, if they should disagree, tliey are to add 
a third, I should say that such a submission is void ; because they 
may disagree as to whom they shall add. But if the terms are 
that the third person so added is to be Serapronius, this is a good 
submission, because they cannot disagree as to whom they shall 
add. 6. But let us take a more general question, viz. this. If 
a reference is agreed upon to two arbitrators, must the Prsetor 
compel them to give a decision ? Tlie fact is that, considering how 
prone men are by nature to disagree, the matter referred is hardly 
likely ever to be settled. Where the number is odd, the reference 
is upheld, not because it is likely that all the arbitrators will agree, 
but because, even if they disagree, there is a majority whose 
decision can be adhered to. However the common practice is to 
refer the matter to two arbitrators, and then tiie Prsetor is bound 
to compel them, if they disagree, to choose some tliird person 
whose authority can be obeyed. 7. Celsus says {Dig. b. 2) if the 
reference is to three, then it is enough for two to agree, provided 
the third person is present as well : but, if he is not present, then, 
even though two agree the decision is void, because the reference 
was to more than two, and, if the third had been present, he might 
have brought the two over to his own opinion : 

Pomponius (Epistles and various passages 17) just as, where 
three judges are appointed, a judgment given by two who agree 
together in the absence of the third is invalid, because the judg- 
ment given by the majority of the judges is only upheld where 
it is clear that every one gave some judgment or other. 

Paulus {on the Edict 13) What kind of decision it is that 

the arbitrator gives is a question with which the Prsetor is not 
concerned, so long as his decision is in accordance with his real 
opinion. Accordingly if the matter was agreed to be referred, 
on the understanding that the arbitrator should pronounce some 



280 On arbitrations [book iv 

particular decision, this, says the same writer, is no arbitration 
at all, and according to Julianus {Dig. b. 4) the arbitrator cannot 
be compelled to give any decision. 1. An arbitrator is considered 
to give a decision when, in making his pronouncement, he intends 
that there should be an end of the whole dispute in pursuance 
of it. But where he has undertaken to arbitrate on a number of 
different points, then, unless he deals conclusively with all the 
matters in dispute, no award can be said to be given, and he will 
still have to be compelled by the Pra3tor to act. 2. This being 
the case, a fair question to consider is whether he cannot alter his 
decision ; and in fact it has been discussed as an independent 
question, supposing an arbitrator first orders something to be 
handed over and then forbids it, whether one ought to abide by 
his order or by his prohibition. Sabinus was of opinion that he can 
alter his decision. Cassius makes a good defence of his master's 
opinion, and says that Sabinus was not thinking of a decision which 
concludes an arbitration, but of an order made in the course of the 
case being got ready for trial ; suppose, for instance, he ordered 
the parties to attend on the calends (first day of the month), and 
afterwards told them to come on the ides (thirteenth or fifteenth) ; 
then (Cassius said), he has a right to change the day. But if he 
had passed judgment on the defendant or dismissed the plaintiff's 
case, then, as he would cease to be arbitrator, he could not alter 
his decision, 

20 Gaius {on the provincial Edict 5) as the arbitrator cannot 
correct his decision, even though he should have made a mistake in 
pronouncing it. 

21 Ulpianus {on the Edict 13) Suppose however he was 
appointed to decide several matters in dispute which were entirely 
independent of one another, and he has given a decision as to one, 
but not, so far, as to any other ; has he ceased to be arbitrator ? 
Let us consider whether he cannot alter his award as to tlie first 
question in dispute on which he has already pronounced. Here it 
makes a great deal of difference whether it was part of the agree- 
ment for reference that he should pronounce as to all the questions 
taken together, or it was not : if it was, then he can make an 
alteration, as he has not yet given his award ; but if he was equally 
at liberty to deal with the various questions separately, you may 
say that there are so many different references, so that, as far as 
the particular question is concerned, he has ceased to be arbitrator. 
1. If an arbitrator should express his award thus : that it appeared 



Trr. vin] On arbitrations 281 

to him that Titius did not owe anything to Seius ; tlien, even 
though he should not proceed to forbid Seius to sue for the money 
he claimed, still if Seius did sue, he must be held to act against the 
arbitrator's award : this was laid down by Ofilius and Trebatius. 
2. I should say that an arbitrator can appoint a particular day for 
payment, and this seems to be Trebatius's opinion too. 3. Pom- 
ponius says that where an arbitrator gives an award in terms which 
are not specific, it has no force ; for instance if he were to say : — 
"you must pay him what you owe him," or "the division you have 
made must be adhered to," or "you must accept the same pro- 
portion of your demand that you have paid your own creditors." 
4. Again if the arbitrator declares that no penalty is to be sued 
for in pursuance of the agreement for reference, I find it is said 
by Pomponius (b. 33) that this has no force ; and this is quite 
reasonable, as the question of penalty was not the subject of the 
reference. 5. According to Papinianus {Questions b. 3), where the 
day for hearing the question referred has passed, but the parties 
arrange for a later day and agree upon a fresh reference to the 
same arbitrator, but he declines to undertake the arbitration on 
the second reference, he cannot be compelled to undertake it, 
provided it was not owing to any default of his own that he did 
not discharge the duty before : but, if the delay was his own fault, 
it is perfectly just that he should be compelled by the Praetor 
to undertake the fresh arbitration. This all holds upon the 
assumption that no undertaking was given in the first agreement 
as to enlarging the time ; if any such was given, and he himself 
enlarged the time accordingly, then he remains arbitrator. 6. The 
expression "full reference" is employed to describe a reference 
which is expressed to be arranged "in respect of matters and 
questions in dispute " ; this will comprise all disputed points. But 
if only one matter is really in dispute, though the agreement should 
have been so made as to bespeak a " full reference," still all rights 
of action are saved which depend upon other grounds : the only 
real subject of a reference is whatever it was agreed to refer. 
However the safer plan is, where a man only desires an arbitration 
on one point, to specify that particular point in the agreement 
to refer and no other. 7- The parties are not bound to comply 
with the award, where the arbitrator orders them to do something 
dishonorable. 8. If the parties come before the arbitrator within 
the time agreed upon, and he then orders them to come again after 
the time, no penalty will be due [from a defaulting party]. 9. If 
one of the parties should fail to appear because he is hindered by 



282 On arbitrations [book iv 

ill-health or by absence on State service, or by having to act as 
a magistrate, or for any other good reason, then, according to 
Proculus and Atilicinus, the penalty becomes payable ; still, if he 
is prepared to make a fresh agreement for reference to the same 
arbitrator, an action against him will be disallowed, or he can 
defend himself by an excejjtio. This however is only true where 
the arbitrator himself is prepared to undertake the fresh arbitration, 
since, as Julianus very properly says (Dig. b. 4), he is not to be com- 
pelled to undertake it against his will ; but in any case the party 
himself is freed from liability to a penalty. 10. If the arbitrator 
orders the parties to come before him, say, in some province, whereas 
the submission was made in Rome, it is a question sometimes asked 
whetlier he cannot be disobeyed with impunity. The better opinion 
is tliat expressed by Julianus (b. 4), that the place implied in the 
agreement to refer is whatever place the parties intended their 
engagements to apply to, consequently the arbitrator may be 
disobeyed with impunity if he orders the parties to attend at some 
other place. How then if it does not appear what place the parties 
did intend ? The best rule would be that the place implied must 
be held to be the place where the agreement was made. Suppose 
however he should require them to attend in some part of the 
suburbs : Pegasus admits that this is valid. My opinion is that 
this is only so where the arbitrator is a man whose standing and 
repute allow of his discharging his office habitually in out-of-the-way 
places, and the parties can easily get to the place. 11. But if he 
should call upon them to come to some low place such as a tavern 
or a brothel, then, as Vivianus says, he can beyond all doubt 
be disobeyed with impunity ; and Celsus confirms this opinion 
(Dig. b. 2). Thereupon the latter writer raises this nice point : 
suppose the place assigned is one in which one of the parties 
cannot appear consistently with self-respect, but the other can ; 
whereupon the one who could come without disgracing himself 
fails to come, and the other, whose self-respect is injured by his 
coming, does come, — will the penalty agreed upon by the terms 
of reference be payable on the ground^ that the act which was 
promised was not executed? Here Celsus is very properly of 
opinion that the penalty is not incurred ; it would be absurd, he 
said, that the order should be good as applied to one of the parties 
and not as applied to the other. 12. We may next consider, 
supposing a party should decline to hand over what the arbitrator 
orders, how long must he be in default for an action on the stipu- 

1 Dele an. M. 



TIT. vrn] On arbitrations 283 

lation to be admissible? As to this, if no day was named, then, 
as Celsus says {Dig. b. 2), some moderate interval of time is implied ; 
and, when this has passed, the penalty can be sued for at once ; 
still, he says, if the party complies with the award before joinder 
of issue in tlie action on the stipulation, that action cannot be 
proceeded with ; 

Paulus {on the Edict 13) unless indeed the plaintiff in the 
action had some particular interest in the money to be awarded 
being paid immediately. 

Ulpianus {on the Edict 13) Celsus tells us that if an arbi- 

trator orders something to be given by the first of September, and 
it is not given, then, even if it is oifered subsequently, still, the 
penalty contracted for having once become due, the right of action 
in pursuance of the submission is not lost, since it remains a fact 
that the thing was not handed over before the first of the month : 
but, he adds, if the party accepted it when it was tendered, he 
cannot sue for the penalty, as he can be barred by an exceptio 
doli. It is a different case where the order simply was to give 
[without mention of time]. 1. The same author says that if the 
arbitrator orders me to pay something to you, and you are pre- 
vented from receiving it by ill-health or on some other sufficient 
ground, then, in the opinion of Proculus, the penalty cannot be 
sued for [by you], even if you are ready to receive the money after 
the first of the month, and I decline to pay it. However, he him- 
self holds very rightly that there are two orders made by the 
arbitrator, one to pay the money and the other to pay by the first 
of the month ; consequently, that even if you do not incur the 
penalty by not paying by the first of the month, because it was 
not your fault, still you do incur a penalty with respect to the 
other part by not paying at all. 2. The same author says that 
abiding by an award cannot be anything else than taking measures, 
so far as it depends on one's self, to procure that the award shall 
be complied with. 3. Celsus says further that if the arbitrator 
orders me to pay you a sum of money on a particular day, and you 
on that day decline to receive it, it may fairly be argued that as a 
bare matter of civil law the penalty is not incurred ; 

Paulus {for the Edict 13) but nevertheless, he adds, if, 
subsequently to that, you are ready to receive it, I cannot with 
impunity decline to pay it, as up to that time I have not paid. 

Ulpianus {on the Edict 13) Labeo says that where it was 



284 On arbitrations [book iv 

provided in the agreement for reference that the arbitrator shonld 
pronounce his award on all points on the same day, and that he 
should be at liberty to enlarge the time, then, if such arbitrator, 
after pronouncing an award on some points and not on others, 
enlarges the time, the enlargement is valid, and the award he has 
pronounced can be disobeyed with impunity. This view of Labeo 
is approved of by Pomponius, and I hold the same opinion, as he 
has not discharged his duty in respect of the award. 1. These 
words " [he may] enlarge the time for arbitration " give the arbi- 
trator no power beyond that of postponing the day of decision ; 
consequently he cannot reduce or alter the scope of the original 
reference, so that he will be bound to consider the other points too, 
and give one award as to the whole. 2. If in the original agree- 
ment for reference the promises were made with a surety, then, 
according to Labeo, the deferred hearing must be on the same 
terms. However, Pomponius is in doubt whether the sureties 
must be the same or may be others equally substantial : what is 
to be done, he asks, if the original sureties decline to act again ? 
However, I should say, if they decline, others must be found who 
are equally suitable ; 

26 Paulus [on the Edict 13) so that it shall not be in the 
power of sureties who decline to renew their engagement to cause 
the penalty to be incurred. A similar rule must be applied if the 
sureties die. 

27 Ulpianus {on the Edict 13) The arbitrator can enlarge the 
time either in his own person, or through a messenger, or by letter. 
1. If the agreement to refer made no mention of the heir or other 
successor, it drops on the death of either party. The present 
practice is not in accordance with Labeo's opinion, who held that 
if the arbitrator orders a man to pay a sum of money and tlie latter 
dies without paying it, the penalty may be demanded, even though 
his heir is ready to tender the money. 2. The parties are bound 
to abide by the award which the arbitrator pronounces on the 
question referred to him, whether it is just or unjust ; a person 
who agreed to refer the matter has only himself to blame [if he 
is not satisfied] ; a rescript of the Divine Pius ends thus : — '' the 
party must make up his mind to content himself with the award, 
even if it is not quite reasonable." 3. If there are several arbi- 
trators, and they pronounce different awards, the parties are free 
to decline to abide by their awards ; but if a majority agree, their 
decision must be followed, or else the penalty can be demanded. 



TIT. viii] On arbitrations 285 

Hereupon we find this question raised in Julianus : — suppose there 
are three arbitrators and one orders 15 to be paid, the second 10, 
and the third 5 ; which award is to be followed ? to which Julianus 
says 5 must be given, as all the arbitrators agreed to the extent 
of that sum. 4. If any one of the parties fails to attend, then, 
seeing that what he does prevents the arbitration being held, the 
penalty can be demanded. On the same principle an award pro- 
nounced when the parties are not all present will have no force, 
unless it was specially provided in the submission that an award 
should be given even if one or both parties should be absent ; 
and it is the party who failed to attend who incurs the penalty, 
because it is owing to him that no arbitration is held [as intended]. 
5. An arbitrator is held to pronounce his award in the presence of 
persons when those before Avhom he pronounces it are persons 
possessed of intelligence ; but it cannot be said to be pronounced 
" in the presence of" a lunatic or one who is deranged ; indeed, an 
award is not^eld to be pronounced " in the presence of" a boy 
under age, unless it is done before his guardian ; this is what 
Julianus says on the above points {Dig. b. 4). 6. If either party 
being present obstructs the arbitrator in pronouncing his award, 
the penalty can be sued for. 7. If no penalty was included in the 
terms of the submission, but the party simply promised that the 
award should be complied with, there will be an action against 
him for unliquidated damages. 

Paulus {on the Edict 13) It is of no consequence whether 

the sum agreed on by way of penalty is specific or unliquidated, 
for instance, the agreement may be in the terms " whatever the 
matter may be worth." 

Ulpianus {on the Edict 13) If an action for money is 
brought against a person who the arbitrator ordered should not 
be sued for it, this is a transgression of the arbitrator's award. 
How then, if the action is brought against a surety of the same 
person, will tlie penalty be incurred ? I should say that it will, 
and so Sabinus says, since the action is virtually against the 
principal. If on the other hand I agree with the surety to refer 
the matter as far as he is concerned, but I sue the principal, the 
penalty is not incurred, unless the surety had an interest in my 
not suing. 

Paulus {on the Edict 13) Where, after an agreement to 
refer some matter to arbitration, one of the parties sues in the 
ordinary court, some authorities hold that the Praitor will not 



286 On arbitrations [book iv 

interfere to compel the arbitrator to pronounce an award, because 
now there can be no penalty payable in the matter, any more^ than 
if the agreement to refer were annulled. However, if this view 
should prevail, the result will be that a man who regrets that he 
made an agreement to submit a matter to arbitration will have it 
in his power to evade the submission. Accordingly it must be 
held that the party in question has incurred the penalty, and an 
action to enforce it can be carried through before the judge in the 
regular way. 

31 Ulpianus {on the Edict 13) When anything is done contrary 
to a promise made on stipulation, the promise can only be sued 
upon where the breach was committed without there being any 
dolus malus (malicious contrivance) on the part of the promisee ; 
a promise can only be sued upon at all subject to this proviso, that 
a man is not to derive a benefit from his own dolus. But if an 
agreement to refer contains a special clause providing for the case 
of something in the matter being done with dolus, then the party 
who acts with dolus can be sued upon the promise ; accordingly, 
where a man uses bribes or solicitation, so as to corrupt the arbi- 
trator or the pleader on the other side, or some one of those to 
whom he has committed his own case, he can be sued on the clause 
which refers to dolus ; also where he circumvents his opponent by 
craft ; in short, if he behaves with any dohis in the course of the 
proceedings, the action ex stipulatu will be available ; conse- 
quently, if such opponent desires to proceed by an action de dolo, 
it will not be allowed, as he has the action ex stipulatu. If however 
such a clause as above mentioned is not inserted in the agreement, 
there is room for an action or an excepttio founded on dolus. Such 
an agreement for reference, that is, one which includes a clause 
mentioning dolus, is a complete submission. 

32 Paulus {on the Edict 13) In the case of a submission to 
arbitration no attention is paid to the question whetlier the penalty 
is gieater or less than the amount which the matter at issue is 
worth. 1. Wlien the penalty is once incurred the arbitrator will 
not be compelled to pronounce an award. 2. If a woman is a party 
to a submission on behalf of a third person, this is no valid submis- 
sion of a money claim, because it is a case of intervention on behalf 
of some one else. 3. On the whole, it comes to this : the Praetor 
is not to interfere where either, to begin with, there was no sub- 
mission, or there was one, but it is uncertain as yet whether it is 

^ Read esset for est. 



TIT. vni] On arbitrations 287 

one in pursuance of which a penalty can be sued for, or the penalty 
has ceased to be recoverable, because the contract is avoided by 
lapse of time, or by death, or by a formal release, or by a judicial 
decree, or by simple agreement. 4. As to the question whether, 
where some priestly office devolves on an arbitrator, he will be 
compelled to pronounce an award, this is a point to consider about 
[but probably he will not] ; an excuse on that ground would be 
allowed not merely out of regard to the office of the person himself, 
but to give glory to God, to whose worship a priest ought to give 
himself up. However if he assumed such an office after he was 
chosen arbitrator, then even a priest is bound absolutely to give an 
award. 5. Again, the arbitrator is not to be compelled to act if 
the matter has been compromised, or a slave, who was to be the 
subject of the arbitration, is dead ; unless indeed, in this last case, 
the parties have some interest in the matter being proceeded with. 
6. Jidianus lays down the following without further discrimi- 
nation ; — if, owing to a mistake, parties go to an arbitrator on a 
question about some delict which entails infamia, or about some- 
thing which the law makes a subject for a criminal trial, as for 
instance a question of adultery or murder or the like, the Praetor 
ought to forbid the arbitrator to give a decision, and if he gives 
any, the Preetor ought not to allow it to be put in force. 7. If a 
reference is agreed upon in respect of a question at issue at law as 
to a man's freedom, the arbitrator, as is very reasonable, will not 
be compelled to give an award ; because the law favours liberty, 
so that the matter ought to go to a higher tribunal. The rule is 
the same where the question is as to whether a person is freeborn 
or a freedman, also where it is alleged that freedom has to be given 
in pursuance of a fidei-commissum. The same rule applies to an 
actio popularis. 8. If one of the parties to a submission is a slave, 
in the opinion of Octavenus, the arbitrator cannot be compelled to 
pronounce an award, and, if he does pronounce one, no proceedings 
can be allowed for the penalty in the nature of an action de pecidio. 
If the other party to the submission is a free man, it is a question 
worth considering whether proceedings for a penalty can be allowed 
against him ; but, on the whole, I should say not. 9. Again, if a 
man is party to a submission in Rome, [then goes away,] and after- 
wards comes to Rome as a legate, in this case the arbitrator is not 
compellable to give an award, any more than the party himself, if he 
had before joined issue in an action, would be compelled in the same 
case to prosecute it ; and it makes no difference whether the party 
was a legate on the first occasion too or not. But if he makes the 



288 On arbitrations [book rv 

submission now, being a legate at the time, then I should say that 
the arbitrator can be compelled to give an award ; because, if the 
party had under the same circumstances joined issue in an action 
at law, he would be bound to proceed with it. Some persons how- 
ever are in doubt on this point, though without sufficient reason ; 
but at any rate they would be in no doubt at all, if the question 
which the party agreed to refer while he was a legate were one 
arising upon a contract which he made while a legate ; because on 
such a question he would be equally compellable to sustain a trial 
at law. With regard to the point first mentioned, one question 
worth considering is whether, supposing the legate made the 
submission before [leaving Rome], the arbitrator can be compelled 
to pronounce an award on the legate's own application, as, on the 
principle first relied on, it might be held unjust to leave it in the 
legate's own power [to determine whether the arbitrator shall give 
an award or not]. However, this case will be treated in the same 
way as would be that of his desiring to proceed by an action at 
law, which he is quite free to do. f But such an arbitration is to he 
treated like an action brought in the regular way, so that if he 
wishes the arbitrator to 2)ronounce an award, he will only get a 
hearing where he is ready to defend his oivn case \} 10. If a man 
who had agreed with some one now deceased to refer a matter to 
arbitration should raise a claim to the inheritance judicially, then, 
if the arbitrator gives his award, it will prejudge the question of 
inheritance, consequently the arbitrator must be prevented from 
proceeding for the present. 11. The time agreed on for the arbi- 
tration may be enlarged, I do not mean, that is, when this has to 
be in pursuance of an agreement, but when it is necessary to get 
the arbitrator's order for the purpose, to prevent the penalty being 
incurred. 12. If an arbitrator attempts to conceal himself, the 
Prsetor ought to have a search made for him, and if he keeps away 
for a long time, he should be ordered to pay a fine. 13. Where an 
agreement is made to refer a question to several arbitrators, on the 
understanding that if '^ any one should pronounce an award, even 
standing by himself, the parties should abide by it, then, if all 
but one should be absent, still that one will be bound to give a 
decision ; but if the submission was on the understanding that all 
were to pronounce, or f that the view of the majority was to prevail,!^ 
the Prtetor ought not to put compulsion on the individual arbi- 

^ Apparently some confusion. 

2 After ut ins. si. Cf. M. 

3 Text hopeless; the sense must be as above. 



TIT. viii] On arbitrations 289 

trators separately, as no individual arbitrator's view will determine 
the penalty. 14. In a case where an arbitrator seemed clearly 
to be an enemy of one of the parties on independent grounds, 
where moreover he was called upon, on special evidence produced, 
not to pronounce an award, but^ he nevertheless proceeded to 
pronounce one, though no one pressed him to do so, whereupon a 
complaint was made to the Emperor Antoninus, the note which 
the Emperor made on the party's libel was that he could have an 
exceptio of dolus mains. The same Emperor being consulted by 
the judge before whom an action was brought for the penalty, his 
answer was that although no appeal could be brought, nevertheless 
the action for the penalty could be barred by an exceptio of dolus 
malus. Accordingly that plea gives a remedy which amounts to a 
kind of appeal, as a legal means is furnished of having a rehearing 
after an arbitrator's award. 15. In discussing the duty of an 
arbitrator we must understand that the whole discussion must be 
founded on the particular terms of the submission, as the arbitrator 
cannot legally do anything but what it was provided by the agree- 
ment that he should be able to do ; accordingly he cannot decide 
just as he pleases, nor on whatever question he pleases, but only 
on the question wliich it was agreed to refer and in conformity with 
the agreement. 16. Questions have been raised as to pronouncing 
the award, and it has been held that it is not simply any award 
which the arbitrator chooses to pronounce that will be valid, though 
on some points there has been a diiference of opinion. I should 
say that the award is in fact not binding, if the arbitrator should 
declare that on such a point the parties must go to the court, or 
make a fresh submission, either to him or to some other arbitrator. 
In fact Julianus himself declares that he may be disobeyed with 
impunity, if he orders the pai-ties to go before another arbitrator, 
as otherwise the matter will never end, — though if he gives some 
such award as follows, that land must be delivered or security must 
be given, subject to the approval of Publius Msevius, the award must 
be obeyed. The above view is supported by Pedius : [he says 
that] in order to prevent arbitrations being prolonged or transferred 
to other arbitrators, who perhaps are hostile to [one of] the parties, 
the arbitrator ought to frame his award so as to put an end to the 
dispute ; whereas the dispute is not put an end to where the 
question is either postponed or transferred to some other arbitrator. 
The award, he adds, is partly on the question in what form security 
shall be given and who shall be sureties, and the decision on these 
1 After diceret read et. M. 

