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the ppesence of this Book 



thej.m. kelly 
has Been made possiBle 
thpouqh the qeneposity 



Stephen B. Roman 

From the Library of Daniel Binchy 



GAI 
INSTITVTIONES 



OR 



INSTITUTES OF ROMAN LAW 
BY GAIUS 



WITH A TRANSLATION AND COMMENTARY 

BY THE LATE 

EDWARD POSTE, M.A. 

FOURTH EDITION, REVISED AND ENLARGED BY 

E. A. WHITTUCK, M.A., B.C.L. 



WITH AN HISTORICAL INTRODUCTION BY 

A. H. J. GREENIDGE, D.Lrrr. 



OXFORD 
AT THE CLARENDON PRESS 

MDCCCCIV 



HENRY FROWDE, M.A. 

PUBLISHER TO THE UNIVERSITY OF OXFORD 

LONDON, EDINBURGH 

NEW YORK 




PREFACE 

THE death of the author of this Commentary and Translation 
has taken from us one who in the intervals allowed him by 
his official duties gave himself with single-minded devotion to 
the acquisition and furtherance of knowledge. ' Omnium, quos 
cognovi, doctissimus ' were the words in which Mr. Poste's great 
erudition was commemorated by the Vice-Chancellor of the 
University, the distinguished head of the distinguished College 
of which Mr. Poste was almost the senior Fellow ; and certainly 
no one can read this Commentary without being impressed 
by the writer's philosophic spirit and extensive learning. It 
is especially remarkable that a scholar, who was never engaged 
in the teaching or practice of law, should have produced 
a legal textbook, which perhaps more than any other makes 
intelligible to English students the teaching of the great German 
masters of Roman jurisprudence and at the same time never fails 
.to be interesting by reason of its own force and individuality. 

In re-editing this well-known work, at the request of Mr. Poste's 
executors and of the Delegates of the Clarendon Press, my 
endeavour has been to preserve as far as possible the character 
which Mr. Poste himself gave it, while making such alterations 
as seemed to be required at the present time. As Mr. Poste 
never revised his Translation and Commentary with any com- 
pleteness since they were first published, their revision for this 
edition has been a more considerable undertaking than would 
otherwise have been the case. ' It should be noticed that the 
part of the Commentary relating to analytic jurisprudence has 
been much curtailed in the present edition. This has been done 
by the advice of persons engaged in the teaching of Roman 
law at Oxford, who are of opinion that the insertion of so much 
matter bearing on the general theory of law has rendered the 
Commentary unnecessarily difficult to students and that the 
subject is one better left to independent treatises. The omission 
of the Preliminary Definitions on this account has made it 
possible to introduce into the book an Historical Introduction 
to Gaius, which has been written by Dr. Greenidge, who is well 



ii PREFACE 

known for his writings on Roman constitutional history, and for 
his special Treatises on ' Infamia ' and on ' The Legal Procedure 
of Cicero's Time.' 

The text of Gaius adopted is that of the last edition of Krueger 
and Studemund, which its German proprietors have again most 
kindly allowed us to use. In this text the numerous lacunae 
are only filled up, where from passages in the Institutes or other 
sources the missing words may be inferred, at least with a very 
high degree of probability. Some other conjectural readings, 
more or less followed in the Translation, will be found in the 
Appendix. It is to be hoped that in some future edition of 
this book a Critical Apparatus may be supplied by a competent 
hand. In the meantime the student should more especially refer 
to the notes on the text appended to Krueger's and Studemund's 
Gaius. He may also consult with advantage the notes to the 
late Professor Muirhead's edition of Gaius, though the valuable 
textual criticism to be found there requires revision in the light 
of more recent research. 

In conclusion, I have to express my obligations to my old 
friend and pupil Mr. Ledlie, the translator of Sohm's Institutes, 
for many helpful suggestions. Another old friend and pupil, 
Dr. Potts, has also rendered me valuable aid, especially in the 
preparation of the Index and of the Chronological Table. My 
friends Dr. Schuster and Dr. Greenidge have given me useful 
information on several points about which I have consulted 
them. 

E. A. WHITTUCK. 

CLAVERTON MANOR, BATH, 
October 17, 1904. 



CONTENTS 



HISTORICAL INTRODUCTION .... 

BOOK I 
STATUS OR UNEQUAL RIGHTS [DE PERSONIS] 



PAGE 

ix-lv 



SECTION 

1-7 



9-12 



13-47 

48-50 

51-54 

55-107 

108-1156 

116-123 

124-141 



142-196 
197-200 



SOURCES OR ORIGINS of law, or various ORGANS of 
legislation. CIVIL law, and NATURAL law . . . 1-13 

DIVISIONS OF LAW 13-18 

The subjects of the Civil Code are 

(1) UNEQUAL RIGHTS (PERSONAE, Book I) ; 

(2) EQUAL RIGHTS (RES, Books II and III) ; 

(3) PROCEDURE (ACTIONES, Book IV). 