M. J. 19 



290 On arbitrations [book iv 

points cannot be delegated, unless the agreement was to refer to 
the arbitrator the very question on whose arbitration security should 
be given. 17. Again, if the arbitrator should require that someone 
else should be joined with him, where there is no such provision 
in the submission, this is no award ; an award can only be on the 
question referred, but the above was not referred. 18. If two 
principals make mutual stipulations, and then desire the case to be 
carried on before the arbitrators through their procurators, the 
arbitrator may require the parties themselves to be present as well ; 
19. indeed, if the submission expressly names the heir, he can call 
upon their heirs to be present too. 20. It is a regular part of the 
duty of the arbitrator to say how clear possession is to be given. 
Does it comprise the ordering^ an undertaking to be given that the 
principal will ratify what is done by his procurator ? Sextus Pedius 
holds that it does ; however there is no sense in this view, because, 
if the principal should not ratify, he will become liable on the 
stipulation. 21. An arbitrator can do nothing outside the terms 
of the submission, consequently it is necessary to add expressly 
any provision as to enlarging the time ; otherwise his order may 
be disobeyed with impunity. 

33 Papinianus {Questions 1) An arbitrator who is chosen in 
pursuance of a submission on the understanding that he may 
enlarge the time is at liberty to do so ; but he may not advance 
the hearing if the parties object. 

34 Paulus {on the Edict 13) If there are two correal creditors 
or debtors, and one of them refers a question to arbitration, and 
thereupon an award is made ordering that he shall not sue or shall 
not be sued, as the case may be, let us consider whether, if the 
other sues — or is sued — the j)enalty is incurred ; the same question 
arises in the case of two bankers who are co-creditors {qiiorimi 
nomina simul eunt). The truth is we might perhaps put them on 
the footing of sureties, if they are partners ; but, if tliey are not, 
then there is no action against you [by your co-debtor] though I 
sue'^ [him], and, though you should be sued [by my co-creditor], 
the action is not on my behalf. 1. If the penalty is once incurred, 
then I should say that the true rule is that there is an end of the 
submission, and the penalty cannot be incurred any more, unless 
the intention was that it should be incurred from time to time on 
each separate occasion. 

* After satis read tit detur. Cf. M. 
. 2 Read licet ego petam for nee ego peto. Hal. cf. M. 



TIT. vni] On arbitrations 291 

Gaius {on the provincial Edict 5) If a boy under age agrees 
to refer a matter without his guardian's concurrence, the arbitrator 
cannot be compelled to pronounce an award, (because, if the award 
should be against the boy, he will not be liable to pay the penalty,) 
unless the boy gave a surety who can be sued for the penalty. 
This is Julianus's opinion too. 

Ulpianus {on the Edict 77). If an arbitrator should, under 
compulsion from the praetor, give an award on a holiday {feriatis 
dicbits), and the penalty should be sued for in pursuance of the 
submission, it is clear that no exceptio is admissible, unless, by 
some^ statute, the very holiday on which the award was given was 
barred. 

Celsus {Digest 2) Where an arbitrator has ordered that 
neither party shall sue the other, then, if the heir of either sues 
in spite of the prohibition, he will incur the penalty; the object 
of going before an arbitrator is not to postpone a dispute but to 
put an end to it altogether. 

MoDESTiNUS {Rules 6) When a penalty is sued for in 

pursuance of a submission, the man who incurs the penalty will 
have an order made upon him to pay it, and it is of no consequence 
whether the other party had an interest in the award being com- 
plied with or not. 

Javolenus {extracts from Cassius 11) It is not every case 
of disobedience to the award of an arbitrator which causes the 
penalty to become recoverable in pursuance of the agreement 
between the parties, but only those cases in which the question 
at issue turned on the payment of money or the performance of 
some service. The same : — An arbitrator can punish contumacy in 
a party to the arbitration by ordering him to pay a sum of money 
to his opponent ; but a man is not to be reckoned contumacious 
because he did not set out the names of his witnesses to the 
satisfaction of the arbitrator. 1. Where an arbitrator orders 
the time agreed upon to be enlarged, in a case in which he was 
authorized to do so, the default of either party will afford ground 
for the penalty being demandable by the other. 

PoMPONius {extracts from various passages 11) An arbitrator 
ordered the parties to attend on the first day of January, and died 
before that day ; when the day came one of the parties failed 
to attend. In this case, beyond all doubt, the penalty was not 

^ Read aliqua for alia. Pothier, cf. M. 

19—2 



292 On arbitrations [book iv 

incurred ; indeed Aristo tells us he once heard Cassius say that no 
penalty was incurred in the case of an arbitrator himself failing to 
come to hold the arbitration. The above is in keeping with what 
is said by Servius, viz. that if it is the fault of the promisee that he 
fails to receive the money promised, the penalty is not incurred. 

41 Callistratus {^monitory Edict 1) As it is provided by the 
lex Julia that no one under twenty is to be comi)elled to be a 
judge, it is held that no one can be allowed to choose one under 
that age as judge in an arbitration ; consequently no penalty can 
be incurred through an award given by such a person. At the 
same time it has often been said that if a man who is over twenty 
but under twenty-five should without due reflection undertake to 
hear an arbitration case, under the circumstances relief would be 
given. 

42 Papinianus {Responsa 2) An arbitrator ordered that certain 
slaves should be handed over by a given day, and, as they were not 
so handed over, adjudged the party to pay so much to t\\Qjiscus by 
way of penalty, in accordance with the terms of the submission. 
By this award no rights are acquired by the Jiscus, but nevertheless 
the penalty promised can be demanded, because the party failed to 
do what was ordered by the arbitrator. 

43 Sc^vOLA {Responsa 1) A reference to arbitration was agreed 
upon of " all matters and disputes," by Lucius Titius and Msevius 
Sempronius. Thereupon, by mistake, Lucius Titius omitted in his 
application some particular matters, and nothing was said about 
them in the arbitrator's award. The question arose whether a 
fresh application could be made as to the matters so omitted. The 
answer was that it could, and that no penalty was incurred in 
pursuance of the submission ; but that if the party made the 
omission with malicious intent, then, though he could no doubt 
still apply, he would have to submit to the penalty. 

44 The same (Digest 2) A dispute arose on a question of 
boundaries between Castellianus and Seius, and an arbitrator was 
chosen in order that the question might be set at rest by his 
decision ; who accordingly gave his award in the presence of the 
parties and laid down the boundaries. The question was asked 
whether, on failure to observe the award on the side of Castellianus, 
the penalty was incurred in pursuance of the submission. I 
answered that if the arbitrator was not obeyed in respect of an 
award wiiich he made in the presence of both parties, the penalty 
was incurred. 



TIT. vm] On arbitrations 293 

Ulpianus {on Sabiniis 28) In arbitration cases, where part 
of the a(5jreement is that the decision shall be made by a particular 
person, the right of decision is confined to that person. 

Paulus (on Sabinus 12) An arbitrator can decide as to 
matters, accounts, and disputes which were pending between the 
parties to the arbitration at the time, not such as occurred after 
the reference. 

JULIANUS (Digest 4) If an agreement to refer is made in 
such terms that the arbitrator is to pronounce his award in the 
presence of both parties or of their respective heirs, and one of the 
litigating parties dies leaving for heir a boy under age, no award 
given is held to be valid, unless the guardian has given his con- 
currence. 1. Similarly, if one of the parties to the agreement 
becomes insane, 

MoDESTiNUS (Rules 4) the arbitrator will not be compelled 
to give an award : 

JULIANUS (Digest 4) indeed, he may be ordered not to give 
one, as it is held that there is no such tiling as an act done in the 
" presence " of a lunatic. If however tlie lunatic has a curator or 
comes to have one while the case is still pending, the award can be 
pronounced in the presence of the curator. 1. An arbitrator can 
summon the parties to attend either by a messenger or by letter. 
2. If mention is made of the heir in connexion with one of the 
parties only, the arbitration will be annulled by the death of either 
of the parties, just as it would be if there had been no reference 
to the heir of either. 

Alfenus (Digest 7) An arbitrator who was had in pursuance 
of a submission, not being able to give his award by the day which 
was laid down in the reference, ordered the time to be enlarged ; 
but one of the contending parties refused to observe the order ; 
whereupon an opinion was sought on the question whether he 
could be sued for the penal sum in pursuance of the submission. 
I answered that he could not, because the arbitrator had not been 
authorized to make such an order. 

Marianus (Rules 2) If a man is appointed arbitrator in his 
own afiliir, he cannot pronounce an award, as iie would be ordering 
himself to do something or forbidding himself to bring some action, 
and nobody can issue a command or a prohibition to himself 

The same (Rules 4) If a man who is ordered by an arbi- 
trator in pursuance of a submission to pay a sum of money should 



294 On arbitrations [book iv 

make default in doing so, he is bound to pay the penalty in 
accordance with the agreement, but, if he afterwards pays the 
money, he is discharged from the penalty. 



IX. 

Seamen, innkeepers, stablekeepers, to restore what they 

RECEIVE. 

Ulpianus {on the Edict 14) The praetor says:— "Where 
seamen, innkeepers, or stablekeepers have received the property 
of anyone on the terms of safe custody, then, unless they restore 
it, I will allow an action against them." 1. This Edict is highly 
beneficial, as it is very often necessary to rely on the engagements 
of the persons mentioned and to commit things to their custody. 
And no one need think that the above Edict bears hardly on 
them, as it is open to them, if they like, to refuse to receive 
anyone, and, unless this rule were laid down, they would have 
it in their power to conspire with thieves against the persons 
they took in ; in fact, even as it is, they are not always innocent of 
dishonest machinations of this kind. 2. Let us consider then, 
first of all, who the persons are that are held liable. The prsetor 
uses the word " seamen " {nauUe). By seaman we must understand 
a person who has the management of the ship, though, as a matter 
of fact, anybody is called a seaman who is on board the ship to 
aid in the navigation ; however, the prsetor is only thinking of the 
exercitor (owner or charterer). It is clear, Pomponius says, that 
the exercitor ought not to be bound by the act of some oarsman 
or man before the mast, but only by his own act or that of the 
master ; though, no doubt, if he himself told anyone to commit 
something to the care of one of the sailors, he must himself be 
liable. 3. There are particular officers on board vessels who 
exercise authority in the ship with a view to the proper custody 
of goods, such as tlie nauphylax (ship's guard) and the dicetarius 
(steward) ; so if one of these receives anything, I sliould say there 
ought to be an action allowed against the exercitor, because a man 
who gives the above officers the conduct of any such department 
as described authorizes things being committed to their charge, 
though it is the owner inavicidarms) or the master who does what 
is called the cheirembolon (taking charge). Even if he does not do 



TIT. ix] Seamen, innkeepers etc. 295 

this, still the owner will be liable for what is received. 4. As for 
those who ply rafts, or wherrymen, there is no provision in the 
Edict about them, but, according to Labeo, there ought to be 
the same rule, and such is the present practice. 5. Under the 
description of innkeepers and stablekeepers are to be understood 
not only those who carry on those respective businesses, but their 
agents as well. But those who discharge the duties of a common 
drudge are not included ; for instance, doorkeepers, kitchenboys 
and the like. 6. The praetor says, " where they have received any 
one's property on the terms of safe custody"; this means where 
they receive any object or ware. Hence it is stated in Vivianus 
that the Edict deals equally with things which are over and above 
the actual cargo, such as clothes which passengers wear on board 
ship, and such things in general as people require for everyday use. 
7. Pomponius says (b. 34) that it is a matter of small account 
whether the goods which people bring in are their own or tliose 
of other persons, so long as those who bring them have an interest 
in their being preserved, as the articles in question will have to be 
given up to such people rather than to their owners. Accordingly 
if goods were held by me as security for money lent on a sea-risk 
(pecunia nautica), the "seaman" will be responsible to me and 
not to the debtor, if he received the goods from ine'. 8. Does the 
party receive goods on terms of safe custody only where, besides 
being put on board, they are expressly entrusted to him ; or, if 
they are not so entrusted, is he still held to receive on the above 
terms by the bare fact that they are jiut on board ? I hold that he 
undertakes the custody in all cases where anything is put on board, 
and that he is bound to answer for the acts not only of seamen but 
even of passengers ; 

Gaius {on the provincial Edict 5) just as an innkeeper is 
bound to answer for the acts of travellers ; 

Ulpianus {on the Edict 14) and with regard to the acts of 
passengers, the same thing is set down by Pomponius too (b. 34). 
According to this writer, even if the goods have not yet been taken 
on board, but have been lost on land, still, if they are goods which 
the exercitor has once engaged to carry, the loss falls on him. 
1. The prsetor says, " Unless they restore it, I will allow an action 
against them." The action founded on this Edict is in factum. 
However we may fairly ask whether this action is necessary, as the 
case is one which would afford ground for a civil action ; namely, 

^ For ante read a me. Hal. cf. M. 



296 Seamen, hwkeepers etc. [book rv 

if there was a pecuniary consideration given, the action ex locato 
or ex conducto ; that is to say, if the whole ship was hired out, the 
party who chartered her can bring an action ex conducto even for 
the goods that are missing, but, if the " seaman " engaged to carry 
the goods, he can be sued ex locato ; lastly, if the goods were taken 
on board for nothing, then, says Pomponius, there is a good action 
on depositum. This writer, therefore, is surprised at there being 
an honorary action introduced, as there are civil actions available ; 
unless indeed, he says, the object was to let it become known that 
the praetor took express care to check the dishonesty of persons 
such as those mentioned ; and also because in cases of locatio and 
conductio a man answers for negligence, in depositiim for dolus 
only, but under this Edict the party who took in the goods is 
bound absolutely, even where the goods are lost or mischief happens 
through no fault of his, unless what ensues is a case of unavoidable 
mischief. Accordingly Labeo says that if anything is lost through 
shipwreck or through an attack by pirates, the exercitor may 
reasonably be allowed an exceptio. The same must be said where 
a case of vis major happens in a stable or an inn. 2. Innkeepers 
and stablekeepers are liable, so far as it is in the exercise of their 
calling that they take the goods in ; but if they do so in some way 
which is not connected with their business they are not liable. 
3. If a filiusfamilias or a slave takes in the goods, and the consent 
of the father or^ owner is given, the latter may be sued on the 
whole liability. Again, if a slave of the exercitor stole the property 
or did damage, there will be no noxal action, because, the goods 
having been taken in, the owner [of the slave] can thereupon be 
sued in a direct action. If however the above-mentioned persons 
act without the consent [of the father or owner], there will be an 
action de peculio. 4. This action, Pomponius says, is to indemnify 
the plaintiff {rei persecutio7iem continet), and consequently it will 
be allowed against the heir and without limitation of time. 5. We 
may lastly ask whether proceedings by way of an honorary action 
for goods received and by way of action for theft can be taken in 
respect of the same thing. As to this, Pomponius is in doubt ; but 
I should say on the whole that the party ought to be confined to 
one or other of the two, either on motion or by an exceptio doli. 

4 Paulus {o7i the Edict 13J On the other hand the seaman 
himself at whose risk the goods are has a good action for theft, 
unless either he stole them himself, and after that they were stolen 

^ After patris ins. aut. M. 



TIT. ix] Seamen, innkeepers etc. 297 

from him, or someone else stole them, but the seaman is not in a 
solvent condition. 1. If a seaman receives [the goods] of a seaman, 
a stablekeeper those of a stablekeeper, or an innkeeper those of an 
innkeeper, he will still be liable. 2. Vivianus declared that the Edict 
applies as much to such things as are brought in after the cargo is 
placed on board and the contract to carry it is made, though no 
freight should be payable for them, such as articles of clothing, or 
food to be consumed on board, as these things are comprised as 
accessories in the general contract. 

Gaius (on the provincial Edict 5) Seamen, innkeepers, and 
stablekeepers receive pay not for taking care of the goods, but, in 
the case of the seaman, for conveying passengers to their destination, 
in that of the innkeeper, for letting travellers stay in the inn, and 
in that of the stablekeeper, for allowing horses to be put in his 
stables ; still they are responsible for custody. Fullers and cobblers 
do not receive pay for custody, but for their handiwork, nevertheless 
they are liable to an action ex locato for the custody. 1. What 
has been said about theft must be understood to apply equally 
to damage ; as there can be no doubt that a man who receives 
property on terms of safe custody must be held to engage to protect 
it not only from theft but from damage. 

Paulus {on the Edict 22) Though you should be carried 
in a ship or make use of an inn without charge, still an action 
in factum on your part will not be disallowed if your property is 
unlawfully damaged. 1. If you make use of my slave in your ship 
or inn, and he damages my property or commits a theft thereof, 
then, although it is true that [generally] actions for theft and 
damnum injuria [on my slave's part] would have to be brought 
against me, still, in this case, the action, being in factum, is avail- 
able against you, even in respect of my own slave's behaviour. 
The rule is the same if he belongs to both of us in common ; but 
whatever you pay me on account of the slave's act, whether your 
liability was established in an action communi dividundo, or pro 
socio, or in an action founded on the fact that you hired a share in 
the slave, or hired the whole man, you will have a good demand on 
me on the contract of hiring too. 2. But if I am damnified by 
some injury done to the slave himself by a third person who is on 
board the same vessel or in the same inn, and whose acts the 
prsetor is in the practice of taking into account, Pomponius is of 
opinion that this action will not be available on the slave's 
account. 3. An innkeeper is liable to the action in factum 



298 Seamen, innkeepers etc. [book iv 

on the ground of the behaviour of persons who are in the inn 
as lodgers, but this does not apply to one who is admitted by 
way of casual entertainment, such as a traveller. 4. A man may 
very well have recourse to an action for theft or unlawful mischief 
against seamen themselves, if, that is, he can prove the ill-behaviour 
of any particular person ; but he is bound to confine himself to 
one action ; and if he proceeds against the exercitor, he ought to 
assign to him his right of action [against the actual delinquent], 
tliough indeed the exercitor would have a right to sue such 
delinquent in an action ex conducto. If however the exercitor is 
dismissed from the action, and then the party proceeds against the 
seaman, the latter will be allowed an exceptio, so as to avoid 
repeated trials being had on the ground of the behaviour of the 
same man: and, conversely, if proceedings are taken and carried 
through founded on the behaviour of one particular man, and then 
the action vrt/actum is brought [against the exercitor], an exceptio 
is allowed. 

Ulpianus (on the Edict 18) The exercitor is bound to 
answer for the behaviour of all his seamen, whether they are slaves 
or free ; and it is quite reasonable that he should be answerable 
for their behaviour, as he himself employed them at his own risk. 
But he is only answerable where the damage is committed on 
board the ship ; if it happens oiF the ship, even by the act of the 
seamen, he is not responsible. Moreover if he gives notice before- 
hand that all the passengers are to look after their own goods, 
and that he will not be answerable for damage or loss, and the 
passengers agree to the terms of this notice, then he cannot be 
sued. 1. The action in factum referred to is for double damages. 
2. If the seamen should do any damage to one another's property, 
this does not concern the exercitor. But where a man is both 
seaman and merchant he will have a good claim ; and where the 
loss falls on one of those called nautepihatm (persons who work out 
their passage), the exercitor is liable to him too ; but he is also 
bound to answer for the acts of such persons, since they are seamen 
as well [as passengers]. 3. If the mischief is done by the slave of 
a seaman, though such slave is not a seaman himself, it will be 
perfectly just to allow an utilis actio against the exercitor. 4. In 
this action the exercitor is liable directly, that is, in respect of his 
own fault for employing such men ; consequently even if the men 
themselves should die, this will not release him. Where however 
the action is founded on acts of the exercitor s own slaves, it can 



TIT. ix] Seamen, innkeepers etc. 299 

only be a noxal action, to bind the exercitor ; no doubt, where he 
employs slaves belonging to someone else, he is bound to make full 
inquiry as to how far they can be trusted, and are men of good 
character ; but in respect of his own slaves he may fairly be 
excused, whatever kind of slaves it is that he got to equip his 
vessel. 5. If there are several exercitors to the same ship, each 
may be sued in respect of his own share in the business of exercitor. 
6. The actions under discussion are prsetorian, nevertheless the 
right to sue is subject to no limitation in respect of time ; on the 
other hand they are not allowed against the heir. We may add 
that if a slave was exercitor, and he is dead, no action de peculio 
will be allowed against his owner, even within the year ; but where 
a slave or a son has the control of a ship or an inn or a stable, 
with the consent of the owner or father, there, I should say, the 
latter himself will have to defend the action for the whole damage, 
on the implied assumption that he undertook the full responsibility 
for all contingencies. 



FIFTH BOOK. 



I. 



On trials at law : as to where a man ought to take 
proceedings or be sued. 

Ulpianus (o7i the Edict 2) If persons submit their case to 
some particular tribunal, upon agreement so to do, thereupon, as 
between the parties so agreeing, jurisdiction belongs to any judge 
who presides in the court, or has other authority therein. 

The same {on the Edict 3) Parties are held to agree who 
know that they are not subject to the jurisdiction of the judge in 
question, but do in fact agree to resort to his court ; but if they 
merely suppose that the jurisdiction belongs to that judge, it will 
not on that account belong to him ; where the litigating parties 
make a mistake, as Julianus himself says (Dig. 1), there is no 
agreement. Or, if they took for praetor one who was not praetor, 
then again the agreement so made in error confers no jurisdiction. 
Again, if one of the parties refuses to concur, but is compelled 
thereto by the praetor by the force at his command, no jurisdiction is 
conferred. 1. In respect of agreements, is an arrangement between 
private persons enough, or is the consent of the prsotor himself 
required as well ? The words of the lex Julia on trials-at-law are 
" so as to prevent private persons agreeing" ; so that an agreement 
between private persons is enough. If then the private persons 
agree, but the praetor is not aware of their agreement, and thinks 
the jurisdiction is his own, we may fairly consider whether the 
conditions required by the statute are not fulfilled ; and I should 
say that it may be very well maintained that the jurisdiction 
belongs to the person agreed upon. 2. If a man is nominated as 
judge, and is to hold tlie office for a given time, and all the litigating 
parties agree to an enlargement of the time within which he is to 



TIT. i] On trials at law 301 

be bound to decide the case, the eulargement may take effect, 
unless this is expressly barred by Imperial order. 3. Legates are 
allowed the right of having the case transferred to the court of 
their domicile, where the question turns upon any contract which 
they made before they became legates, and a similar right is given 
to persons who have been required to attend to give evidence or 
have been sent for or ordered to go to a province to act as judges. 
The fact^ that a man has appealed against a judgment does not 
put him under the necessity of defending proceedings taken by 
other persons during the time occupied by the prosecution of his 
appeal at Rome or in any other place at which it is being carried 
on ; Celsus says that under these circumstances a man may in fact 
ask to have the case transferred to his own domicile^, because 
he only came to Rome on other business. This opinion is held by 
Celsus and it is perfectly sound ; the Divine Pius himself laid down, 
in a rescript addressed to Plotius Celsianus, that a man whom he 
had cited to appear at Rome to give an account of a guardianship 
ought not to be compelled to appear in respect of a different 
guardianship in connexion with which he had not been cited. The 
same Emperor, in a rescript to Claudius Flavianus, laid down that 
a youth under twenty-five who had asked for a restitution in 
integrum against one Asinianus, who had come to Rome on some 
other business, had no right to have his application heard at Rome. 
4. All the above-mentioned persons have the cause transferred to 
their own home on the supposition that they did not enter into the 
contract in the place where they are sued ; but if they did enter 
into the contract there, they have no right to have the cause 
transferred ; except legates, who are not compelled to defend their 
case in Rome as long as they remain there in the character of 
legates, even if it was there that they made the contract, provided 
they made it before the time of their discharging the office of 
legate. This we are told by Julianus, and a rescript of the Divine 
Pius lays down the same rule. No doubt if they continue to reside 
at Rome after the duties attached to the character of legate are 
discharged, then, according to a rescript of the Divine Pius, they 
can be sued there. 5. If they made the contract outside their 
own province, but not in Italy, it is a matter of question whether 
they can be sued in Rome. Marcellus says they can only use the 
privilege of having a matter transferred to their domicile when it 
depends on a contract made by them in their own city, or at any 

1 For quoque qui read quod quis. Cf. M. 

2 For domus perhaps read domum. 



302 On trials at law [book v 

rate within their own province, and this is true. However \ on the 
other hand, if they bring an action themselves, they must defend 
any action brought against them ; but I do not mean to say that 
this is so where they simply sue on some injuria or theft or damage 
which they suffered where they are ; or else, as Julianus nicely 
observes, either they will have to bear insults and loss without 
getting redress, or else it will be in anybody's power, by attacking 
them, to make them subject to [Roman] jurisdiction the moment 
they seek redress. 6. If there is any doubt whether a man is 
or is not in such a position that he can have a matter transferred 
to his home tribunal, it is for the praetor to determine the 
question, on inquiry into the case ; and if it should be clear that 
he can under the circumstances have it so transferred, the party 
will be bound to undertake to appear at the trial, the praetor 
laying down to what day his engagement shall refer. As to 
whether he is simply to enter into an undertaking or find security, 
Marcellus is in doubt ; my own opinion is that he need only give a 
formal promise, and Mela says the same thing ; and, were it other- 
wise, the case would be not so much that he had to find persons to 
be security for him as that he was compelled to meet the action 
where he was. 7- But in all cases in which the time for appearance 
is extended, it ought to be done so as not to allow lapse of time 
to occasion loss to creditors. 8. The right of inflicting a fine is 
allowed to such as exercise judicial functions by governmental 
appointment, and to no others ; save in pursuance of express 
authorization. 

The same {on the Edict 4) A man cannot be held to be 
keeping out of the way to avoid an action, if, even when present, he 
is not compellable to meet the action. 

Gaius {on the provincial Edict 1) A man cannot have any 
action-at-law against a person whom he has in his own potestas, 
save in respect of castrense peculium. 

Ulpianus {on the Edict 5) Where a man is cited out of the 
jurisdiction of some other magistrate to appear in the praetor's 
court, he is bound to attend, so both Pomponius and Vindius 
inform us ; because it is for the praetor to form a judgment as 
to whether he has jurisdiction in the case, and not for the party 
cited to treat the authority of the praetor with contempt : as 
even legates and all those generally who have a right to have 
a case removed to their domicile are in this position that, if 

1 Dele et. M. 



TIT. i] On trials at law 303 

they are cited, they must appear, and then they can assert their 
privilege. 

The same (on the Edict 6) A blind man is competent to 
discharge the office of judge. 

The same {on the Edict 7) If a man, after he has once been 
cited, becomes a soldier, or comes to have a different forum, he will 
not have a right to have the case removed to his forum, as the 
plaintiff, you may say, is beforehand with him. 

Gaius {on the provinckd Edict 2) If a man in the course of 
a legation makes a cojistitutiim of money which he owed before he 
was legate, he cannot be compelled to meet an action in the place 
where l)e made the constitutmn. 

Ulpianus [on the Edict 9) The Italian islands are a part of 
Italy, and [the islands in the vicinity] of any province [are a part 
of that province]. 

The same {on the Edict 10) A man is held to "desist" not 
where lie postpones a trial at law, but where he abandons it 
altogether ; to desist is to give up with a vexatious object pro- 
ceedings which a man had set on foot. There is no doubt that if a 
man, on ascertaining the real facts of the case, relinquishes some 
proceeding because he is unwilling to persevere in an unjust 
contest, not having begun it originally with a vexatious object, 
he is not held to desist. 

The same {on the Edict 12) If I arrogate a man after he 
has joined issue with me in an action which he brought against me 
or I brought against him, then, according to what Marcellus tells 
us {Dig. 3), the action is at an end, because there could have been 
no action between us at the outset [if we had been in our present 
position], 

Paulus {on the Edict 17) Where the prsetor forbids one out 
of a number to act as judge, he may be held to authorize the 
others. 1. Those officers can appoint a judge to whom the power 
of doing so is given by a statute or an Imperial enactment or a 
decree of the senate. By a statute, for instance, this power may 
be given to a proconsul. Moreover one to whom jurisdiction is 
delegated can appoint a judge ; in this position are proconsular 
legates. We may add those to whom the right has been allowed 
by custom, because of their general power of command (imperium), 
for instance the pronfectus ui-hi and the other magistrates at Rome. 



304 On trials at law [book v 

2. Officers who have the power of appointing a judge are not at 
liberty to give any judge they please ; some kinds of persons are 
incapacitated from being judges by statute, some by nature, some 
by custom. By nature deaf and dumb persons are incapable, also 
incurable lunatics and boys under age, as they are devoid of 
judgment. By statute a man is incapacitated who has been re- 
moved from the senate. By custom, women and slaves, not because 
they are wanting in judgment, but because it is an established rule 
that they are not to discharge civil offices. 3. As to those who are 
legally capable of holding the office of judge, it is immaterial 
whether they are uudQV jjotestas or sui juris. 

13 Gaius {on the provincial Edict 7) In the three actions called 
familice erciscundte, communi dividundo, and Jinium regundorum 
it is a question who is to be regarded as plaintiff, seeing that [in 
each of these cases] all parties appear to be in the like position. 
However it is held on the whole that the party to be regarded 
as plaintiff is the one who brought the matter before the court; 

14 Ulpianus {Disputations 2) but where both parties bring 
the matter before the court, the practice is to determine the 
question by lot. 

15 The same {on the Edict 21) If a Jiliusfamilias, being a 
judge, should "make the case his own," he is liable to pay an 
amount equal to the value of what there was in his peculium, at 
the time of his pronouncing judgment. 1. A judge is said to 
"make the case his own'' wlien he maliciously pronounces judg- 
ment in fraud of a statute ; and he is held to pronounce maliciously 
when plain proof is given of favour or spite or, it may be, some 
corrupt motive on his part. The result is that he is compelled 
to hand over the true value of the matter at stake. 

16 The same {on the Edict 5) Julianus holds that where a 
judge has made the case his own, there will be a good right of 
action against his heir ; but this opinion is not correct, and many 
have criticised it. 

17 The same {o7i the Edict 22) Julianus says that if one of the 
parties makes the judge heir either to the whole or a part of his 
estate, some other judge must needs be had, because it is unjust 
that a man should be made the judge of his own case. 

18 The same {on the Edict 23) If a considerable interval of 
time will have to pass before the judge appointed can attend to the 



TIT. i] On trials at laiv 305 

matter, the Prsetor orders another appointment ; this occurs, for 
instance, where he is engrossed by something or other which does 
not allow him to bestow his attention on the trial, — he may have 
an attack of illness or be obliged to go on a journey, or his private 
property may be exposed to dangers. 1. If ?i Jilmsfamilias wishes 
to take proceedings on the ground of some injury as to which his 
father has a good right of action, he is only allowed to bring an 
action where there is no one to bring it on behalf of the father. 
Julianus himself holds that if a filmsfcmiilias is away from home 
on a legation or with a view to study, and some act of theft or 
wrongful damage to property is committed against him, he can 
proceed by way of titilis actio, as, if he waited for his father to 
sue, the wrongs done might go unpunished, because either the 
father never meant to come to the place at all, or else, before he 
arrived, the party who committed the offence took himself off. 
Accordingly, the rule which I have always approved of is that 
where the matter does not depend on delict but on contract, then, 
if the father happens to be somewhere in the provinces and the 
son himself is staying at Rome, either for the sake of study or for 
some other good reason, the son ought to proceed by way of utilis 
actio ; let us suppose that he seeks to recover a deposit or sues on 
mandatum or for money which he lent ; — and the reason for this 
is that, if he is not allowed the action, the result may be that he 
will be victimized with impunity and be living at Rome in a state 
of destitution because he does not get the allowance which his 
father intended him to have for his expenses. Suppose the Jiliiis- 
familias is a senator and his father is in the provinces ; would not 
the fact of his rank enhance the equity of the case ? 

19 The same {on the Edict 60) An action against an heir who 
is away from home ought to be defended at the place at which the 
deceased was liable, and the heir can be sued there if he can be 
found on the spot, and is not protected by any special ground of 
exemption persona,! to himself 1. If a man has been carrying on 
a guardianship or a curatorship or has been engaged in business, 
or banking, or anything which has made him incur some 
obligation, in any particular place, he must be ready to defend 
actions in the same place, though he had no home there, and if he 
will not defend actions, and has no home there, he must submit to 
possession being taken of his property. 2. Similarly, if he sold 
goods in any particular place, or dealt with them in any way, or 
bought goods, it is held that he must^ sustain actions at the same 
1 After defendere ins. debere. Cf. M. 
M. J. 20 



306 On trials at laio [book v 

place, unless it was agreed that he should do so somewhere else. 
Is the rule^ then this, that a man who has bought from a merchant 
who is a stranger, or sold to some one whom he knew to be on the 
point of leaving the place, has no right to an order for possession^ 
of the other party's goods on the spot [if the occasion arises], but 
must go to the party's place of abode, while if a man [buys] from 
one who has a shop or a place of business which he hired in some 
particular locality, then the [latter's] position is such that he ought 
to be sued there ^? This is on the whole the most reasonable rule; 
in fact, where a dealer comes to a place with the intention of 
speedily leaving it, you can only buy^ from such a person as if he 
were a mere traveller, some one, that is, who is on his way by land 
or sea to some other destination, and*' it would be a yqvj oppressive 
rule that whatever place a man came to in the course of a voyage 
or a land-journey he should [be compellable to] defend an action 
at every spot. But if he stops anywhere, — I do not say as though 
the place were his legal home, but because he has hired some 
small shop or stall or warehouse or box or office at the place, and 
sells goods there or carries on business, — then he will be bound to 
defend actions at the respective places. 3. Labeo mentions the 
following i)oint : — Where a provincial trader has a slave stationed 
at Rome as a factor to sell goods, any contract made with the slave 
is to be treated as if it were made with his owner ; accordingly 
the trader must defend actions at Rome. 4. One point which we 
must bear in mind is this : where a man's obligation is such that 
he is bound to pay in Italy, then, if he has his domicile in a pro- 
vince, he can be sued both here and there alike ; this is held by 
Julianus and by many others. 

Paulus {on the Edict 58) The correct view is that every 
kind of obligation is to be treated like [one founded on] contract, 
so that, wherever a man incurs an obligation, it is to be held that 
a contract was made there, though it should not be a case of a 
debt founded on a loan. 

Ulpianus {on the Edict 70) If I desire to exhibit my 
demand to my debtor [edere actionem'] a good rule is that if he 
admits that he owes the money and declares that he is prepared to 

^ Perhaps read igitur for dicimus. Cf. M. 

2 Read 2^ossidere for possideri. Cf. M. 

3 Sense clear, exact words lost. I have put the mark of interrogation after 
conveniatur instead of after sequi ejus. 

* For emptis read emis. Cf. M. 
6 For emit read et. Cf. M. 



TIT. i] On trials at law 307 

pay it, the statement must be accepted, and he must be ordered to 
pay the money by a given day, giving the proper undertaking in 
the meantime : there is no great mischief in delay being made for 
a short while. The expression "a short while" must be understood 
to apply to so much time as has been allowed defendants for pay- 
ment after an order is made upon them. 

Paulus {on Plautius 3) Where a man is not compellable 

to sustain an action at some particular place, then, if he brings an 
action there himself, he can be compelled to defend actions too, 
and to appear before the same judge. 

The same (oii Plautius 7) A matter which arises after 

joinder of issue cannot be held to be before the Court ; so that a 
fresh application will have to be made. 

The same {on Plautius 17) No right of action exists at 

Rome against persons who are summoned to the city by the 
Emperor, except where they enter into a contract during their 
stay. 1. Legates are compellable to submit to actions in Rome in 
respect of delicts committed during the time of their legation, 
whether such delicts are committed by themselves or by their 
slaves. 2. But if an action in rem is applied for against a legate, 
ought it to be allowed, this action being founded on the fact of 
present possession ? Cassius laid down that the proper rule is that 
if the action might result in the legate being deprived of his whole 
suite of attendant slaves, it ought not to be allowed, but if it 
relates to one slave out of a large number, it is not to be refused. 
Julianus says, without distinction, that no action can be allowed ; 
which is quite right, as the object of disallowing the action is to 
prevent the legate from being called away from the duties of the 
post which he has undertaken. 

Julianus {Digest 1) If a man while serving on a legation 

should purchase — or in any way whatever come to possess — a 
slave or any other piece of property, he is compellable, and that 
very justly, to submit to an action in respect of such property [on 
the spot] ; otherwise it will be put in the power of a legate, in 
virtue of liis office, to carry off other people's goods to his own 
place of abode. 

Paulus {on Plautius 17) In the case of a legate entering 

on an inheritance, we are told by Cassius that even where he enters 
on it at Rome, there is no right of action against him ; because it 
might embarrass him in the discharge of the duties of his legation ; 

20—2 



308 On trials at law [book v 

and this is quite sound. He cannot even be sued by a legatee ; at 
the same time, a legatee can get an order for possession of the 
property, unless the legate gives security ; and the same rule 
applies to creditors on the estate. 

27 JuLiANUS (Digest 1) What indeed is there to prevent the 
legate continuing to discharge his official duties and there being 
some agent in the meantime in possession of the estate in order to 
take care of it ? 

28 Vavuj^ [on Plautius VJ) Again, if an inheritance is handed 
over to him under the Trebellian statute, no action against him 
will be allowed, whether the heir entered on the inheritance of his 
own free will or under compulsion ; the most convenient course 
will be, no doubt, that the inheritance should be handed over to 
the legate ; still matters ought to be put on the same footing as if 
he had entered on the inheritance himself. 1. Where, to take the 
converse case, the legate himself, during his legation, enters on an 
inheritance and hands it over, an action Avill be allowed against the 
fideicommissary ; and no exceptio under the Trebellian statute is 
admissible founded on the position of the legate, as what has just 
been mentioned is a direct relief to the legate himself. 2. But in 
those cases in which a legate is not compellable to sustain an 
action, he is equally little compellable to swear that he is not 
liable to pay, as the oatli takes the place of joinder of issue. 
3. A legate is bound to give the regular engagement as to damnum 
infectum in respect of a house, or else submit to the neighbour 
taking possession. 4. If the time for bringing an action against 
the legate is on the point of expiring, the Pr?etor is bound, on due 
cause shown, to allow the action to be brought, so that issue may 
be joined, and the case may be removed into the provincial Court. 
5. If a 2)(f^t,€rfamilkis dies leaving one son, and his Avidow is preg- 
nant, the son cannot legally demand from the debtors half the 
money lent [by the deceased, nor will such a demand be legalized] 
though eventually one son should be born, because where in the 
nature of things we might count upon one child being born, the 
number might be greater \ However, Sabinus and Cassius hold 
that what he ought to have asked for is a quarter, because it was 
not certain that there would not be three born, and we need not 
consider the nature of things, according to which nothing is unde- 
termined, seeing that whatever is going to take place does come to 
pass in any case ; what has to be considered is our own ignorance. 

^ Wording apparently hopeless : of. M. 



Trr. i] On trials at law 309 

The same {on Plautius 8) The party who first applies is 
Plaintiff. 

]Marcellus {Digest 1) Wherever the trial is once accepted^ 
there too it ought to be carried through to its terraiuation. 

Celsus {Digest 27) If a plaintiff dies leaving several heirs, 

and one of them carries on the proceedings, it will not be true to 
say that the whole matter involved in the trial up to that point is 
before the Court ; as no one can bring before the Court a suit 
instituted by another, unless he has the consent of his coheirs. 

Ulpiajstus {on the office of Consul 1) Where a judge has a 

certain period of time laid down^ within which he is to give judg- 
ment, but he dies, and another judge is appointed in his place, we 
must understand that the same period is laid down afresh with 
reference to the new judge ; although the magistrate in appointing 
him should not state this expressly ; provided always that this 
does not go beyond the statutable period. 

Modestinus {Rules 3) A man is not held to have agreed to 
a particular judge because he calls upon the plaintiff to state the 
nature of his action in that judge's court. 

Javolenus {extracts from Cassius 15) If a man dies after 

joining issue as defendant at Rome, his heir, even though his 
domicile should be beyond the sea, must still defend the case at 
Rome, because he steps into the place of the person by whom he 
was appointed heir. 

The same {Epistles 10) It is not the case that whereas the 
obligation of a surety can be left contingent or even expressly con- 
tracted in such terras as to refer to a future day, so too an action 
can be left contingent, or relate to something as to which an 
obligation may arise subsequently. I suppose nobody will deny 
that a surety can be given before the principal debt is contracted, 
but that there can be no issue joined before there is a debt in 
existence. 

Callistratus {Inquiries 1) In some cases, where there is 

sufficient cause, and particular kinds of parties are concerned, the 
hearing may be ordered to be postponed ; for example, where 
documents bearing on a case are alleged to be in the hands of 
persons who will have to be absent in the service of the State. 
This was laid down by the Divine brothers in the following terms : 
"Humanity requires that a postponement should be allowed on 

^ For prcestita read prcestituta. Cf. M. 



• 310 On trials at law [book v 

the ground of accidental misfortunes, for example, where a father 
who is party to an action has lost his son or daughtei', or a wife 
her husband, or a son his parent, and that in other cases of the 
same kind the inquiry should be postponed, within certain limits \'' 
1. Where a senator volunteers to manage some other person's 
affairs in a province, he has no right to decline to sustain an action 
on Qiegotia gesta ; Julianus expressed the opinion that he is obliged 
to defend the action, because he contracted the obligation of his 
own accord. 

37 The same {Inquiries 5) If an inquiry is made as to alleged 
violence and as to the fact of possession ; the question of violence 
should be taken before the question of ownership, according to a 
rescript of the Divine Hadrian addressed to the Thessalian com- 
munity in the Greek language. 

38 LiciNNius RuFiNUS {Rides 4) A thing given by way of 
legacy, if it is sued for by an action m personam, ought to be 
handed over where it is, unless it was removed with malice on the 
part of the heir; and in that case it ought to be handed over where 
it is sued for. It must be added that a legacy defined by weight 
tale or measure ought to be handed over where it is sued for, 
unless the bequest contained some such additional words as "a 
hundred bushels out of such a warehouse " or " so many anijjJiorce 
of wine out of such a vat." But if tlie legacy is sued for by an 
action in rem, the action, we may add, must be brought where the 
thing is ; and if the thing is moveable, an action ad exhibendum 
may be brought against the heir to make him produce it ; because 
then the legatee can bring a vmdicatlo to recover it. 

39 Papinianus {Questions 3) If the man appointed judge is a 
lunatic, there is nothing that need prevent there being a valid trial 
in the fact that he is unable to act as judge at the time ; so that 
whatever he lays down in a judgment given after he recovers the 
use of his wits may be upheld : for a judge to be appointed, his 
own presence or knowledge is not required. 1. When a man 
comes to Rome on a legation, he can always be surety in any 
matter, since he cannot make use of his privilege, where his con- 
tract was entered into in Italy. 

40 The same {Questions 4) It is not everything which a judge 
is empowered to do that is made a matter of legal compulsion. 
1. If a judge in giving judgment should maliciously omit some 
part of his duty, contrary to a statutable rule, he offends against 
the statute. 

^ M. thinks the text of the rescript is omitted. 



TIT. i] On trials at law 311 

41 The same {Questions 11) In all bona , fide actions, so long 
as the day for paving over money has not arrived, if anyone applies 
to have an undertaking given for payment, the order will be made 
on sufficient cause shown. 

42 The same {Questions 24) If the wife of a legate is divorced 
from her husband at Rome, the opinion has been given that [if she 
sues for dos] the husband must be ready to defend the action in 
Rome. 

43 The same {Questions 27) Where a man stipulates that a 
block of chambers shall be built for him at Capua within a specified 
time, it is recognised law that, when the time expires, he can bring 
an action for damages to the extent of his interest wherever he 
likes. 

44 The same {Responsa 2) The discharge of the duty of judge 
is not obstructed by the fact that, after an action has been com- 
menced against all the guardians, some of the number have become 
absent in the service of the State, since the management carried on 
by those who are present can be distinguished from that of those 
who are not defending the case, and a separate estimate can be 
made. 1. If a person on whose account an action has been 
brought through a procurator afterwards turns out to be a slave, 
the defendant ought to be dismissed from the action, but this will 
be no bar to the principal, if on some future day he should choose 
to bring the action in his own name. 

45 The same {Respo7isa 3) A banker ought to be sued where 
the contract with him was made, and no adjournment of the case 
should be allowed save on sufficient grounds, [for example,] to 
allow of his books being brought from a province. A similar rule 
holds with reference to an action on guardianship. 1. Where the 
guardians of a girl have judgment given against them in the 
province in an action which they defended on behalf of their ward, 
the curators of the girl are compellable to obey the decree in 
Rome, the fact being that the girl's mother borrowed the money 
in Rome, and the girl was her mother's heir. 

46 Paulus {Questions 2) A man who is appointed judge con- 
tinues to hold the office though he should come to be insane, 
because he was properly appointed judge at the outset ; but in 
case of a serious illness he is excused the necessity of sitting ; 
accordingly someone else must be put in his place. 

47 Callistratus {Questions 1) Care must be taken not to 



312 On trials at law [book v 

appoint as judge anyone whom one side asks for expressly by 
name ; (such an appointment, according to a rescript of Hadrian, 
would be a thing of bad example ;) unless special permission for 
this being done should be given by the Emperor out of respect for 
the person asked for as judge. 

48 Paulus {Responsa 2) The following is an extract from a 
letter of the Divine Hadrian : Magistrates are not in the year of 
their office to commence any proceedings on their own behalf 
either as plaintiffs or defendants, nor are they to be judges in a 
matter which they are concerned in as guardians or curators. But 
as soon as the term of their office expires, then actions may be 
brought both by them^ and against them. 

49 The same {Responsa 3) A vendor, being called upon by 
the purchaser to defend him in an action brought by a person who 
claimed to recover the property as owner, declares that he has a 
special right to have his own judge ; the question is whether he 
has a right to remove the case from the court of the judge before 
whom the matter has been begun between the plaintiff and the 
purchaser to that of his own judge. Paulus answered that the 
practice is for the vendor to take the purchaser's judge. 1. Judges 
appointed by the Prseses commonly continue to hold their office 
even in the time of his successors, when they are still bound to 
deliver judgment, and their judgments are upheld. Scaevola too 
gave his opinion to the same effect. 

50 Ulpianus {Fideicommissa 6) If an action is brought for a 
Jideicommissimi, and the defendant [the heir,] declares that the 
main part of the estate is somewhere else, he cannot be compelled 
to execute the trust [in pursuance of the action] ; it is in fact 
provided by a great number of imperial enactments that a ^fidei- 
commissum must be sued for in the place where the bulk of the 
estate is ; unless it be shown that the testator desired the trust to 
be executed in the place where the action to enforce it is brought. 
1. The following point has been considered in connexion with a 
question of debt : Suppose in the province in Avhich the action on 
a Jideicommissum is brought, there were an excess of debt ; 
would a p7'cescriptio be admissible on the ground that the bulk 
of the estate was somewhere else? However, the rule is that 
even in such a case the plea of debt makes no diflference, debt 
not being a thing which depends on locality, but one affecting 

^ del. TTpos TOiJS (fxvyovras and rols (fxvyovcri. Cf. M. 



TIT. i] Or trials at law 313 

the whole of the estate ; a debt, it is well known, is a deduction 
from the whole of the property, not from the resources existing at 
a particular place. Suppose, hoAvever, this particular portion of 
the property were specially charged with some burden, such as, 
for example, that of an alimentary provision which the testator 
directed to be paid in Rome, or with taxes, or any other burdens 
the payment of which it was impossible to get remitted, Avould the 
plea be admissible? In such a case the better opinion, I should 
say, is that it would. 2. However, there is in fact a rescript to the 
effect that a JideicoQiimlssum should be sued for at the place where 
the heir has his home. But whenever an heir once begins to 
pay in discharge of a Jideicommissum, he cannot afterwards have 
recourse to the above plea, 

Maecianus {Institutes 8) even though the inheritance 

should have come to a man whose home is in a province. We may 
add that the Emperors Severus and Antoninus laid down by rescript 
that ,if the party ^ agrees to pay in discharge of the trust in some 
other place, he is bound to pay accordingly in the place so agreed 
upon. 

Ulpianus {Fideicommissa 6) Moreover if the heir appears to 
the action on the fideicommissuin and has recourse to other grounds 
of defence, but avoids this one, he cannot afterwards fall back upon 
this ground, even before judgment is given. 1. If a testator orders 
that corn tickets (tesserce frumenfaricB) should be bought for his 
freedmen, then, although the bulk of the estate should be in a 
province, nevertheless the correct view is that the fideicommissimi 
must be discharged in Rome, as it is clear that that was the 
testator's intention, considering the nature of the purchase directed. 
2. Again, if the case should be that there are left so many pounds 
of silver or gold to such and such honourable persons, and there 
are sufficient assets in Rome to discharge this fldeicoinmissum ; 
then, although the main bulk of the whole assets should be in a 
province, we shall have to say that the trust must be executed in 
Rome ; as it is very unlikely that a testator who desired honour 
to be done to persons to whom he left such small Jideicoiumissa 
should have wished them to be discharged in the province. 3. If 
the thing left by way of Jideicommissiwi is on the spot, the correct 
view is that the action cannot be met by a j^rcescriptio founded 
on the fact that the bulk of the estate is elsewhere. 4. But if 
the object of the action is to have given on the spot not the actual 

1 Read Jidei commissum for Jidei commissarius. Cf. M. 



314 On trials at law [book y 

thing left hy Jideicommissum, but security for the discharge of the 
trust, it is a fair question whether this plea is not available ; but I 
should say it is not ; nay more, even if there is nothing at all on 
the spot, still the defendant should be ordered to give the security. 
What is there for him to be afraid of? if he does not give the 
security, the plaintiff will be put in possession in order to secure 
ihQ Jideicommissuiin. 

53 Hermogenianus {epitomes of law 1) There are just a few 
special cases in which slaves are allowed to appear against their 
owners ; one case is where a slave alleges that a testament is kept 
back in which, as he declares, he M^as given his liberty. Slaves are 
also allowed to inform against owners accused of short deliveries 
of the annona of the Roman people, also of insufficient returns of 
property, also of coining. Besides this they may proceed against 
their owners to procure freedom left them hy Jideicommissuni ; as 
well as in cases in which they allege that they are bought by their 
own money, and that, contrary to the faith of the agreement, they 
have not been manumitted. Moreover, where it is provided [by 
testament] that a slave shall be free on rendering his accounts, he 
has a right to ask for an arbitrator between himself and his owner 
to examine his accounts. Again, if a slave chooses to rely on the 
good faith of a person who promised that he should be bought 
with that person's money, and be manumitted on repayment of the 
sum by himself, after which the person in question declines to take 
the money when tendered, the slave has a right given by law to 
inform as to the terms of the credit on the strength of which the 
contract was made. 

54 Paulus {Sentences 1) An inquiry of greater importance 
should not be prejudged by a case of less importance ; the more 
important question attracts the less important case. 

55 The same {on the office of assessor") A citation made by a 
preceding judge ought to count as one of the three citations. It 
is true that if the whole number of citations should have been 
completed by the preceding judge, the practice still is for the 
successor to issue one more. 

56 Ulpianus {on Sabinus 30) Although it is perfectly true 
that [only] a real jy'^'ocurator can bring a matter before the Court, 
still, where a man, without being 2i ))ii'Ocnrator, proceeds to joinder 
of issue, and, after that, the principal ratifies his act, it is held, by 
relation back, that the matter has been properly brought before 
the Court. 



TIT. i] On trials at law 316 

7 The same {on Sahinus 41) There is a good right of action 
against a Jiliusfamilias, both on contracts and delicts ; but if the 
defendant dies aftei- joinder of issue, the action is transferred to 
his father ; only however as an action de peculio and de in rem 
verso. It is clear that if a filiusfamilias undertakes to defend an 
action as procurator for some one, then, on his death, the action is 
transferred to the person whose case he defended, or [if judgment 
has already been pronounced,] an action^ on the judgment may be 
given to the same person. 

8 Paulus {on Sahinus 13) An action is put an end to if the 
pert^on who ordered the judge to hear it forbids him to proceed, or 
indeed any magistrate does so who possesses superior authority to 
the first in the same kind of jurisdiction, or even the judge himself 
comes to be vested with authority equal to that of the magistrate 
who appointed him judge. 

9 Ulpianus {or Sahinus 51) If, in the order given to a man 
to act as judge, no place is mentioned, the magistrate is regarded 
as ordering him to act in the place where the Court is usually held, 
provided the litigating parties are not put to inconvenience. 

Paulus {on Sahinus 14) When a judge dies, whatever it 
was that he had to adjudicate upon, the person who is put in his 
place is bound to address himself to the same point. 

1 Ulpianus {on the Edict 26) It is commonly said that the 
point which is the subject of the trial is whatever it was that the 
litigating parties both intended ; Celsus however declares that there 
is some risk in ascertaining this by reference to the defendant 
personally, because he will always try to avoid an adverse judgment 
by saying that that was not the point agreed upon. On the whole 
then, it comes to this : the best rule to give is not that the subject 
of the trial is whatever the parties intended that it should be, but 
that nothing is the subject of the trial which it was expressly 
intended that it should not be. 1. A judge for cases of robbery is 
not qualified to hear pecuniary cases. 

The same {on the Edict 39) It is impossible for a contest to 
proceed between two parties, unless one of them is demandant and 
the other is in possession ; there must be someone who bears the 
burden of being plaintifi" and another who has the advantage of 
being in possession. 

1 For transactio vel read transit actiove. 



316 On trials at law [book v 

63 The same {on the Edict 49) A proper defence implies this : 
the party accepts a trial, either in his own person or by an agent, 
always giving security ; and a man is not held to make a proper 
defence who does not pay what the judge orders. 

64 The same {Disinitations 1) Damages for dolus are not 
assessed by the judge by reference to the actual interest of the 
plaintiff, but by reference to the value asserted on oath : indeed, it 
is admitted that even a thief has for this reason a good right of 
action on a deposit or on a loan for use. 1. If a man who is 
prepared to bring one kind of action first accepts security that the 
judge's order will be obeyed, and then proceeds upon another kind 
of action, he will not be able to sue on the stipulation, because the 
undertaking appears to be given in reference to a different matter. 

65 The same {pyi the Edict 34) A woman ought to sue for 
her dos where her husband's home was, not where the written 
assurance of dos was made ; the contract of dos is not of such a 
kind that regard should be had^ to the place where the assurance 
was executed so much as to the place which the woman herself 
would have naturally made her home in consequence of the 
marriage. 

66 The same {Disputations 2) Where a man raises an issue in 
ambiguous terms or uses obscure language, his expressions must 
be construed in the way that makes most for his own advantage. 

67 The same {Dispiitations 6) When a slave avers that he 
has been bought with his own money, if he establishes the fact, 
he will be deemed free by relation back to the time when he was 
bought, since the Imperial enactment does not order that he shall 
be pronounced free, but that liberty shall be made good to him. 
Accordingly the owner will be compellable to manumit a slave who 
buys himself with his own money ; moreover if the owner should 
keep out of the way, the proper course is^ to go by the analogy of 
those senatorial decrees which deal with the question of gifts of 
liberty made by way of j^deicoimnissutn. 

68 The same {Disputations 8) A peremptory summons {edic- 
tum) is arrived at in the following course : the defendant failing to 
appear, the plaintiff asks for one summons, next for a second, 

69 The same {on all the Courts 4) after an interval of not less 
than ten days ; 

1 Dele et. M. 

2 Dele debere, or, with M., read de ea re. 



TIT. i] On trials at law 317 

The same {Disputatious 8) then for the third ; and all these 
having issued he may sue out the peremptory summons. It was 
called peremptory, because it put an end to (perwiit) the con- 
tention, that is to say, it did not allow the other party to shirk the 
trial any longer. 

The same {on all the Courts 4) In the peremptory summons 
the judge who issues it gives warning that he will hear the case 
and give judgment even if the other party fails to attend. 

The same {Disputations 8) This summons is sometimes 
allowed when the full number of summonses above mentioned has 
been issued already, sometimes after one only or two, sometimes in 
the first instance, — in which case it is said to be given once for all. 
Which course shall be taken is a question for the consideration of 
the magistrate exercising jurisdiction, whose duty it will be to 
arrange the series of summonses or to abridge the same according 
to the nature of the case or the person or the time. 

The sa]\ie {on all the Courts 4) Even after the peremptory 
summons is sued out, as soon as the day mentioned arrives, the 
defendant who was absent is still called upon, and, whether he 
answers or does not answer, the case will be taken and judgment 
will be pronounced ; though not necessarily in favour of the party 
who is present ; even the one who is absent may sometimes get the 
better if he has a good case. 1. But should the party who sued 
out the peremptory summons be himself absent on the day when 
the cause was to be heard, whereas the party against whom he 
sued it out is present, then the peremptor}^ summons must be 
cancelled, and the cause will not be heard, nor will judgment be 
pronounced in favour of the party who is present. 2. If the 
summons is cancelled, we may consider the question whether the 
rule is that the defendant cannot be sued any further, or whether 
the contention is still open, but simply the particular proceeding 
in which the summons occurred goes for nothing ; and the better 
view is that the particular proceeding alone goes for nothing, but 
the parties can proceed to litigate afresh. 3. It must be under- 
stood that if judgment is given against an absent person on the 
strength of a peremptory summons and he appeals, he will not be 
allowed a hearing, supposing, that is, his absence was contumacious ; 
if it was not, he may be heard. 

74 Julian us {Digest 5) Whatever matter the judge hears he 
is compellable to pronounce judgment upon it too. 1. Where a 
judge has been appointed to decide a matter, provided the amount 



318 On trials at law [book v 

involved does not exceed a certain sum, he may still adjudicate 
in respect of a higher amount, if the parties agree. 2. On one 
occasion, I had undertaken to defend an action brought against an 
absent person, and I joined issue with the plaintiff at a time when 
the person in question was dead, after which I lost the case and 
paid the damages assessed. The question arose whether my pay- 
ment was a discharge to the heir of the deceased, also what sort 
of action I could bring against the heir. The answer was that 
issue joined through a person who defended the case on the debtor's 
behalf is no joinder at all where the debtor is already dead, and 
consequently the heir is not discharged, on the other hand that the 
person in question, if he paid in pursuance of a judgment, cannot 
sue to recover the money ; however, he has a good right of action 
against the heir on negotia gesta, and of course the latter can 
protect himself by the exceptio of dolus malus, if he should be 
sued by the original plaintiff. 

75 The same {Digest 36) If the Praetor orders a man who is sued 
for a debt to appear in Court, and, after the series of summonses is 
gone through, pronounces that the absent defendant must pay the 
money, then, if an action is brought on the judgment, the judge 
who hears the case cannot as a matter of course inquire into the 
grounds of the Praetor's decision ; otherwise such summonses and 
decrees made by the Prsetors will be a mockery. Note by Marcellus : 
if the plaintiff craftily and with knowledge of the facts made some 
false allegation, and it is clearly proved that it was by that means 
that he got a favourable decision from the Prsetor, then my opinion 
is that the judex ought to listen to the defendant's complaint; 
Note hy Paidus : but if the reason why the defendant was not able 
to appear was that he was hindered by illness, or was detained by 
business of the State, I should say that, in such a case, either action 
against him on the judgment ought not to be allowed, or else the 
Prsetor ought not to allow execution on the judgment itself so given. 

76 Alfenus {Digest 6) A case was stated to the effect that a 
number of judges having been appointed for the same matter, some 
of them, after listening to the case, were allowed to retire, and 
others were put in their places ; whereupon the question arose 
whether a change in respect of some particular judges left the 
matter the same or made it a different case. My answer was that 
not only one or two judges might be changed, but even the whole 
bench, and still it would be the same matter, and the case would 
remain the same that it was before ; indeed this, I said, was not 



TIT. i] On trials at law 319 

the only instance in which it happened that, though the parts were 
changed, nevertheless the thing itself was held to be the same ; as 
it occurred in a great many other cases. A regiment was held to 
be the same, though numbers of the men were killed and others 
had been put in their places, and the people at large were looked 
upon as being the same people at this time as they had been a 
hundred years ago, though not one of the old number was now 
living : in the same Avay, where a ship had been so often repaired 
that there was not a single plank still in her that was not new, 
nevertheless she was regarded as the same vessel. If, I said, any- 
body held that where the parts are changed the thing itself becomes 
a different individual thing, it would come to this, on his principle, 
that we ourselves are not the same persons that we were a year 
ago ; the fact being, so philosophers tell us, that the very smallest 
particles of which our bodies are composed^ are every day being 
detached and others from without are coming into their place. 
Accordingly, where the outward form of a thing remained un- 
changed, the thing itself, I said, was held to be the same. 

Africaj^us {Questions 3) In private matters the sou may 
be judge in the father's case, or the father in the son's : 

Paulus {on Plautius 16) as the business of judging is a 
public office. 

Ulpianus {on the office of proconsul 5) Wlien a man is 
proved to have cited his opponent on insufficient grounds, he is 
bound to make good his travelling expenses and the cost of the 
trial. 1. Where judges are in doubt about the law, the practice is 
for the Preeses to lay it down ; if they consult the Prseses on a 
question of fact, he is not bound to furnish them with an opinion, 
he must tell them to pronounce judgment in accordance with their 
own conscientious conviction ; to proceed otherwise sometimes 
gives rise to scandal, and furnishes occasion for partiality and 
canvassing. 

Pompon lus {on Sahinus 2) Where a mistake is made about 
the name or forename of a judge, then, according to the opinion 
given by Servius, if he was appointed judge in pursuance of an 
agreement between the parties, the person to act will be the one 
whom both parties had in their minds. 

M Ulpianus {Opinions 5) A man who does not preside at any 
jurisdictio, and is not clothed with any authority by the Emperor, 

'^ For constiteremus read consisteremus. Gf. M. 



320 071 inofficious testaments [book v 

nor appointed by a magistrate who has the right to appoint judges, 
nor chosen as arbitrator by mutual agreement, nor confirmed in 
his position under some statute, cannot be judge. 

82 The same {oh the office of Consul 1) Sometimes the magis- 
trates of the Roman people are in the habit of expressly appointing 
the officer of the Court by way of arbitrator ; this should be very 
seldom done and only in a case of pressing need. 



II. 

On Inofficious Testaments. 

Ulpianus {on the Edict 14) It must be understood that 
plaints of an inofficious testament are frequently made ; all kinds 
of persons alike being allowed to raise the question of inofficious- 
ness, whether parents or children ; it is true that those particular 
kinsfolk who are more remote than brothers would do well not to 
incur the burden of useless expense, as they would have no chance 
of succeeding. 

Marcianus {Institutes 4) Proceedings are taken on 

^ inofficious testaments on the assumption that the testators were 
not in their right minds when they made their testaments. By 
this it is not meant that the person who made the testament was 
actually a lunatic or deranged, rather the testament was duly 
made, but it was not in accordance with what family affection 
prescribes ; if the testator were really a lunatic or out of his 
mind, the testament would be void. 

iSlARCELLUS {Digest 3) The allegation that a testament is 
inofficious is made by adducing reasons to show that the applicant 
ought not to have been disinherited or passed over, such a case 
often occurs where parents are instigated to disinherit or pass over 
their children by false statements about them. 

Gaius {on the lex Glitia) A parent ought not to be humoured 
who commits a wrong against his children in his testament; the 
reason why he does so often being that he has allowed the cajolery 
and incitements of the stepmother of his children to pervert his 
mind to that extent that he conceives a prejudice against those of 
his own blood. 

^ After colore read de. Cf. M. 



TIT. ii] On inofficious testaments 321 

Marcellus {Digest 3) Even those who do not descend 
from the testator in the male line have a right to take proceed- 
ings, as they can be taken on the testament of a mother, and 
the application is very often successful. The point of the term 
inofficious, as already said, is this, — the parties applying show that 
they were passed over, or, it may be, even got rid of by disinherison, 
without deserving it, and consequently, unduly ; and the colour 
put on the matter, when it is argued in Court, is that the testator 
appears not to have been in his right mind when he framed such 
an unjust testament. 

Ulpianus {on the Edict 14) A posthumous son can allege 
that a testament is inofficious where the testator was a person to 
whom he might have become suus heres or statutable heir, if he 
were himself already conceived before the testator's death ; and 
he can equally do so where the testator was his cognate, because 
in that case too he could get honorum }JOSsessio on intestacy. Does 
it come to this then, that it is made matter of reproach to the 
testator that he did not die intestate? This, we may be sure, 
no one could induce the judge to agree to ; the testator is not 
treated as if he had been deprived of testamenti /actio. What 
the applicant can charge the testator with is this, that he did not 
make him heir ; as, had he been named heir, he might have had 
the benefit of an order for possession in pursuance of the clause 
as to giving the order to the mother of an unborn child ; and being 
once born he would have a right to ask for possession secmidiini 
tabidas. On the same principle I should say that the plaint may 
be brought by a person who, after the testament^ is made, is 
extracted from his mother's womb by excision. 1. If some person 
who is not legally capable of succeeding to the deceased on in- 
testacy takes proceedings for inofficiousness, — a thing which nobody 
prevents him from doing, — and his application happens to be 
successful, his success will be of no use to himself, but only to those 
persons who have a right to inherit on intestacy ; what he does 
is to make the deceased intestate. 2. When a man dies after 
bringing forward a charge of inofficiousness, does he transmit the 
right of plaint to his heir? Papinianus answered, — and the same 
thing is pointed out in more than one rescript, — that if the man 
dies after he has already accepted honorum possessio, the right of 
proceeding with the plaint is transmitted. Even if the bonorum 
possessio has not been asked for, but the contention has been begun 

^ For matris factum read factum matris. Cf. M. 
M. J. 21 



322 On inofficious testaments [book v 

or put in train, or the party dies after taking steps to bring the 
plaint, I should say that the right is transmitted to the heir. 

7 Paulus {o7i Septemviral cases) Let us consider how a 
man can be held to have put a case in train, so as to be able to 
transmit the right of action. Let us suppose that he was under 
the potestas [of the deceased], so that he does not require bonorum 
possessio, and entry on the inheritance would be an act without an 
object ; if such a person simply gives warning that he means to 
make the charge or goes so far as to make a notification {denun- 
tiatio), or to serve the libel, he will transmit to his heir the right 
to proceed with the charge ; this is laid down in a rescript of the 
Divine Pius on serving libels and making notification. How then 
if he was not under the jwtestas of the deceased ? does he still 
transmit the right of action to his heir ? I should say [again] that, 
if he does as much as is above mentioned, he puts the case in train 
sufficiently. 

8 Ulpianus (on the Edict 14) Papinianus says (Questions 5) 
very correctly that a father cannot institute the plaint for in- 
officiousness in the name of his son against the wish of the latter, 
as the wrong is done to the son. Immediately after he says that, if 
a son dies after he has accepted bonorum possessio with a view to 
presenting the question in due form, there is an end of the plaint 
for inofficiousness, as it was not allowed to the father [in his own 
person], but on behalf of his son. 1. If a man abandons the case 
after taking the preliminary steps required in the matter of a 
plaint for inofficiousness, he will not get a hearing afterwards. 
2. It has very often been laid down by rescript that where the 
Emperor is appointed heir, the testament can still be pronounced 
inofficious. 3. Papinianus says (Resjjonsa 2) that there can be a 
good plaint for inofficiousness against the testament of a p)^der- 
familias who is an old soldier, although the only property he had 

should be what he acquired on active service. 4. Wliere a soldier 
makes his testament while in military service, and dies within a 
year's time after his discharge, I doubt whether the plaint for 
inofficiousness is admissible, because his testament is in force all 
the while by military law; there is indeed good ground for 
saying that it is not admissible. 5. Again, where the testament 
is that of a boy under age, his mother cannot allege that it is 
inofficious, because it was his father who made it for him, — this 
opinion was given by Papinianus, — nor can his father's brother, 
because it is the son's testament; consequently the boy's brother 



TIT. ii] On inofficious testarnents 323 

cannot do it either, if he let the father's own testament pass. If 
however the application was granted as to the father's testament, 
then the son's is upset too ; unless the rescission was expressly 
confined to what concerns the father, in which case the pupillary 
portion remains good. 6. If a man makes his son a donation mortis 
causa of a fourth part of what would have come to him if he — 
the testator— had died intestate, then I should say his testament is 
safe. 7- If a man makes secondary provisions in his testament 
{secundas tabulas), and thereby appoints a substitute to his son 
who is under age, this is not a suflicient ground for allowing the 
boy himself to have the plaint for inofiiciousness. 8. Seeing that 
one quarter of the portion due [on intestacy] is enough to bar the 
plaint, a point to consider is whether a disinherited child who 
does not raise the complaint nevertheless counts {partem faciat) ; 
take for instance a case where there are two disinherited sons ; 
but no doubt he does count, so Papinianus lays down, and, if 
the other alleges inolFiciousness, he cannot ask for the whole estate 
of the deceased, but only half. Similarly where there are grand- 
children through two deceased sons respectively, e.g. through the 
one several, say three, and through the other one, the grandson 
who stands by himself will be debarred the plaint by getting 
three twenty-fourths of the inheritance and any one of the 
others by getting one twenty-fourth. 9. The quarter will of course 
be calculated after debts and funeral expenses are deducted ; 
whether testamentary manumissions count, so as to reduce it 
further still, is a point to consider. Then how does the matter 
stand ? If, where a man is appointed sole heir, he cannot allege 
that the testament is inofficious, because he has got the Falcidian 
quarter, but the lex Falcidia does not interfere with testamentary 
manumissions, it may be reasonably assumed that the quarter in 
our case is to be taken after deducting the amount lost by manu- 
missions. It being accordingly the law that the quarter is reduced 
by testamentary manumissions, it will follow that, where a man's 
whole estate consists of slaves, if he gives them all their liberty, 
he bars any plaint for inofficiousness ; unless, perhaps, in such a 
case, the son, if he was not under j^otestas, has a good right, when 
appointed heir by his father, to decline the inheritance, and, 
having by that means transmitted it to the substitute, thereupon 
to bring the plaint for inofficiousness, so ^ as to acquire the 
inheritance [as] on intestacy without incurring the penalty men- 
tioned in the Edict. 10. Where a testator bade his heir perform 
^ Read ut for uel. Cf. M. 

21—2 



324 On inofficious testaments [book v 

some condition in respect of a son or of some other relation who is 
qualified to bring this plaint, and the latter accepted the benefit 
with knowledge of his position, we may well consider whether he 
is not debarred from making the plaint for inofficiousness, since 
he acquiesced in the will ; and a similar question arises when the 
person from whom the gift came was a legatee or a statuliher. 
It may fairly be said that the son is in fact debarred, especially 
where the party whom the testator ordered to make the gift was 
the heir ; however, if it was a legatee, may not the rule be that, 
where the right to bring the plaint for inofficiousness has once 
arisen, an oiFer by the legatee will not take it away? Then why 
did we lay down the rule for the case of the heir in absolute terms? 
The reason was that before entry on the inheritance no right to 
bring the plaint can arise at all. My own opinion is that in this 
matter we must go by the event, so that if what was left the son 
was ofifered him before proceedings were taken by him, then the 
son has all he can ask for, as the gift is offered in pursuance of 
the testator's intention. 11. It follows '' that where a man is 
appointed heir, say for one half, whereas he would have a claim 
to one-sixth of the testator's assets in case of intestacy, and he is 
requested to hand over his inheritance after a specified interval of 
time, it may reasonably be said that he cannot institute proceedings, 
because he has the means of taking the portion due to him and the 
produce thereof; it is well known that [where legacies are deferred] 
the heir must debit himself with the proceeds of the property 
bequeathed towards the discharge of his claim to the Falcidian 
quarter. Hence if a man is appointed heir at the outset to the 
extent of a half and is requested to hand over the inheritance at 
the end of ten years, he has no occasion to bring the plaint, 
because he can easily receive during that time the amount he had 
a right to and the proceeds thereof. 12. Where a man alleges 
that a testament is void or nullified as well as inofficious, he should 
be called upon to choose which contention he would prefer to 
begin with. 13. If a disinherited son is in possession of the 
estate of the deceased, the person named heir can sue to recover 
the inheritance, but the son can bring the plaint in the form 
of a cross action, just as he would proceed if he were not in 
possession but were suing to recover. 14. It must be remem- 
bered that a person who alleges that a testament is inofficious 
without grounds, and thereupon loses, will forfeit what the testa- 

^ Reference is to 8 and 9. 



TIT. ii] On inofficious testaments 325 

ment gave him, and the fiscus can recover it by action as a thing 
which is taken away from the party for unworthiness. However 
he is only deprived of what was given him by the testament where 
he persisted in maintaining a groundless contest till the actual 
decision of the Court was given ; if, before judgment, he gave the 
case up or died, what was given him is not taken away; on the 
same principle, if he is absent and, that being the case, a decision 
is pronounced in favour of the other party, wiio is present, we may 
again say that he can keep what was given him. But a man can 
only lose in pursuance of this rule a thing which he would have 
had the right to enjoy ; if he was requested to hand anything over 
to another, no wrong ought to be done [to the intended bene- 
ficiary]. Hence it is not a bad remark that is made by Papinianus 
{ResiJonsa 2), that if a man is appointed heir and requested to 
hand over the inheritance, and after that he brings the plaint for 
inofficiousness and fails, all he loses is whatever he would have 
got under the lex Falcidia. 15, Where a boy under age has been 
arrogated [by the testator], being one of those relations who, 
irrespective of any adoption and emancipation, have a right to the 
plaint for inofficiousness, I should say that he is debarred the plaint, 
because he has a quarter in pursuance of the enactment of the 
Divine Pius. If however he brings the plaint but does not succeed, 
will he lose this quarter? To tliisi should say that either he ought 
not to be permitted to move the plaint at all, or, if he is permitted, 
then, even if he does not succeed, he must be allowed to have the 
quarter as a debt which is owed him. 16. If the judge goes into 
the case of inofficiousness and decides against the testament, and 
there is no appeal made, the testament is rescinded in law, the 
person in whose favour judgment is given will be sums heres or 
bonornm possessor, according to the nature of his claim, testa- 
mentary manumissions are absolutely void, legacies are not payable, 
and, if they should have been paid already, they can be recovered, 
either by tiie person who paid them or by the successful applicant, 
the recovery being by utilis actio. As a rule, if they were paid 
before the proceedings commenced, the person to recover them is 
the successful applicant, so the Divine Hadrian and the Divine 
Pius laid down by rescript. 17. No doubt, if the allegation of 
inofficiousness is made on some very plain grounds allowed in law, 
as much as five years after the testator's death, tlien manumis- 
sions already made or which there was a good right to demand are 
not to be revoked, but the successful party will have a right to 
have twenty aiirei given him by each freeman. 



326 Oil inofficious testaments [book v 

9 MoDESTiNUS {on inofficious testaments) But if a man 
proceeds within five years' time, manumissions are rescinded. 
However Paulus says the judge will allow cases of freedom given 
by way of Jideicommissum, each person, that is, having to pay 
twenty aurei as before. 

10 Marcellus (Digest 3) If some of the judges in the case of 
an inofficious testament decide against the testament and others in 
favour of it, as is occasionally the case, it is more humane to go by 
the opinion of those judges whose view was in favour of the 
testament, save in case of clear proof that their pronouncement in 
favour of the person named heir was unjust. 1. One thing is per- 
fectly well known : a man who accepts a legacy cannot with 
propriety maintain that the testament was inofficious, unless he 
duly disposed of the whole legacy to some one else. 

11 MoDESTiNUS {Responsa 3) I gave it as my opinion that 
even where a man is successful on the plaint for iuofficiousness, 
still it does not follow that donations which the testator appears to 
have carried out in his lifetime in favour of him [the defendant] are 
upset, or that an action can be had to recover part of what he 
[the testator] may have given him by way of dos. 

12 The same {on presci-iptions) It makes no difference whether 
a son who is disinherited accepts a legacy left to himself or gets it 
through his own son or slave to whom it was left ; either way he 
will be barred by the pnescriptio. Moreover if a slave of such 
a son is appointed heir, and the son manumits him without first 
ordering him to enter on the inheritance, in order that the party 
manumitted may enter of his own free will, the son doing 
this with a fraudulent intention, his action will be barred. 1. If 
a son who is disinherited proceeds to ask a statuliber for the 
money which the latter has to pay, he is held to accept his 
father's will. 2. If a son institutes proceedings for a legacy 
which his father revoked, and, being unsuccessful, falls back on 
the plaint for iuofficiousness, he will not be barred by the prce- 
scriptio ; as, granting that by the original action he affirmed the 
testament, still there is something on the other hand which has to 
be set down to the testator's own fault, so that the son cannot 
with propriety be refused a hearing. 3. AVhere a son of the 
testator owed [his father] a sum of money as co-debtor with Titius, 
and the father ordered in his testament that Titius should be 
released, the son will not, if freed from the debt by a formal 



TIT. n] On inofficious testa7nents 327 

release given to Titius, be deprived of his right of action for 
inofRciousness. 

13 Sc^voLA (Responsa 3) Titia appointed her daughter heir, 
leaving her son a legacy, and in the same testament made the 
following provision : "everything that I have hereinbefore ordered 
to be given or done I desire to be given and done by whatsoever 
person shall be my heir or honormn possessor, even by intestate 
succession, and whatever I hereinafter order to be given [or done], 
I leave it in trust to such person to see that it is given or done." 
This question was asked, — supposing a sister [that is, another 
daughter^] succeeds in a plaint brought in the Centumviral Court, 
will the Jideicommlssa have to be executed in pursuance of the 
above clause? Answer: if tlie question is whether a man can legally 
impose a Jideico?mnissu7n on those persons whom he expects to 
succeed him on intestacy, as heirs or honormn possessores, the 
answer is :— he can. Note by Paulus : he approves liowever of 
the view that Jideicoimnissa made by a man who dies intestate 
need not be discharged, the party being deemed to be out of 
his mind. 

14 Papinianus {Questions 5) A father emancipated his son, 
and kept under his potestas a grandson through that son ; the son 
so emancipated afterwards had another son, and died, having in 
his testament disinherited both sons and passed over his father. 
During the inquiry whether the testament is inofficious as far as 
the sons are concerned, which takes the first place, the question as 
to any issue to be raised on the part of the father of the deceased 
is in suspense ; but if the case is decided against the sons, then 
the father's turn for the plaint comes, and he can proceed with 
his own case. 

15 The same {Questions 14) Though succession to the inherit- 
ance of their children is no right of the parents, considering what 
they hope on their children's behalf and their natural affection for 
them, still, when the regular order of mortality is inverted, the 
property ought, as a matter of natural feeling, to be left by 
children to their parents as much as by parents to their children. 
1. Where a man, after instituting proceedings for inofficiousness, 
changes his mind, and then dies, the plaint is not allowed to his 
heir ; it is not enough to commence proceedings, if the party does 
not choose to follow them up. 2. Where a son brings an action for 

Unless above we read Jilice iorjUio, 'another daughter' for 'her son.' Cf. M. 



^28 On inofficious testaments [book v 

inofficiousness against two heirs, and gets diiferent decisions from 
the judges as to the respective heirs, that is, he is successful against 
one, but is beaten by the other, — it is open to him to sue debtors 
and he is liable to be sued by creditors to the extent of a share in 
the inheritance, and he can, to the like extent, recover specific 
property and divide the inheritance ; in fact it is quite correct to 
say that an action familue erciscundcB is open to him, as it is 
held that he becomes statutable heir for a share ; accordingly 
part of the inheritance remains subject to the testament, and there 
does not seem to be any objection to saying that the testator is to 
be held to die intestate in respect of a portion of his property. 

The same {Responsa 2) Where a son has already taken 
proceedings in the matter of an alleged inofficious testament of his 
moth^^ir against his brother who was appointed heir for a part\ 
and he was successful, a daughter [sister of applicant] who takes 
no .proceedings, or, at any rate, is not successful in any, cannot 
tajte a share as statutable heir along with her brother. 1. A 
father, in pursuance of the right founded on emancipation, got 
(n order for possession contra tabulas of his son's property, and 
/iactually took possession; after this, a daughter of the deceased 
son, who had been disinherited by her father, carried through on 
good grounds an action for inofficiousness : in this case the order 
for possession which tlie father got falls to the ground ; because in 
the former proceedings the subject of the inquiry was the legal 
position of the father, not the legal cliaracter of the testament ; 
consequently the whole iidieritance must be made good to the 
daughter with mesne profits. 

Paulus (Questio7is 2) Where a man abstains from impeach- 
ing an inofficious testament, by way of tacitly renouncing his 
claim to the succession, his share does not count to the prejudice 
of any that desire to raise the plaint. Accordingly, where one of 
two children who are disinherited brings the plaint on the ground 
of an inofficious testament of their father, and thereupon", — looking 
at the fact that, if the testament is upset, the other son too has a 
claim to succeed ab intestato, — the first son would have no right 
to bring a vindlcatlo to recover the whole estate, [it will follow 
that,] if such first son is successful with the plaint, he will take his 
stand on the authority of a res judicata, his assumption being that 

^ For de parte ante it is proposed by M. to read de triente : which would 
make the above " Where a son has taken proceedings etc.. ..heir for one-third." 
2 Insert the next et before quia. Cf. M. 



TIT. ii] On inofficious testaments 329 

the Ceiitumviral Court, at the moment wlieii it made the testator 
intestate, must have believed him to be the only son in existence. 
1. When a decree is made against the testament as being in- 
officious, the deceased is regarded as having had no testamentary 
capacity. This construction is not to be maintained where the 
applicant is present and recovers judgment because the heir makes 
no defence, as in this case it is not held that the judgment of the 
Court makes law, consequently manumissions are upheld and 
legacies are payable. 

The same {on inofficious testaments) There is in fact an 
enactment of the Divine Brothers which recognises the above 
distinction. 

The same {Questions 2) A mother at her death appointed 
a stranger heir for three-quarters, and one daughter for a quarter, 
passing over a second daughter : thereupon the latter brought the 
plaint for inofficiousness and was successful. I wish to ask what 
relief can be had by the daughter who was named heir. My 
answer was this: — The daughter who was passed over ought to 
sue to recover whatever she would have had if her mother had 
died intestate. Hereupon it may be said that the daughter so 
omitted, if she sues for the whole inheritance ab intestato and gets 
judgment in her favour, will in fact have tlie entire and exclusive suc- 
cession, just as if the other had declined the statutable inheritance. 
However it is not admissible that the daughter who was passed 
over should, if she brings the plaint for inofficiousness, be given a 
hearing in opposition to her sister ; and another thing to be said 
is that the sister who has made entry in pursuance of a testament 
is not on the same footing as one who declines to take up the 
succession : accordingly the sister [who Avas passed over] must sue 
to recover half from the stranger, and it may be safely maintained 
that by such suit she will recover the full half, on the ground that 
half the whole estate is her proper share. It would follow from 
this that the testament is not upset altogether, but the testatrix is 
made intestate to a certain extent, even though the Court set aside 
her last will on the assumed ground of insanity. The fact is that 
if any one holds that where the daugliter succeeds on the plaint 
the whole testament is upset, it must be maintained that her sister, 
who was appointed heir, has as good a right as she to enter on the 
inheritance, considering that one who entered in pursuance of 
a testament which she thought was valid cannot be regarded as 
declining the succession ab intestato, which she did not know to be 



330 On inofficious testaments [book v 

open to her ; we know that even where persons are aware of their 
legal rights, still they do not lose them because they choose to go 
upon some other claim which they believe to be good. This is 
exemplified in the case of a patron who adopts a deceased freed- 
man's will in consequence of a mistaken opinion which he has 
formed of it, as such a one is not regarded as having declined the 
bonorum possessio contra tabulas. It is clear from this that the 
daughter who was passed over cannot sue to recover the whole 
estate, seeing that, even if the testament is upset, the right of the 
sister who was appointed heir to enter on the inheritance herself is 
unimpaired. 

SC^VOLA {Questions 2) Where a person wishes to make out 
a case of inofficiousness, in spite of its being denied that he is son 
to the deceased, he is not allowed to have the Carbonian hoyiorum 
possessio, as that is only granted in cases where, if the applicant 
were really son, he would be heir or bonorum possessor, the object 
being to enable liim for the time being to be in possession and 
have maintenance without being liable to have any action pre- 
judged that he might be in a position to bring ; but where a person 
raises a case of inofficiousness, he cannot bring any action nor 
take any other proceeding except the hereditatis petitio, and he 
has no right to maintenance. The reason for the above rule is 
that otherwise the party might possibly be in a better position 
than he would be if the other side had admitted [that he was a son 
of the deceased]. 

Paulus {Responsa 3) Where a man commences the plaint for 
inofficiousness and afterwards drops the action owing to fraudulent 
representations of tlie person named heir, who pretends that he is 
under a tacit trust to liand over to him a third part of the in- 
heritance, he cannot be held to have abandoned the plaint, and 
consequently he is not forbidden to recur to the proceedings which 
he commenced. 1. Again, the question has been raised whether 
the heir has a right to a hearing, if he asks to have made good the 
payments which he made before the plaint for inofficiousness was 
brought. The answer given was that a man, who with his eyes 
open discharges a Jideicommissum by which he was not bound, has 
no right thereupon to an action to recover what he paid. 2. The 
same authority laid down tliat where a person who is appointed 
heir is deprived of the inheritance by means of the plaint for 
inofficiousness, everything ought to proceed as if no entry had 
been made ou the inheritance ; accordingly the person who was 



TIT. n] On inofficious testaments 331 

appointed heir will retain his full right of action against the 
successful applicant for any debt and he can set oiF any 
debt. 

Tryphoninus (Disputations 17) A son is not debarred from 
impeaching the testament of his mother for inofficiousness by the 
fact that his father gets a legacy under the testament, or even has 
entered on the inheritance, although he should be in the father's 
potestas : indeed I have myself laid down that the father is at 
liberty to impeach it on his son's behalf, as the indignity affects the 
son. 1. It was asked further, supposing the son were unsuccessful 
in his impeachment, whether what was given to the ftither would 
escheat to the State ; the fact being that * if he had succeeded, the 
benefit won Avould go to some one else, and that nothing in the case 
turns on the duty of the father, but the whole question is as to the 
merits or demerits of the son ? As to this, we must incline to the 
opinion that the father does not lose what was given him, if the 
decision is in favour of the testament. 2. IMuch more is it the case 
that where a testator leaves me a legacy, and then his son takes 
proceedings to set aside the testament for inofficiousness, and dies, 
leaving me his heir, whereupon I continue the proceedings relating 
to the inheritance, but fail of success, I do not lose the legacy left 
me by the testament : — I am assuming that the deceased son had 
already commenced proceedings. 3. Again, if I adopt some person 
sui juris after he has already brought proceedings to try the 
question of the inofliciousness of a testament under which testa- 
ment a legacy was left me, and I continue the case as representing 
my adopted son, and fail of success, I ought not to lose my legacy, 
as there is no demerit on my part, such as to entitle the fiscus 
to take away what was left me ^, seeing that I did not bring the 
action on my own personal behalf, but in virtue of a kind of right 
of succession. 

Paulus (on inofficious testaments) If your case is that an 
emancipated son is passed over [in his father's testament] and a 
grandson through him who remained under the j^otestas of the 
testator is appointed heir, [my answer is that] the son can sue for 
bonorum possessio against his own son, the testator's grandson, 
but he cannot bring the plaint for an inofficious testament. But 
if the emancipated son is disinherited, he can bring the plaint, and 

1 Read the mark of interrogation after filii agitur instead of after pub- 
licaretur. 

2 For derelictum read relictum. Cf. M. 



332 On inofficious testaments [book v 

thereupon he can be joined with his own son, and lie will get the 
inheritance together with him. 1. If disinherited children have 
purchased the inheritance or any specific things contained in it 
from the persons appointed heirs, knowing that the vendors are 
heirs, or have hired land from them, or done anything of that 
kind, or have paid the heir debts which they owed the testator, 
they are held to acquiesce in the will of the deceased, and they are 
excluded from the plaint. 2. If there are two sons disinherited, 
and both take proceedings for an inofficious testament, after which 
one of them resolves to discontinue the proceedings, his share goes 
to the other by accretion. The same follows equally if he is barred 
by lapse of time. 

24 Ulpianus [oil Sahinus 48) It very often happens in con- 
nexion with the plaint for inofficiousness that difierent decisions 
are pronounced in one and the same case. Suppose for instance 
the applicant is a brother to the persons appointed heirs and the 
latter have different legal positions. Should this be the case, the 
deceased must be held to have died partly testate and partly 
intestate. 

25 The same {Disputations 2) If some donation is made not 
mortis causa but inter vivos, but in any case with the intention 
that it shall count toAvards the quarter, it may fairly be said that 
the plaint for inofficiousness does not lie, if either the party gets 
the quarter by the donation, or else, if he does not get so much, 
the amount by which the donation falls short is made up in 
accordance with the arbitration of an impartial person ; or, at any 
rate, [if he is to have the plaint,] the donation must be brought 
into hotchpot. 1. Where a man who has no ground on which to 
present the plaint for inofficiousness, being nevertheless allowed to 
do so, endeavours to upset the testament in part, and chooses one 
particular heir against whom to bring the plaint, [and is successful 
thereon \] the proper thing to say is that, inasmuch as the testa- 
ment is valid as to the remainder, and the persons who had a 
prior claim to the applicant are shut out, the applicant has insti- 
tuted the proceedings to good purpose. 

26 The same {Disputations 8) If a man is appointed heir on 
condition, say, that he manumits Stichus, and he does manumit 
him, but after the manumission the testament is pronounced in- 
officious or unjust; it is still right that he should be relieved, that 

1 Cf. M. 



TIT. ii] On inofficious testaments 338 

is, that he should recover from the manumitted man the value of 
the slave, so as to prevent his losing the slave for nothing. 

The same {Opinions 6) Where, after the impeachment of a 
testament for inofficiousness has been set on foot, the parties have 
come to an agreement by which they compromise the case, but the 
heir fails to abide by the terms of the compromise, it is held that 
the case for the plaint remains as it was before. 1. Where a man 
avers that he is the son of a testator Avho in his testament denied 
that he was so, but nevertheless disinherited him, there is still a 
good case for the plaint for inofficiousness. 2. The testament of 
a soldier cannot be alleged to be inofficious even by an applicant 
who is a soldier himself. 3. A plaint to set aside a testament for 
inofficiousness in respect of a certain portion had been brought by 
a grandson of the testator against his own father's brother, or some 
other person named heir, and he was successful ; but the heir 
under the testament appealed : it was held that in the meantime, 
considering the want of means of the applicant, who was a boy 
under age, he might have an order for maintenance on a scale 
corresponding to the amount of the fortune a share in Avhich was 
being sued for in his name by the proceedings to impeach the 
testament as inofficious ; and that the other party was bound to 
keep him supplied accordingly till the case was decided. 4. The 
plaint for inofficiousness may be brought on the testament of a 
mother who held the mistaken opinion that her son was dead, and 
so appointed some one else heir. 

Paulus (mi Septemviral cases) In a case where a mother 
was informed falsely that her son, who was a soldier, was dead, and 
she thereupon appointed other persons heirs, the Divine Hadrian 
decreed that the inheritance should belong to the son, on the 
understanding that manumissions and legacies were to be main- 
tained. Particular attention should be paid^ in this case to the 
additional clause about manumissions and legacies ; as where a 
testament is made out to be inofficious, none of its provisions 
are valid. 

Ulpianus {Opinions 5) Where the legatees suspect that 
the persons nominated heirs and tlie party who is taking pro- 
ceedings to set aside the testament as inofficious are in collusion, 
it is a settled rule that the legatees have a right to appear and 
argue in support of the will of the deceased ; and the same persons 
have in fact a right to appeal, if judgment is given against the 
1 Read adnotandum for adnotatum. Cf. M. 



334 On inofficious testaments [book v 

testament. 1. Even bastard children are allowed to allege in- 
officiousness in respect of the testament of their mother. 2. Where 
the impeachment of a testament for inofficiousness has been set on 
foot, then, although the matter should be settled by a compromise, 
nevertheless the testament remains in full force ; consequently the 
testamentary manumissions and the legacies, to the extent sanctioned 
[as to the latter] by the lex FalcicUa, retain their validity. 3. As 
a woman can never adopt a son without the leave of the Emperor, 
it follows that a man cannot bring proceedings to set aside for 
inofficiousness the testament of a woman whom he falsely supposed 
to be his adoptive mother. 4. Proceedings for inofficiousness 
ought to be brought in the province in which the persons nominated 
heirs have their home. 

Marcianus {Institutes 4) Where a son has been given in 
adoption, the natural father has a good right to take proceedings 
to set aside the son's testament for inofficiousness. 1. According 
to a rescript of the Divine Severus and Antoninus, guardians^ can 
take proceedings to set aside a testament as inofficious, or as forged 
(falsum), without risking the loss of anything left them by the 
testament. 

Paulus (on Septemviral cases) Where a person who is 
qualified to impeach a testament is unwilling or unable to do so, it 
is fair matter of inquiry whether it is not open to the person next 
in order to take proceedings. In fact the law is that it is, so that 
it is a case for succession. 1. On the question of the plaint for 
inofficiousness on the part of children or parents, it makes no 
difference who the person is that is nominated heir, whether he 
is taken from among children or strangers, say fellow-townsmen. 
2. If I become heir to the person who was appointed heir himself 
under the testament which I wish to impeach as inofficious, this 
circumstance will be no bar to me, especially if I do not possess 
the portion which is in question, or only possess it in my own right 
(jure suo)". 3. The rule is different if a man makes me a legacy 
of what he received under the testament in question ; if I accept 
that, I am debarred from impeaching the testament. How then if 
I confirm the testator's will in some other manner ? Suppose, for 
instance, after the death of my father, I endorse on the testament 
itself that I consent to it ; in this case I am debarred from im- 
peaching it. 

^ For tutorihus read tutores. 
* Cf. Dig. 41. 10. 1. pr. 



TIT. n] On inofficious testaments 335 

The same {o7i inofficious testaments) If a disinherited son 
acts as advocate or undertakes to be procurator for one who sues 
for a legacy under the testament, he is not allowed to impeach the 
same testament himself; a man who has in any way expressed 
his approbation of any testamentary disposition whatever of the 
deceased is regarded as accepting the testament. 1. If a dis- 
inherited son becomes heir to a legatee and sues for the legacy, 
we may fairly consider whether he is not debarred from bringing 
the impeachment ; there is no doubt about the will of the deceased, 
and on the other hand it is a fact that nothing has been left him 
by the testament. However his safest course will be to abstain 
from suing for the legacy. 



III. 

On the action for RECO\rERY OF AN INHERITANCE. 

Gaius {on the ^yrovincial Edict 6) A man may have a right 
to an inheritance either by the old law or the new. By the old, in 
virtue of the Twelve Tables or of a testament made in due form 
of laAv, 

Ulpianus (on the Edict 15) whether the party is made heir 
directly or by his own act or through some one else, 

Gaius (on the provincial Edict 6) for example, where a 
man has some person under his 2^otestas, and, that person being 
appointed heir, he orders him to enter on the inheritance ; and we 
may add that if a man is made heir to Titius where the latter has 
himself become heir to Seius, then, just as he may lay claim in an 
action at law to the inheritance of Titius, so he may to that of Seius 
too. A man may also be heir on intestacy, as where, let us say, he 
is sutis heres to the deceased, or he is an agnate, or he manumitted 
the deceased, or his patei'/amilias manumitted him. Persons be- 
come heirs by the new law whenever they are entitled to the 
inheritance in virtue of a decree of the senate or of an Imperial 
constitution. 

Paulus (on the Edict 1) If I bring the action for recovery 
of an inheritance (heredUatis petitio) against a man who is in 
possession of a single piece of property which is the only subject 
of the contention, he [the defendant] will have to hand over equally 
anything which comes into his possession afterwards. 



336 Action for recovery of inheritance [book v 

Ulpianus (on the Edict 14) The Divine Pius laid down by 
rescript that the possessor of an inheritance about which a con- 
tention arises is not to be allowed to sell any part of it before the 
proceedings are begun, unless he likes to give security for the 
whole amount of the inheritance, or for the handing over of every- 
thing contained therein. However, the Praator announced by Edict 
that on special ground shown, he would allow some portion of the 
property to be disposed of, though no such security were given, but 
only the ordinary undertaking, and that, even thougli the trial 
had begun ; because, if diminution of the property were barred al- 
together, this might stand in the way of some independent desirable 
objects. Suppose, for instance, something is required for funeral 
expenses ; this is an object for which the Prsetor allows a portion 
of the property to be spent. Again, suppose there is ground to 
believe that if a sum of money is not paid by a given day, some 
article which is pledged for the debt will be sold. A diminution of 
the property will also be necessary in order to provide food for the 
household ; furthermore, the Praetor allows the sale of things which 
in a short while would perish. 1. The Divine Hadrian laid down 
in a rescript to Trebius Sergianus that ^lius Asiaticus should give 
security for the inheritance which it was sought to recover from 
him ; and then, the rescript continues, he can raise the question of 
the testament being forged ; the point is that proceedings on the 
hereditatis petitio will be stayed while the question of forgery is 
being tried. 2. A trial which is had for the recovery of an in- 
heritance is of that preeminence that no other proceeding is allowed 
to prejudge the question which is at issue in it. 

The same {on the Edict 75) Where a testament is alleged 
to be forged [falsmn], but a legacy is sued for in pursuance of it, 
either the legacy must be paid, on an undertaking being given, or 
the question must be argued as to whether the legacy is due [on 
the footing of the testament itself], although the testament is 
alleged to be forged. But no legacy should be paid to tlie person 
who raises the question of forgery, if the question is once set down 
for trial. 

The same {on the Edict 14) Where any one alleges that he 
has a right to his liberty in pursuance of a testament, the judge 
ought not to deliver judgment on the question of liberty, lest he 
should prejudge the question for whoever will have to pronounce 
on the testament ; this was enacted by the senate ; but the Divine 
Trajan himself laid down that the trial on the question of liberty 



TIT. m] Action for recovery of inheritance 337 

ought to be stayed until the action for inofRciousness is either 
struck out or carried through. 1. However, trials of liberty cases 
are only put off where the question of inofficiousness has reached 
the stage of joinder of issue ; if the matter does not come to that 
point, the question of liberty is not deferred. This is laid down in 
a rescript of the Divine Pius. The facts were these. Proceedings 
had been taken against one Ijcinnianus to determine his status, 
who accordingly, in order to prevent a speedy decision as to what 
his legal status was, avoided appearing at the trial on the question 
of liberty, declaring that he Mould take issue on the question of 
inofficiousness of the testament, and would then bring a hereditatis 
petitio, as his contention was that the testament made him free and 
heir. Hereupon the Divine Pius lays down that if Licinnianus had 
been in possession of the inheritance, he would be in a better 
position for being allowed a hearing, because then he would have 
defended the action claiming to be heir-at-laAv, and it was open to 
the party who professed to be his owner to prosecute^ the inquiry 
as to an inofficious testament ; but, as it was, his servitude ought 
not to be suspended for five years on the pretence that there was a 
trial for inofficiousness to come in which Licinnianus himself had 
not joined issue. The Emperor did, however, allow the judge to 
form an opinion in a general way whether the trial on the testament 
was asked for in good faith, and ordered, in case he found that it 
was, that a short period should be fixed at the end of which, if 
issue had not by that time been joined, the judge who had to try 
the question of liberty should be called upon to do his office. 
2. But the Divine Pius [also] laid down that whenever a man has 
to defend a case in which the issue is as to his own liberty and 
heirship, in which, however, he does not allege that he is free by 
virtue of the testament, but that he was manumitted in some other 
way, say, for instance, by the testator himself in his lifetime, then 
the trial of the question of liberty ought not to be postponed, even 
though it were expected that judicial proceedings would be taken 
as to the testament ; it is true, the Emperor added, this was always 
subject to the proviso that the judge of the question of liberty must 
be warned that he Avas not to listen to any argument in favour of 
liberty that was founded on the testament itself. 

Paulus {on the Edict 16) A man is not prevented from 
suing to recover a statutable inheritance on the ground that he 
acted in pursuance of the will of the deceased at a time when he 
did not know whether the testament was valid or not. 

1 M. suggests adigere for agere. 
M. J. 22 



338 Action for recovery of inheritance [book v 

9 Ulpianus (on the Edict 15) It ought to be specified that 
according to the strict rule the only person liable to a petitio 
hereditatis is one who possesses [i.e. exercises] either as heir or as 
possessor, some [alleged] right, or possesses a thing forming part 
of the inheritance, 

10 Gaius [on the 2)rovincial Edict 6) however small the thing 
may be. 1. Hence where a man is heir as to the whole estate or 
as to a share, he frames his issue so as to assert that the inheritance 
is his in whole or in part, but all that is handed over to him, in 
virtue of the judge's office, is that which the other party has in his 
possession, that is, the whole of it, if the plaintiff is sole heir, or [in 
any case] such share in it as the plaintiff has in the inheritance. 

11 Ulpianus {on the Edict 15) A man possesses as heir {pro 
herede) when he believes himself to be heir. Whether a man can 
equally possess as heir when he knows that he is not heir is a 
question ; but Arrianus holds {De inte7'dictis b. 2) that he is liable 
[to the proceeding under discussion], and Proculus maintains that 
such is the present practice. Indeed it should be added that a 
honorum possessor is held to possess as heir. 1. A man possesses 
"as possessor" when he is simply a plunderer, 

12 The same {on the Edict 07) who, if he is asked on what 
ground he is in possession, will only answer "Because I am," and 
will not maintain that he is heir, even by way of false pretence ; 

13 The same {on the Edict 15) in short, one who is unable 
to allege any title to possess at all ; so thieves and robbers are 
liable to the petitio. 1. Moreover, this title, pro possessore, is 
[one that may be] attached and, so to speak, fastened to any 
other title. For instance it may be attached [hreret] to the title 
of pro emptore (title as purchaser) ; if I buy from a lunatic whom 
I know to be such, I possess as possessor. Again, the question is 
asked in connexion with the title ^jro donato (as donee) whether a 
person who possesses upon that title does so pro possessore, for 
instance, a husband or wife ; and Julianus's opinion is generally 
adopted that he or she does possess pro 'possessore, consequently he 
or she will be liable to the 2^<ititio hereditatis. Similarly the title 
pro dote (by right of dower) may take the form of possession pro 
possessore, as, for example, where I marry a girl under twelve years 
of age and accept something by way of dos, knowing the girl's age. 
Again, if a legacy is paid me on grounds to my knowledge false, 
I shall certainly possess pro possessore. 2. A man who hands over 
an inheritance [in pursuance of a f^deicommissum] cannot be liable 



TIT. Ill] Action for recovery of inheritance 339 

to a petitio hereditatis, unless he did it dishonestly, that is, he knew 
[it was not to be done] and 3 et he did it ; even past dishonesty is 
material in a petitio hereditatis, the view being that the party dis- 
honestly gave up possession. 3. Neratius says {Parchments 6) that 
the petitio hereditatis can be brought against an heir, even where 
he is unaware that the deceased himself was possessing as heir or 
as possessor. In b. 7 he says that the rule is the same even where 
the heir believed that the things [demanded] were part of some 
inheritance which was open to him. 4. How if a person purchases 
an inheritance ? ought an utilis j^etitio hereditatis to be allowed 
against him, to prevent his being worried by a number of separate 
actions ? Of course the vendor is liable ; but suppose no vendor is 
to be found, or he sold for a small sum of money and was a bona 
fide possessor; can the purchaser be got hold of? Here Gains 
Cassius thinks an utilis actio must be allowed. 5. The same rule 
holds where the heir, being told to sell the inheritance for a small 
sum, sells it to Titius ; Papinianus believes the rule to be that the 
action is allowed against the fideicommissary ; as it is better that 
the heir should not be sued where he only received some very trifling 
price: 6. and the same rule applies where the heir was requested 
to hand over the inheritance, retaining a specified quantity. Of 
course, if he was requested to hand over the inheritance on receiving 
a specified amount, — such is the opinion of Papinianus, — the petitio 
hereditatis cannot be brought against the heir, because what the 
heir receives by way of fulfilling a condition is not possessed by 
him as heir. HoAvever Sabinus gives an opposite opinion in the 
case of a statidiber ; and this is the truer view, as the money 
received from a statuliher is part of the inheritance. 7. The above 
rule applies also where the heir merely retains the profits arising 
from the inheritance, in this case too he is liable to the 2^€titio 
hereditatis. 8. If a man buys an inheritance to which some one • 
else is entitled, with knowledge of the fact, he possesses, so to 
speak, as jjossessor, and thereupon some hold that he may be sued 
in a petitio hereditatis ; this opinion, however, I do not think is 
correct, as no one is a plunderer who pays a price ; however, being 
the purchaser of a single collective estate {universitas), he is liable . 
to an utilis actio. 9. Again, where a man buys an inheritance from 
the Fiscus on the assumption that there is no owner for it, it is 
perfectly just that there should be an utilis actio allowed against him. 
10. The statement is made in Marcellus {Dig. 4), that if a woman 
gives an inheritance as a dos, the husband is in possession of the 
inheritance by right of dower {pro dote), but he is liable to an utilis 

22—2 



340 Action for recovery of inheritance [book v 

IMtitio hereditatis for recovery of it ; Marcellus however adds that the 
woman herself is liable to a direct action, especially if a divorce 
has already taken place. 11. It is further settled that the heir 
of a deceased possessor is liable to a petitlo hereditcitis in respect 
even of such things as the deceased possessed as purchaser, on the 
ground that the heir possesses "as heir," although he is beyond 
doubt equally liable to the suit in respect of things Avhicli the 
deceased possessed "as heir" or "as possessor." 12. Where a man 
is in possession of an inheritance on behalf of some one who is 
absent, it being uncertain whether that person will ratify his action 
or not, I should say that he can be called upon to defend the pditio 
hereditatis on behalf of such absent person, but that he is certainly 
not so liable on his own account, because a man cannot be held to 
possess as heir or as possessor, who possesses as representing 
another ; unless indeed it should be said that, inasmuch as the 
principal does not ratify, therefore the proGurator is, so to speak, 
a plunderer ; on that view he can be held liable on his own account. 
13. The petitlo hereditatis is not good simply against a man who 
possesses something or other which formed part of the inheritance; 
even if he possesses nothing, it is a fair question whether, by 
volunteering to defend the suit, though he does not possess, he 
does not make himself liable. Celsus tells us {Di(j. 4) that he is 
liable on the ground of fraud, as a man who volunteers to defend 
the petition acts fraudulently ; and Marcellus expresses his approval 
of this opinion in general terms, in commenting on Julianus ; every 
one, he says, who volunteers to defend a suit for recovery of the 
inheritance is liable just as if he were in possession. 14. Again, 
where a man uses fraud so as to avoid being in possession, he will 
be liable to a petitlo hereditatis. But where I lose possession with 
fraudulent intent, and then another acquires it who is prepared to 
stand a trial, Marcellus {Dig. 4) discusses the question whether 
thereupon any assessment of damages does not become null and 
void as against the party so ceasing to possess, and, on the whole, 
he says that it does, unless the party who sues has an interest in 
its being held otherwise ; but at any rate, he says, there is no 
doubt that the assessment becomes void if the party acquiring 
possession is prepared to hand over the property. But if the party 
who went out of possession with dolus is sued first, this will not 
discharge the one who possesses. 15. [The petitlo hereditatis 
may] also [be brought] against a debtor to the estate, on the ground 
that he possesses (withholds) a right ; it is settled that the petitlo 
may be brought against 'possessors' of a right; 



TIT. in] Action for recovery of inheritance 341 

14 Paulus {on the Edict 20) and whether the defendant was 
liable on a delict or on a contract is a matter of indiiFerence. The 
expression "debtor to the estate'' is held to include a person who 
made a promise to a slave who was part of the estate, or one who 
did some damage before the inheritance was entered upon, 

15 Gaius {on the jivovincial Edict G) or stole something which 
was pai't of the estate. 

16 Ulpianus {on the Edict 15) But when the debt owed by 
the person against Avhom the petitio is brought is deferred or 
on condition, no judgment can be given against the debtor ; it is true 
that, [in the case of such debts,] according to the opinion of 
Octavenus, as reported by Pomponius, it is the time when judgment 
is given that the Court must look at [on the question] whether the 
day for payment has come ; the same rule applies to a stipulation 
on condition : and, if the day has not come, the defendant may be 
compelled, on motion to the judge, to give security for the discharge 
of the debt when the day does come, or the condition happens. 
1. The petitio hereditatis may equally be brought against a man 
who is in possession of the price got for things forming part of the 
inheritance, or who has received jjayment from a debtor to the 
estate. 2. Accordingly Julianus says {Dig. 6) that where a man 
brings t\iG petitio hereditatis, and has received the damages assessed, 
he is himself liable to be sued in like manner. 3. The petition can 
be brought not only against a debtor of the deceased but against a 
debtor to the estate ; indeed both Celsus and Julianus declare that 
it may be brought against a person who acted for the benefit of 
the estate as a voluntary agent, but that where the party was 
voluntary agent for the heir it certainly cannot ; there can be no 
petitio hereditatis against a debtor of the heir's. 4. According to 
Julianus, where a man who was in possession as heir is ejected by 
force, the petition may be brought against him as being the 
possessor of a right, because he lias the interdict unde vl, which he 
is bound to assign, if judgment is given against him ; but the party 
who ejected him is liable to be sued in the same way too, because 
he is in possession "as possessor" of things forming part of the 
inheritance. 5. Julianus says further that if a man sells a portion 
of the inheritance, whether, wiien he does so, he is in possession of 
it or not, he is liable to the petition, and this whether he has been 
paid the purchase money or is in a position to sue for it, he too [in 
the latter case] assigning his rights of action. 6. The same writer 
says that a patron cannot bring a petitio hereditatis against a man 



342 Action for^ recovery of inheritance [book v 

to whom his freedman transferred property in fraud of him the 
patron, because the transferee is liable to the Calvisian action on 
the part of such patron ; the transferee is in fact debtor to the patron 
and not to the [deceased freedman's] estate. On the same principle 
there can be no petitio hereditatis against one to whom the deceased 
[freedman] made a donatio mortis causa. 7. Again, Julianus tells 
us that where a man [who assumes to be heir] hands over an 
inheritance or delivers specific objects in pursuance of a fidei- 
commissum, the petition can be brought against him, because he 
has a right to bring a condictio to recover the things transferred 
in [the assumed] discharge of the trust, so that he is, so to speak, 
the 'possessor' of a right : 8. and he adds that if the party should by 
way of discharging the trust pay over the purchase money of things 
which he sold, the jMtitio hereditatis can be brought against him, 
because he has a right to recover the money. In these cases 
however, so Julianus says, the defendant will only have to make 
over his rights of action ; as the things themselves are in existence, 
and the plaintiif can, if he likes, claim them by an action in rem, 

17 Gaius {on the provincial Edict 6) If the possessor of the 
inheritance should, in the belief that he is heir under the testament, 
pay money out of his own pocket by way of discharging legacies, 
and some one who claims ah intestato should recover the inheritance 
from him, then, although it may be held to be so much the worse 
for the defendant if he did not look out for himself by taking a 
formal promise by stipulation that the legacies should be returned, 
in case the inheritance were recovered by some one else, — still, 
inasmuch as it may chance that he paid the legacies at a time when 
no question had been raised, and it was for that reason that he 
omitted to have any undertaking given him such as above mentioned, 
the rule is that in such a case, if the inheritance is recovered, he is 
to be allowed to bring an action for repayment of the money. At 
the same time, where the action for repayment is allowed in the 
absence of an undertaking, there is some danger of its being 
impossible to recover anything by the action, owing to want of 
means in tlie person to whom the legacy was paid ; accordingly, it 
is laid down by a senatus consultum tliat the party M^ho paid is to 
be relieved as follows : he is to recoup himself by retaining things 
which form part of the inheritance, but he must assign his rights 
of action to the plaintiff in tlie j^etitio, for him to take proceedings 
in pursuance thereof at his own risk. 

18 Ulpianus (on the Edict 15) The following is a question 



TIT. m] Action for recovery of inheritance 343 

worth considering. A person in possession of an inheritance effects 
a sale by the agency of a banker, after which the purchase money 
is lost in the bankei''s hands ; is he liable to a petitio hereditatis, 
having regard to the fact that he has got nothing and he can get 
nothing ? Labeo holds that he is liable, as the ill-advised credit 
which he gave to the banker must be at his own risk ; but, 
according to Octavenus, he will only have to assign his rights of 
action, and for such rights of action he is liable to a petitio here- 
ditatis. My own view is that, in the case of a person who was in 
possession in bad faith, Labeo's opinion is the sound one ; but in the 
other case, that of a honajide possessor,! should say that Octavenus's 
opinion is the one to follow. 1. Where proceedings are being taken 
by way of petitio hereditatis against one who is not in possession 
of a thing, nor, so to speak, of a right, at the time, but who after- 
wards gets hold of one of the two, will he be held liable to the 
petition ? Celsus lays down quite correctly {Dig. 4) that the order 
may be very properly made upon him, though at first he did not 
possess anything. 2. We may now consider what kind of subject- 
matter is embraced by the petitio hereditatis. As to this, the rule 
is that the action comprises every kind of thing that forms part 
of an inheritance, whether it consists of a right or of a material 
object. 

Paulus {071 the Edict 20) In fact, it includes not only 
objects forming part of the inheritance, but even those which do 
not form part of it, but which nevertheless are at the risk of the 
heir, such as things pledged with the deceased, or lent to him or 
deposited in his custody. As to things given in pledge, there is a 
right of action to recover them separately, though they are still 
comprised in the petitio hereditatis too, like things in respect of 
which the Publician action lies. It is true that there can hardly 
be any [separate] action in respect of objects which have been 
lent or deposited, still as people are subject to risk in regard of 
them, it is fair that they should be given up. 1. But if the 
period necessary for acquiring by usus as purchaser should have 
been completed by the heir himself, a thing so acquired will not be 
comprised in the petitio hereditatis, because the heir, that is, the 
person who would be plaintifi" in the petitio, has a good vindicatio, 
and there is no exceptio allowed to the defendant in possession. 
2. The petitio hereditatis further comprises things as to which the 
[deceased being] possessor had a right of retention, though not a 
right of action for their recovery ; for instance, where the deceased 



344 Action for recover}/ of inheritance [book v 

swore that a thing was not the property of some one who sued 
him to recover it and, after that, died, this too must be handed over. 
Indeed even where the possessor of the thing has lost it by his own 
negligence, he will be liable accordingly. A similar rule applies to 
a plunderer, although he is not liable on the ground of negligence ; 
simply he has no right to keep the property in his possession. 
3. I have always maintained the opinion that where an inheritance 
has to be given up, servitudes are not included, because there is 
nothing which can be given up under that head, as there is in the 
case of material things and the profits derived from them ; but if 
the owner of the servient land refuses to allow free passage he 
can be sued in the appropriate action. 

20 Ulpianus {on the Edict 20) The inheritance [to be sued for] 
further comprises whatever was procured in order to preserve the 
estate, as, for example, slaves, cattle, and anything else which was pro- 
cured as a matterof necessity for the benefitof the estate. Where such 
things were bought with money which formed part of the inheritance, 
they are beyond all doubt comprised ; if they were not so bought, 
it is a question for us to consider whether they are comprised ; but 
I should say they are even then, if some great advantage to the 
inheritance is involved ; of course the heir must make good the 
purcliase-money. 1. At the same time it is not everything that is 
bought with money forming part of the inheritance that is comprised 
in the petitio. Julianus, for instance, tells us {Dig. 6) that if the 
possessor bought a slave with money which was part of the inherit- 
ance, and then the petitio heredltatis is brought against him, the 
slave will only be comprised in a case where it was an advantage 
to the inheritance that he should be purchased ; if the possessor 
bought the slave for his own convenience, then what is comprised 
is the price which he gave for him. 2. On the same principle, 
suppose the possessor sold land belonging to the inheritance, — if 
he had no good reason for doing so, then, according to Julianus, 
the land itself with mesne profits is comprised in the suit ; but if 
he did it for the purpose of paying a debt due from the estate, all 
that is comprised is the price which he received. 3. Tiie things 
comprised in the petitio, he goes on to say, are not simply such as 
existed at the moment of the death, but any increase that accrues 
to the inheritance subsequently ; an inheritance does, as a matter 
of fact, admit of increase and decrease. Anything which accrues 
after the inheritance has been entered upon, if it is produced 
out of the inheritance itself, will, I should say, accrue to the 



TIT. Ill] Action for recover jj of inheritance 345 

iuheritance, but if it comes from some other source, it Avill not ; such 
things go to the possessor personally. All produce is so much 
addition to the inheritance, whether it accrued after or before 
entry on the inheritance ; and the children born of female slaves no 
doubt accrue to the inheritance. 4. Whereas the statement was 
made above that all actions the right to which is part of the estate 
are comprised in the petitio, the question arises whether they carry 
with them their regular character or not. For instance, suppose 
an action in which the measure of damages is increased by the 
defendant's denial : does the right to this action carry the right to 
the increase with it, or is it open only for the simple amount? 
Take the action under the lex Aquilia. Julianus tells us {Dig. 6) 
that the defendant will have to pay the simple amount. 5. The same 
writer says, and very justly, that if the possessor should have had 
judgment given against him in a noxal action brought by the 
deceased, he cannot now get off on motion by a surrender for noxa, 
because a man is only allowed to make such a surrender up to the 
time of an action against him on the judgment, but after he has 
become defendant in that action, he cannot free himself by a 
surrender for noxa ; and in fact he has been made such a defendant 
by means of the petitio heredltatis. G. Besides the above, we find a 
great many questions discussed relative to the petitio heredltatis, to 
the sale of the assets of deceased persons, to past fraud and to mesne 
profits. But as an express rule Avas laid down on these subjects 
by a decree of the senate, the best plan is to give the text of the 
decree and append an explanation. " On the fourteenth of March 
Quintus Julius Balbus and Publius Juventius Celsus, Titus Aufidius, 
CEnus Severianus, consuls, expressed themselves on the subject of 
those matters which the Emperor Csesar, son of [the Divine] 
Trajanus the Parthian conqueror and grandson of the Divine Nerva, 
Hadrianus Augustus, Emperor and mighty Prince on the third of 
March last preceding propounded and set forth in a bill as to what 
he desired should be done, whereon they resolved as follows : — 
6 a. 'Whereas, before such portions of the goods of Rusticus as fell 
to the State were sued for by the Treasury, those persons who 
deemed themselves the heirs sold the iuheritance, we hold that 
interest ought not to be demanded on the purchase money received 
as the price of the things sold, and tlie same rule must be observed 
in similar cases. 6 h. We hold further that, if judgment were given 
against those persons who were defendants to the petitio heredltatis, 
they would be bound to pay over the purchase money which came 
to their hands as the price of any objects included in the inheritance 



346 Actio7i for recovery of inheritance [book v 

which were sold, even though such objects were destroyed or 
damaged before the petitio was brought. 6 c. Furthermore, that 
where any persons should have laid hands on the goods of the 
deceased, knowing that they did not belong to them, even though 
they contrived before joinder of issue to avoid being in possession 
of them, judgment ought to be passed upon them just as much as 
if they were in possession ; but, wherever they should have had 
reasonable ground to believe that the goods belonged to them, the 
judgment should be only for the amount to which they were 
enriched by what they had done. 6 d. The senate held that the 
petitio hereditatis must be deemed to have been brought for the 
Treasury so soon only as the party knows that it is being brought 
against him, that is, so soon as it is notified to him or he is sum- 
moned by a letter or citation'." We have now therefore to apply 
the proper interpretation to the separate terms of this enactment. 
7. The Senate says: "Whereas, before such portion of the goods 
as fell to the State were sued for by the Treasury" etc. What took 
place was that portions which escheated to the State were sued 
for by the Treasury, but if the demand had been for the whole 
inheritance, the decree of the senate would apply equally, and if it 
were a case of unclaimed property being sued for by the Treasury, 
or goods which came to it on any other title, 8. still the decree of 
the senate would apply, and it would be the same thing if the claim 
were made by a municipality. 9. Moreover no one doubts that 
where the petitio is brought by a private person, the decree of the 
senate will apply equally, although it was made with reference to a 
demand of the State. 10. It may be added that the decree is not 
put in force solely with reference to inheritances, it is applied 
equally to upccidium castrense or any other collective unit of 
property {umversitas). 11. As for the words "the petitio heredi- 
tatis must be deemed to have been brought so soon" etc.: this 
means so soon only as the party knows that the inheritance is being 
demanded of him at law, because, the moment he knows this he 
becomes at once a mala fide possessor. "That is, so soon as it is 
notified to him" etc.: suppose however he knows that the suit is 
being brought, but still nobody notified it to him, will he from that 
time be chargeable with interest on money realized by sale of the 
goods ? I shoidd say that he will, because from tliat time he is a 
mala fide possessor. Let us suppose on the other hand that the 
notification was made, but the party does not know, because notice 
was given not to himself but to his procurator. Then, as the 
senate required that notification should be given to the party 



TIT. mj Action for recovery of inheritance 347 

himself, it will not aifect him, unless indeed the person to whom it 
was given informed him, but [it will] not [affect him] where, though 
he was able to inform him, he omitted to do so. As to the question 
who the person must be by whom the notification is given, the 
senate lays down no rule on the subject ; accordingly the notice 
will be effectual whoever it is that gives it. 12. The above relates 
to the case of bonafde possessors, as the words of the decree are 
"those persons who deemed themselves the heirs"; where however 
a man sells an inheritance which he knows does not belong to him, 
then, beyond all doubt, what is demandable in the petitio 
hereditatis is not the purchase money of the things sold, but the 
things tiiemselves and the mesne profits of the same. However 
the Emperor Severus in a letter to Celer is clearly shown to have 
applied the rule to mala fide possessors as well, though the decree 
of the Senate only mentions those who deem tiiemselves heirs ; 
(unless indeed we assume the words [of Severus] to refer to such 
things as it was desirable to sell because they were a burden rather 
than a profit to tlie inheritance ;) the result being to leave it in 
the power of the applicant to choose what sort of charge he will 
make on the mala fide possessor, i.e. whether he will charge him 
with the thing itself and the profits or with the purchase money 
and interest from the date of the action being brought. 13. The 
senate speaks of persons who deem themselves to be heirs ; if 
however they deem themselves to be honorum x^ossessores or lawful 
successors of any other kind, or aver that the inheritance has been 
handed over to them [in pursuance of a fideicommissum], they 
will be in the same position. 14. Papinianus says however 
(Questions b. 3) that if the possessor of an inheritance leaves un- 
touched money which was found among the heritable effects of the 
deceased, he can by no means be sued for interest. 15. The decree 
says interest " on the purchase money received as the price of the 
things sold." We must understand by purchase money received 
not merely money got in already, but money which might have 
been got in though it never was. 16. How if the possessor sell 
things after the petitio hereditatis has been brought ? In such a 
case the things themselves and the mesne profits will be comprised 
in the petitio. Should they however be things of such a kind that 
they could yield no profits or were liable to perish by lapse of 
time, but they were sold at their full value, perhaps the plaintiff in 
the petitio may elect to have the purcliase money handed over with 
interest. 17- The decree proceeds : — "We hold that if judgment 
were given against those persons who were defendants to the 



348 Action f 07' recovery of inheritance [book v 

petitio herecUtatls, they would be bound to pay over the purchase 
money which came to their hands as the price of any objects 
included in the inheritance which were sold, even though such 
objects M ere destroyed or damaged before thejyetltio hereditatis was 
brought." If it is a bona fide possessor who sells things belonging 
to the inheritance, whether he received the purchase money or not, 
as [at least] he has a right of action for it, he will be bound to 
make good the amount to the applicant ; however, where he has a 
right of action, it will be enough to assign such right. 18. If the 
possessor sold something, and the true owner afterwards got judg- 
ment to recover it, whereupon the possessor restored the price he 
received for it, the money cannot be said to have come to his hands ; 
though indeed it might be said that at the outset the purchase 
money is not comprised in the 'petitio^ because the thing sold was 
not part of the inheritance ; however although what is mentioned 
in the decree of the senate is not the sale of things which form 
part of the inheritance but tlie sale of things out of the inherit- 
ance, still he need not pay over this money, as nothing is left in 
his hands. In fact Julianus himself {Big. b. 6) tells us that the 
possessor will not have to make good to the applicant money 
received by him which was not really due, nor on the other hand 
can he credit himself with any money that he paid which was not 
owing. 1 9. Again, if some article has been returned [by a purchaser 
from the possessor] by way of redhibition, then, no doubt, it is 
part of the inheritance, and the purchase money which was refunded 
will not be comprised in the i^etitio hereditatis. 20. Add that 
if the possessor of the inheritance is bound to the purchaser in 
pursuance of the contract of sale, his case must be held to be 
sufficiently provided for by [the petitioner's] undertaking. 21. But 
the possessor is bound to hand over the purchase money for things 
sold, even where the things themselves are destroyed or lost. Here 
this question arises : is he bound to hand over the money only 
where he is possessor in good faith, or equally where he was such 
in bad faith ? As to this, if the things are still in existence in the 
hands of the purchaser, and are not destroyed or lost, then, no 
doubt, a mala fide possessor is bound to hand over the actual 
things, or, if he cannot possibly recover them from the purchaser, 
he must pay damages to the amount assessed by the plaintiif on 
oath at the trial. But, where the things are destroyed or lost, 
the actual value ought to be given, because if the plaintiff had got 
the thing itself, he could have sold it, and then he would not have 
failed to set the actual value. 



TIT. Ill] Action for recovery of mheritance 349 

21 Gaius {on the provincial Edict 6) A thing is regarded as 
destroyed {deperditum) when it has ceased to exist in this world • 
it is lost (deminntimi) if is it acquired by some one else by uszts, 
and has so been taken out of the inheritance. 

22 Paulus {on the Edict 20) If the bona fide possessor has 
[now] got both the thing and the purchase money, for instance, 
because he bought the thing back, will he be allowed to say that 
he would rather give up the thing, and not the purchase money ? 
In the case of a depredator the rule laid down is that it is the 
plaintiff who should be allowed to elect ; must we rather say here 
that the possessor in question has a good right to be heard, if he 
desires to hand over the thing itself, though deteriorated, but the 
plaintiff in the petitio hereditatis, if he desires to have the purchase 
money, will be refused a hearing, on the ground that this last is an 
unconscionable demand, or must we say that, as the purchaser is 
the richer by something contained in the inheritance, he ought to 
hand over along Mith the thing so much of the purchase money as 
is in excess of the present value ? This is a point to consider. In 
an address of the Divine Hadrian we find this passage : — " You 
must consider, conscript fathers, whether it is not the fairest rule 
that the possessor should not make a profit, but should give up 
the price Avhich he received for another man's goods, as it may be 
held that the purchase money received for the thing sold, where 
such thing formed part of the estate of the deceased, takes the 
place of the thing itself, and has in a certain sense become a portion 
of such estate." Accordingly the possessor will be bound to give 
up to the plaintiff both the thing itself and the profit he made by 
the sale of it. 

23 Ulpianus {on the Edict 15) It is a fair question whether 
the bona fide possessor will be bound to give up the purchase 
money in all cases, or only where he is the richer by it ; suppose, 
for instance, after receiving the money, he lost it or spent it or 
gave it away. As to the expression "came to their hands," it is 
doubtful whether it only refers to what there was at the outset, 
or the phrase applies equally to what remains; but I should 
say [that it must refer to what remains, on account of ^] the next 
clause in the decree (though that is ambiguous too), so that no 
demand can be made except where the party is enriched. 1. Ac- 
cordingly, if what comes to the possessor's hands is not the 
purchase money alone, but a penalty too, in consequence of the 

1 Cf. M. 



350 Action for recovery of inheritance [book v 

money being in arrears when paid, it may be said that this was 
comprised as well, as the party is enriched to that full extent ; 
although the decree of the senate only mentioned the purchase 
money. 

24 Paulus {on the Edict 20) Where the possessor is turned 
out by force, he is not bound to hand over a penalty which became 
due to him thereon, that being a thing to which the plaintiff has 
no right. On the same principle he is not bound to hand over a 
penal sum which some defendant to an action promised to pay him 
in case he should fail to appear at the trial. 

25 Ulpianus {on the Edict 15) Again if he sold part of the 
inheritance Avith a lex commissoria (an agreement avoiding the 
sale on non-payment), it must be said, in accordance with the 
above, that he will have to hand over any gain he made in con- 
sequence of such agreement. 1. Moreover, if he sold anything 
and bought something else Avith the purchase money, the petitio 
hereditatis Avill comprise the purchase money, not the thing of 
which he acquired the OAvnership. If the thing [Avliich he bought] 
is Avorth less than the sum for which it Avas bought, he Avill be 
regarded as enriched to the extent only of the value of the thing ; 
on the principle on Avhich, if he had consumed the thing [to any 
extent], he Avould not be regarded as enriched to the extent of its 
full value. 2. AVhere the decree says " Avhere any persons should 
have laid hands on the goods of the deceased, knoAving that they 
did not belong to them, even though they contrived before joinder 
of issue to avoid being in possession of them, judgment ought to 
be passed upon them just as much as if they were in possession," 
these Avords must be taken to imply that past dolus as Avell as 
present is to be brought into account in the petitio hei'editatis, 
and, in fact, culpa (negligence) too. Consequently the proceedings 
can be brought against a person Avho failed to get in a debt to the 
estate from a third person or even from himself, supposing the 
debt is now extinguished by lapse of time ; that is, at any rate, if 
it was in his poAver to do so. 3. As for the Avords "where any 
persons should have laid hands on the goods," the decree here 
refers to depredators, that is to say, persons who lay hands on the 
goods knoAving that the inheritance does not belong to them, in 
short, having no good ground for taking possession. 4. With 
regard to profits \ it is held that they will have to make good not 
merely what they realized but what they ought to have realized. 

^ del. inquit. M. 



TIT. Ill] Action for recovery of inheritance 351 

5. The decree is referring to the case of a person who lays hold of 
goods belonging to the inheritance having at the outset predatory 
intentions. Where a man however at the outset had some lawful 
ground for taking possession, but afterwards, having become aware 
that the inheritance in no sort belonged to him, thereupon con- 
ducted liimself in predatory fashion, the decree says nothing 
directly about him ; nevertheless I should say that the intention 
of the decree includes this case too ; it makes very little difference 
whether a man acted with malice in respect of the^inheritance from 
the very first or only began to do so later on. 6. With regard to 
the party's knowing that the inheritance does not belong to him, 
is a man held to be in this position simply where he knows the 
facts of the case, or do the words not exclude one who is mis- 
taken about the law^? He may have thought that a testament 
was made m due form when it was really void, or that the 
succession ah intestato was open to him in preference to some 
other agnate who really preceded him. I should say that a man 
IS not a depredator who has no wrong intention, though he should 
be mistaken about the law. 7. The decree proceeds: ''though 
they- contrive before joinder of issue " etc. The reason why these 
words are added is that after joinder of issue, indeed after pro- 
ceedings are begun, every possessor is at once 7nala fide. It is 
true that in the decree of the senate joinder of issue alone is 
referred to, but, in spite of this, as soon as ever proceedings are 
commenced, all possessors are on the same footing and are liable 
as depredators ; and this is the present practice ; as soon as the 
party is challenged he knows from that moment that he is in 
possession of something which does not belong to him ; and 
when a man is a depredator, he will be held liable on the ground 
of dolus even before joinder of issue ; it would be a case of past 
dolus. 8. "Judgment" it proceeds "ought to be passed upon 
them just as much as if they were in possession." This is quite 
right; where a man contrives fraudulently to avoid being in 
possession, he is liable to adverse judgment just as if he were 
in possession. This rule holds equally, whether he contrives 
fraudulently to cease to possess or to avoid taking possession. 
The above clause will apply whether the thing is in the possession 
of some one else or has ceased to exist at all ; hence if some one 
else is possessor, the petitio hereditatis can be brought against 

1 Ad sensum : the text asks whether the words include one who does not 
know the law as well as one who knows the facts, which is absurd, \i factum 
does not include J««?. t 'B.e^id fecerint for fecerit. Cf. M 



852 Action for 7'ecovery of inheritance [book v 

both persons alike, and if the possession passes from one to 
another through a number of persons in succession, they will all 
be held liable. 9. Is it however only the person in possession 
who will have to pay over mesne profits, or is it equally one who 
contrived to avoid being in possession ? As to this, after the decree 
of the senate, we are bound to say that both are liable. 10. The 
above words of the decree allow of an oath being employed in an 
action even against a man who is not in possession, as a plaintiff 
may swear to the amount just as much where the defendant con- 
trived to avoid being in possession as where he is in possession. 
11. The senate consulted the interests of ho7ia Jlde possessors so 
far as to secure that they should not have to bear the loss to the 
full extent, but only be obliged to pay to the extent to which 
they are enriched. Accordingly, any expenditure which they have 
made out of the inlieritance itself, as by squandering anything or 
losing anything, thinking all the while that they were making away 
with their own property, they will not have to make good. Again, 
if they give anything away, they will not be held to be enriched 
with reference to such property, though they put some one under 
a natural obligation to requite them. No doubt if they have 
received some donation in return, then it must be said that they 
are enriched to the extent of the gift so received ; the case would 
be much the same thing as a kind of exchange. 12. Where a man 
spends his own money more lavishly in consideration of his having 
come in for an inheritance, Marcellus holds {Dig. 6) that he will 
nevertheless have to hand over the estate without any deduction, 
if he has left the inheritance untouched. 13. The same rule holds 
if he borrowed money, as though he were well off, [but] deceived 
himself in the matter. 14. If however he pledged for debt things 
forming part of the inheritance, we may fairly ask whether the 
inheritance is touched even then ; but it can hardly be said that it 
is, as he is personally liable for the debt. 15. So true is it that 
a man is not held liable who is not enriched, that in a case where 
a man [is made heir to half an inheritance and^], thinking himself 
to be sole heir, wastes with no dishonest intent half the estate, 
Marcellus discusses the question {Dig. 4) wiiether he is not free 
from any liability on the ground that what he spent came out of 
what did not belong to him but to his coheirs ; his point being that 
even where a man who is not heir at all wastes all he had in his 
hands, whatever it was, there is no doubt that he is not liable, on 
the ground that he is not the richer. As to the question itself, 

1 Cf. M. 



TIT. in] Action for recovery of mheritance 353 

there being three views suggested, one tlie view first mentioned 
[viz. that the party in question is not liable at all], then a second, 
viz. tliat it may be said that he ought to hand over all that 
remains in his hands, on the ground that what he spent was his 
own share, thirdly the view that the amount lost ought to be 
charged equally on both shares,— Marcellus says that he certainly 
ought to hand over something or other, but he is in doubt whether 
to say that he must hand over the whole or a part. However 
I should say that he is not bound to hand over tlie whole balance 
remaining in his hands, but a moiety thereof. 16. When a man 
has spent part of an inheritance [under the above circumstances], 
will the whole loss ftill on the estate, or will a proportion come out 
of his private property^? Suppose, for instance, the possessor 
drinks up the whole stock of wine belonging to the estate of the 
deceased : will the whole amount be charged on the inheritance, or 
will something be charged to the man's own property ? The latter 
construction would of course imply that he was held to be the 
richer by whatever amount it was he was in the habit of spending 
[on wine] before the inheritance came to him ; so that if he began 
to spend on a more liberal scale in consideration of the inheritance, 
he would not be regarded as the richer to the extent of such 
excess, but he would be so regarded to the extent of his habitual 
outlay ; since granting that [except for the inheritance] he would 
not have spent in such a lavish style, still he would anyway have 
spent something or other on daily meals. The Divine Marcus 
himself, in the case of one Pythodorus, who had been requested 
to hand over so much of the inheritance as might remain in his 
hands, decided that as to things which had been disposed of with- 
out any design of diminishing the fideicommissary gift and the 
price of which had not gone to augment Pythodorus's private 
estate, the loss must fall both on his private estate and on the 
inheritance, not on the inheritance alone. Consequently in the 
above case it will be a point to consider whether the possessor's 
usual outlay is to come out of the inheritance in accordance with 
the rescript of the Divine Marcus, or out of his own pocket alone, 
and the better opinion is that those expenses must come out of his 
own pocket which he would have incurred even if he had not been 
heir. 17. Again, if the bona Jide possessor has made a sale and 
is not the richer by the purchase money, can the plaintiff in the 
petitio hereditatis recover the separate articles from the purchaser, 
assuming that they have not been acquired by tisus 'i and, if he 
^ Read patrimonio for patrimonii. Cf. M. et seq. 
M. J. 23 



354 Actio7i for recovery of inheritance [book v 

attempts to do so, is he not liable to be barred by an exceptio 
such as this: — "so far as the question of heirship would not be 
prejudged as between the plaintiflF and the [defendant's] vendor," 
on the gi'ound that the jMtitio hereditatis cannot be held to 
comprise the purchase money of the things in question, although 
the purchaser, if the case goes against him, has a claim to recoup 
himself at the expense of the vendor. To this I should say that 
the thing can be recovered, unless the jyurchaser can come down 
upon the bona fide possessor^. How will it be however if the party 
who sold is prepared to defend the case on the petitio so as to let 
himself be sued as though he were in possession ? In this case 
an exceptio would at once be admissible on the part of the 
purchaser. There is no doubt that if the things were sold for a 
small price and the plaintiflF in the petitio recovers the money, 
whatever the amount, then much more may it be said that there 
is a good exceptio against him [on the part of the purchaser] ; 
since the law is, so Julianus informs us (Dig. b. 4), that Avhere 
the possessor pays the plaintiflP in the petitio the money which 
he has himself got in from debtors to the estate, these latter are 
discharged, whether the party who got the debts in was a bona 
fide possessor or a depredator, and they are discharged directly 
{ipso jure). 18. A petitio hereditatis, though it is an action in 
rem, still is a means of enforcing some personal performances, 
for instance, the payment of money received from debtors, also 
the purchase money of things sold. 1 9. The above decree of the 
senate, though it was made in aid of the petitio hereditatis is 
held to be applicable to the action familiee erciscundw, else we 
should have this absurdity that there might in respect of the same 
thing be an action to recover it but not an action to divide it, 
20. The young of flocks and cattle go to increase the inherit- 
ance ; 

26 Paulus {on the Edict 20) and if lambs are born, and after- 
wards others born of the first, the latter also must be handed over 
as an accretion to the estate. 

27 Ulpianus {on the Edict 15) The children of female slaves 
and the children of their female children are not regarded as profits, 
because it is not a usual thing for female slaves to be procured with 
a view to the breeding of children, still such children go to increase 
the inheritance ; and there is no doubt, seeing that they all fall 
into the estate, that the possessor is bound to hand them over, 

1 Perhaps interpolated. Cf. M. 



TIT. m] Action for recovery of inheritance 355 

supposing that he is in possession of them, or that, after the 
pernio was brought, he fraudulently contrived to avoid being in 
possession. 1 Again, rents which are collected from lessees of 
buildnigs will be comprised in the petltlo hereditatis, even where 
the tenement leased is a brothel : there are brothels kept on the 
estates ot a great many respectable proprietors : 

28 Paulus {on the Edict 20) and after the decree of the senate 
we ai-e bound to hold that every kind of gain can be taken over 
Dotli trom bonajide possessors and depredators. 

29 Ulpianus {on the Edict 15) Any consideration paid by 
agricultural tenants is treated as profits. Money received for the 
services of slaves is in the same case as rents are, and so are 
payments taken for the hire of ships or of horses. 

30 Paulus {on the Edict 20) Julianus says that the plaintiff 
ought to e ect whether he will claim the principal sum simply or 
the interest too, taking an assignment of the right of action at his 
own risk However according to that we shall be varying the 
practice from what the senate intended ; which was that iXmhona 

fide possessor should be liable to the extent to which he was 
enriched; and how if the plaintiff were to elect to have money 
which tlie defendant had been unable to keep? The proper rule 
therefore is, in the case oi^ bona fide possessor, that all that he is 
bound to hand over is either the principal and interest thereon if 
he received any interest, or else, [if he prefers it,] his right of 
action, making an assignment of the same for such amount as is 
still owing him in virtue of such right ; all this at the risk of the 
plaintiff. 

^^ A ,y^^'^^^^^ (^^^ t^'^ ^^^*'c« 15) If the possessor has paid any 
debts, he can set them off, although he will not have directly 
discharged the plaintiff to the petiUo, as a payment which a man 
makes on his own account and not on account of the debtor does 
not discharge the debtor. Accordingly Julianus says {Dig. b. 6) 
that the possessor can only take credit for such payments where he 
undertakes that he will defend^ actions brought against the plaintiff 
to the 2^etitio. Whether it goes as far as this, that even a bona 
fide possessor is bound to undertake that the plaintiff shall be 
defended, is a thing to consider, as he is not enriched in respect of 
what he paid ; unless indeed it so happen that he has a condictio 
to recover it, and so far is the richer, as he can sue to get the 

^ Ins. a before se. Cf. M. 

23—2 



356 Action for recovery of inheritance [book v 

money back ; suppose, for instance, thinking himself to be the 
heir, he paid on his own account. But Julianus seems to me to 
have been thinking only about a depredator when he spoke of his 
giving the above undertaking, and not about a bonafde possessor. 
However the latter will have to assign the [right of] condictio. 
If the plaintiff in the 2yetitio is himself sued by the creditors 
[after the possessor has paid the debts], he will have to plead the 
payment by way of exceptio. 1. If anything was owing [from the 
inheritance] to the depredator himself, he will not be allowed to 
deduct it ; especially if it was a debt only owing by way of natural 
obligation. But how if the plaintiff would benefit by the debt 
being discharged, because it was owing under a penalty, or for 
any other reason? [In that case] it may be held that he [the 
depredator] has paid himself or ought to have done so. 2. But 
a rightful possessor beyond all doubt ought to deduct what is owing 
to him. 3. Just as a possessor may deduct expense which he 
incurred, in the same way, if he ought to have incurred expense 
and did not do so, he must answer for his negligence, unless he is 
a bona fide possessor ; in that case, as he neglected the matter 
because he regarded it as his own affair, there is nothing for which 
he can be sued up to the time when tlie petitio hereditatis is 
brought ; but from that time he is a depredator himself. 4. One 
thing no doubt a depredator cannot be called to account for, viz. 
allowing debtors to be discharged [by lapse of time], or waiting till 
they were too poor to pay, instead of suing them at once, the fact 
being that he had no right of action. 5. It is worth considering 
whether the possessor is bound to hand over what has been paid 
him ; but whether he was a bona fide possessor or not, it is held 
that he ought to hand it over, and that, if he does hand it over, 
as Cassius tells us and Julianus too (b. 6), this is a direct discharge 
to the debtors. 

32 Paulus {on the Edict 20) Things acquired through a slave 
must be handed over to the heir ; (the same principle is followed 
both in the case of the inheritance of a freedman and in that of 
proceedings on an inofficious testament ; where, for the time being, 
the slave belongs to the heir,) 

33 Ulpianus {on the Edict 15) unless the slave made [the 
acquisition through] a stipulation founded on the property of {ex re) 
such heir. 1. Julianus tells us that, if the jwssessor has sold a 
slave, then, where the slave was not required for purposes con- 
nected with the inheritance, he can be called upon in the j^etitio 



TIT. Ill] Action for recovery of inheritance 357 

hereditatis to hand over the purchase money ; as, in fact, he would 
have been debited with it, if he had not sold him ; but, where 
the slave was so required, the slave himself must be lianded over, 
if he is living, tiiougli, if he is dead, perhaps not even the purchase 
money ; however Julianus tells us that the judge who hears the 
case will not allow the possessor to put the purchase money in his 
pocket, and this is the better opinion. 

34 Paulus (on the Edict 20) I should say that, where the 
inheritance of a fiUusfamilias who is a soldier comes to any one 
by testament, it may be sued for by a petitlo hereditatis. 1 . Where 
a slave or a filinsfamilias has got in his hands things which are 
part of an inheritance, the 2:>etitio hereditatis can be brought against 
the owner or the paterfamilias [as the case may be,] if it is in his 
power to hand the things over. At any rate, if the owner has got 
the purchase money of things forming part of the inheritance as 
part of the slave's jiemdium, then, in Julianus's own opinion, the 
2oetitio can be brought against the owner, this latter being regarded 
as in possession of a right. 

35 Gaius {on the provincial Edict 6) Julianus also says that 
^petitio hereditatis can be brought against the owner, as being in 
possession of a right, even where the slave has not yet received the 
purchase money for things sold, on the ground that the owner has 
a right of action by means of which he can get the money, which 
right of action a person may very well acquire without knowing it. 

36 Paulus {on the Edict 20) Where the petitio hereditatis 
is brought against an owner or a father who is in possession of 
purchase money, ought the proceedings to be taken within a year 
after the death of the son or the slave, or the manumission of the 
slave or the emancipation of the son ? again, can the owner or the 
father deduct what is owing to himself? Julianus says that the 
better opinion is,— and Proculus lays down the same rule,— that 
the action is subject to no limitation in point of time, and that the 
defendant's own debt cannot be deducted, as it is not a case of an 
action depeculio, but of ^ petit io hereditatis. This is perfectly sound 
where the slave or the son has got the purchase money ; but if the 
reason why the petitio hereditatis is brought against the owner is 
that the debtor was a slave, the matter ought to be treated as 
though it were a case of an action de jyeculio. According to 
Mauricianus, the rule is the same, even where the slave or the son 
wastes the money which he makes by the price, but it can be paid 
some way or other out of the pecidium. 1. But there is no doubt 



358 Action for recovery of inheritance [book v 

that the petitio can equally well be brought directly against a 
filiusfarnilias, since he has it in his power to hand the property 
over, just as he has to produce it if sued ad eschibenclum. Much 
more is it held tliat the petitio can be brought against a filiits- 
familias who, when he was a paterfamilias and in possession of 
the inheritance, gave himself in arrogation. 2. If the possessor 
kills a slave who is part of the inheritance, the petitio heredltatis 
will comprise a demand on that head : Pomponius however says 
that the plaintiff is bound to choose whether he would like judg- 
ment to be given in his favour against the possessor, he himself 
giving an undertaking that he will not proceed on the lex Aquilia, 
or he would prefer to reserve full right of action on the lex Aquilia, 
and forbear to have the damage in question ascertained by the 
judge [on the hearing of the petitio]. This right of election exists 
where the slave was killed before entry was made on the inherit- 
ance ; if it was done afterwards, then the right of action becomes 
the heir's personal right, and it is not comprised in the j^^titio 
hereditatis. 3. If a depredator discontinues possession craftily, and 
the thing is destroyed in some way in which it would have equally 
been destroyed if he had continued in possession on the same 
footing as before, then, looking at the actual words of the decree 
of the senate, the depredator is in a better legal position than the 
bonafde possessor, because where a depredator craftily discontinues 
possession, the same order is made upon him as if he were still in 
possession, and the decree does not go on to say [what is to 
happen^] if the thing is destroyed. At the same time there is no 
doubt that the depredator ought not to be in a better position than 
a honajide possessor. According to this it must be added that, if 
the thing is sold for more than it is worth, the plaintiff ought to be 
at liberty to elect to take the purchase money ; otherwise the 
depredator will make a profit. 4. There is some doubt on the 
question to what moment the enrichment of the bona fide possessor 
refers ; but, on the whole, the true view is that it is the time when 
judgment is given. 5. In speaking of profits, the cost is supposed 
to be deducted which is incurred for the purpose of producing, 
collecting and preserving the profits themselves : this is absolutely 
required on principles of natural justice not only in the case of 
bona fide possessors, but even of depredators, as Sabinus himself 
holds. 

37 Ulpianus {on the Edict 15) Where the party has made an 

1 V. M. 



TIT. m] Action for recovery of mheritance 359 

outlay, but realized no profits, it is perfectly just that even then 
the outlay should be allowed for in the case of bona fide possessors. 

Paulus {on the Edict 20) It is held, no doubt, with reference 
to necessary and useful expenditure in general that the two can be 
estimated separately, so that bona fide possessors should be credited 
with the latter as well, but a depredator has only himself to blame, 
if he chose with his eyes open to lay out money on another man's 
property. However it is more liberal, even in the case of this last, 
that his outlay should be taken into account, (after all, the plaintifi" 
ought not to make a profit out of another man's loss,) and it will 
be part of the judge's duty to make this allowance as a matter 
of course ; in fact, no exceptio on the ground of dolus malus is 
required. There may, no doubt, be this difference between the 
bona fide and the mala fide possessor in the matter, that the former 
can deduct his outlay at all events, though the subject matter on 
which it was made has ceased to exist, just as a guardian or curator 
has his expenses allowed, but a depredator can only make the 
deduction where the subject matter is improved by the outlay. 

Gaius {on the provincial Edict 6) Expenditure is held both 
useful and necessary where it is incurred for the repair of buildings, or 
for plantations of young trees, or in cases in which damages assessed 
in a [noxal] action are paid in respect of a slave, because it is more 
worth while to make such payment than to surrender the slave 
himself ; and it is manifest that there must be a great many other 
occasions of outlay of the same kind. 1. It may however be 
reasonably considered whether a man has not just as good an 
exceptio doli in respect of an outlay on pictures and sculptures and 
other objets de luxe, that is, so long as he is a bona fide possessor; 
of course, a depredator may very properly be told that he ought 
not to have gone into unnecessary expense on another man's 
property ; provided it is always open to him to take away whatever 
can be removed without injury to the property. 

Paulus {on the Edict 20) It may be added that the provision 
in the address of the Divine Hadrian to the effect that when the 
parties are at issue there ought to be made good to the plaintiff" 
whatever he would have had, if the inheritance had been handed 
over to him at the time of the action being brought, sometimes acts 
oppressively. Suppose, for instance, after joinder of issue, slaves 
or horses or cattle die : in such a case, according to the words of 
the enactment, the possessor will be ordered to make good the 
deficiency, because, if the inheritance had been handed over, the 



360 Action for recovery of inheritance [book v 

plaintiff could have sold them. The order would, according to 
Proculus, be perfectly right in a case where the petitio is brought 
to recover a specific thing ; but Cassius holds otherwise. Where 
the possessor is a depredator, the opinion of Proculus is sound, 
but Cassius is right where the possession is honajide ; as a possessor 
is not bound to guarantee the plaintiflf against the event of death, 
or from fear of such a mishap to leave his own claim undefended 
without more. 1. A depredator does not acquire a right to mesne 
profits, they go with the estate; consequently he must in fact make 
good the profits derived from such profits. But, in the case of a 
hona fide possessor, those profits only will be comprised in the 
order for handing over the inheritance, as an increment thereof, 
by which the possessor has become the richer. 2. If the possessor 
has acquired any rights of action, he must assign them, if the 
inheritance is recovered from him; for instance where he is entitled 
to an hiterdictum iinde vi, or has granted property in jjrecarium. 
Add, to take a converse case, that if the possessor has given an 
undertaking against damnum ivifectum, the plaintiff" must undertake 
to indemnify him. 3. Noxal actions too come Avithiu the scope 
of the judge's duty, so that, if the possessor is prepared to surrender 
for 7ioxa a slave who has done any damage to something which is 
part of the inheritance, or has committed a theft in respect of it, 
he will be discharged, on the principle of the rule applied in the case 
of the interdict quod vi aut clam. 

41 Gaius {on the provincial Edict 6) If, at the time when the 
possessor of the inheritance was sued, the things which he had in 
his possession were somewhat few in number, but he afterwards 
took into possession some others besides, he will, if the application 
is successful, have to hand over these as well, whether he acquired 
the possession after or before the joinder of issue : and if the 
sureties he found are not sufficient for the whole matter at stake, 
the proconsul must call upon him to give suitable security. If, to 
take the converse case, he comes afterwards to be in possession of 
fewer things than he possessed originally, provided this happens 
without any craft of his own, the case against him must fail as far 
as those things are concerned which he ceases to possess.. 1. Ac- 
cording to Julianus, the possessor must include in what he brings 
into account the mesne profits derived from such things as the 
deceased had in his hands as pledges for debt. 

42 Ulpianus ipn the Edict Q7) If a debtor to the inheritance 
declines to pay, not because he claims to be heir himself, but 



TIT. Ill] Action for recovery of inheritance 361 

because he denies, or hesitates to admit, that the inheritance belongs 
to the person who sues to recover it, he is not liable to the petitio 
hereditatis. 

J Paulus (on Plautius 2) I first accepted a legacy from you, 
and then sued to recover the inheritance. According to Atilicinus, 
some authorities have been of opinion that I cannot have a jjetltio 
hereditatis against you without refunding the legacy. It is however 
worth considering whether the rule is not that tlie party who sues 
for the inheritance is only obliged to restore the legacy on the 
terms of an undertaking being given him tliat if the suit for the 
inheritance is decided against him, it shall be paid him again ; as 
it is unjust that the possessor of the inheritance should in such 
a case keep in his hands a legacy which he once paid, especially 
where the other party did not sue for the inheritance vexatiously, 
but owing to a mistake ; and this view is supported by Lrelius. 
However the Emperor Antoninus laid down in a rescript that where 
a man has put in his pocket a legacy under the testament, the suit 
for the inheritance ought, on cause shown, to be refused him, that 
is, if it is a plain case of vexatious proceedings. 

t Javolenus {Extracts f7'07ii Plautius 1) Where a man sues 
for the inheritance after accepting a legacy under the testament, 
then, if by any means whatever the legacy is not returned, it is 
part of the duty of the judge as a matter of course to see that, if 
the suit is successful, the inheritance shall be handed over to the 
plaintiff*, less the amount he received. 

I Celsus {Digest 4) Where a man volunteers to defend a case 
without having the thing demanded in his possession, judgment 
will be given against him, unless he can show by the clearest possible 
proofs that the plaintiff knew from the very commencement of the 
case that he had nothing in his possession ; because then the 
plaintiff was not deceived, moreover the party who volunteered to 
defend the suit is liable under the clause referring to dolus : of 
course the measure of damages will be the interest the plaintiff had 
in not being deceived. 

46 MoDESTiNUS {Differences 6) Any man will be considered as 
practically a depredator who gives a tacit assurance [to a testator] 
that he will hand over the inheritance to some one who is not en- 
titled to take it. 

47 The same {Responsa 8) One Lucius Titius having been un- 
successful in an application to have the testament of a kinsman set 



362 Action for recovery of inheritance [book v 

aside as forged, I wish to know whether he can have a good right 
to impeach the testament as not validly made and not sealed. The 
answer given was that he was not debarred from raising the issue 
whether the testament was validly made merely because he was 
unsuccessful in the application to have it set aside as not genuine. 

48 Javolenus {Extracts from Cassius 3) In estimating the value 
of an inheritance, the purchase money realized on a sale of it is 
to be taken into account, with the addition of whatever further 
sum the inheritance was worth, where it was sold with a view to 
business ; but, if it was sold in pursuance of a fdeicommissum, 
nothing more will be comprised than what the possessor received 
in good faith. 

49 Papinianus (Questions 3) If a ho7ia fde possessor chooses 
to proceed against debtors to the inheritance or persons in occupa- 
tion of property forming part of the estate, he has a right to be 
heard, at any rate where there is a danger lest rights of action 
should be lost by lapse of time. But a man who is bringing the 
petitio will have no reason to fear being barred by an exceptio if he 
brings an action in rem; suppose, for instance, the possessor of 
the inheritance should be remiss in the matter, or suppose he 
should know that he has no legal claim. 

50 The same {Questions 6) An inheritance may have an ex- 
istence in the eye of the law, though it is not a corporeal thing. 
1. If a bona file possessor erects a monument to the deceased in 
order thereby to fulfil a condition, then, inasmuch as the will of 
the deceased ought to be observed in this matter as well as in 
others, it may be said, at any rate where the cost of making the 
monument does not exceed reasonable limits, or does not go 
beyond the amount directed by the testator, that the person from 
whom the inheritance is recovered will either have a right exer- 
ciseable by means of an exceptio^ doli to retain the amount of his 
outlay, or else an action of negotia gesta to recover it, in short an 
action for " managing the affair " of the inheritance ; for, true as it 
is that in strict law there is no right of action to compel heirs to 
erect monuments, nevertheless they may be constrained by imperial 
or pontifical authority to follow out the testator's last will. 

51 The same (Responsa 2) The heir of a lunatic will have to 
make good to the substitute or to a kinsman in the next degree the 
profits for the time intervening by which the lunatic appears to 

^ Read exceptionis for exceptione. Cuj. cf. M. 



TIT. in] Action for recovery of inheritance 363 

have become the richer through his curator; except, of course, 
such expenditure incurred about the substance of the estate as 
was either necessary or useful. Moreover if any necessary expense 
was incurred on the lunatic's own behalf, this will be likewise 
excepted, unless the lunatic had other sufficient means by which he 
could be maintained. 1. No interest is due on profits received after 
the suit to recover the inheritance was brought ; a diflferent principle 
is applied in the case of those which were received before such pro- 
ceedings were begun and so fell into the inheritance. 

52 Hermogenianus {Epitomes of law 2) If a possessor has 
received immoral profits {inlionestos questus) from an inheritance, 
he wdll have to hand over these as well, otherwise a scrupulous 
construction will give the possessor the benefit of unscrupulous 
gain. 

53 Paulus {on Sabimis 10) A possessor's disposition of property 
is necessary not merely where it is to pay debts owed by the 
inheritance, but also where it is to provide for the case of any 
necessary outlay which he has made on something which is part of 
the inheritance, or for the case of something being likely to be lost 
or injured by lapse of time. 

54 JuLiANUS {Digest 6) Where a man purchases from the fiscus 
either shares in an inheritance or the whole estate, it is not unjust 
that he should be allowed an action by which to sue for the whole 
of the property, just as a petitio hereditatis is allowed to one to 
whom an inheritance is handed over under the Trebellian decree of 
the senate. 1. There is no question that the heir of a debtor can by 
means of a hereditatis petitio get into his hands objects pledged by 
the deceased as security for debt. 2. If buildings and lands have 
been alloAved to deteriorate by the negligence of the j)Ossessors, for 
example, vineyards, orchards or gardens have been cultivated in 
some way which is not in accordance with the habits of the de- 
ceased proprietor, the possessors must submit to have damages 
assessed in the trial corresponding to the deterioration which the 
property has undergone thereby. 

55 The same {Digest 60) When an inheritance is recovered by 
action from a hona Jide possessor, he will have to hand over what 
he may have received under the lex Aquilia not merely to the 
extent of the simple amount of the injury, but to that of double 
damages ; as he has no right to make a gain out of what he receives 
on account of the estate. 



364 Action for recovery of inheritance [book v 

56 Africanus {Questions 4) In a hereditatis petltio any profits 
received by the possessor will have to be handed over at all events, 
even where the plaintiff himself would not have received them. 

57 Neratius {Parchments 7) If the same person defends two 
suits for the same inheritance against two plaintiffs [respectively], 
and judgment is given in favour of one of the two, the question is 
sometimes asked whether the inheritance ought to be given up to 
the successful suitor, exactly as would have been required if the 
defendant had not had to sustain a suit on the part of the other ; 
so that, in sliort, supposing judgment should be subsequently given 
for the other suitor as well, the defendant would be discharged, on 
the ground that he neither was in possession nor had used any 
fraudulent contrivance to avoid being in possession of the property, 
having given it up upon judgment being given against him ; or 
the rule rather is that, since it was always possible that the 
second suitor too woul