STATUS or INEQUALITY of rights divides the members 
of society into nine classes : the Freeborn, the Freedman, 
the Slave ; the Citizen, the Latin, the Alien ; the Father of 
the household, the Son of the household, the Bondsman . 18-20 

FREEDMEN .... .... 20-35 

Dependent and Independent Persons 35 

SLAVES . it 36-39 

PATERNAL POWER, the modes in which it originates . 39-66 

MARITAL POWER, the modes in which it originates . . 66-73 

BONDAGE, the mode in which it originates .... 74-78 

Modes in which PATERNAL POWER, MARITAL POWER, 
and BONDAGE are terminated 78-87 

INEQUALITIES among those who are INDEPENDENT 
(Fathers of their household). 

GUARDIANSHIP, classes and modes in which it originates 

and terminates 87-113 

CURATORS . 114-116 



IV 



CONTENTS 



SECTION 



BOOK II 
EQUAL RIGHTS [DE REBVS]. 

PAGE 

EQUAL EIGHTS are 

(1) SINGLE (RES SINGVLAE); 

(2) COLLECTIVE (IVRVM VNIVERSITATES). 

Single rights are 

(1) REAL (IVS IN REM); 

(2) PERSONAL (IVS IN PERSONAM). 

Real rights are (not to mention PRIMORDIAL rights) 

(1) UNLIMITED (DOMINIVM or OWNERSHIP) ; 

(2) LIMITED (SERVITVS or SERVITUDE). 

SINGLE RIGHTS (RES SINGVLAE), and in the first place 
the REAL RIGHTS of OWNERSHIP and SERVITUDE 
(one branch of RES SINGVLAE). 

Divisions of RES 122-128 

TITLES or facts originative of REAL rights, whether 
OWNERSHIP OR SERVITUDE . . . 128-163, 164-168 

Ownership without power of alienation, and power of alienation 
without ownership 163, 168 

Alienation by WARDS 169-170 

INSTRUMENTS of Acquisition of Real rights . . . 170-175 
COLLECTIVE RIGHTS [IVRVM VNIVERSITATES]. 
The TITLES by which a person is invested with Collective 
rights, in other words, the TITLES of UNIVERSAL 
SUCCESSION, are five, Testamentary disposition, Intestacy, 
Insolvency, Adrogation, and Manus or Marital power . .175 

101-190 WILLS . 176-226 

191-245 LEGACIES. Legacies are Titles to RES SINGVLAE, but 

are introduced in this place as being accessory to WILLS . 226-246 
FIDUCIARY BEQUESTS. 
246-259 COLLECTIVE FIDUCIARY BEQUESTS .... 246-258 

260-289 SINGLE FIDUCIARY BEQUESTS, though examples of 
RES SINGVLAE, are introduced in this place as being 
accessory to Wills 258-268 



1-14 
14a-79 

62-64 

80-85 
86-96 
97-100 



BOOK III 

INTESTACY or title by DESCENT. 
1-38 ORDER of Intestate Succession . 
89-76 Successions to FREEDMEN, testate and intestate . 



269-283 
283-300 



CONTENTS v 

SECTION PAGE 

77-87 Successions by INSOLVENCY, ADEOGATION, MARITAL 

POWER, transfer of Inheritance 301-315 

PERSONAL RIGHTS, or OBLIGATIONS [the other branch 
of RES SINGVLAE], and their TITLES. 

88-162 Obligations founded on CONTRACT 315-387 

163-167 INSTRUMENTS of acquiring Obligation .... 387-389 

168-181 EXTINCTION of Obligation . . 389-401 

182-225 Obligations founded on DELICT 402-431 

ADDENDUM . . - 432-441 



BOOK IV 

PROCEDURE [DE ACTIONIBVS]. 



1-9 CLASSIFICATION of Actions 

10-29 STATUTE-PROCESS or ANCIENT method of Procedure . 

30-38 FORMULARY Procedure, FICTION 

39-68 Component parts of the FORMULA 

69-81 ACTIONS on account of the Contracts and Delicts of others . 

82-87 REPRESENTATION of the principal parties to an action . 

88-102 SECURITIES to be given by the parties to an action 

103-109 STATUTORY actions. 

NON-STATUTORY actions, or actions founded on the executive 
authority of the Praetor ....... 

110-113 PERPETUAL actions, or actions which can be instituted at 
any date from their nativity (in later times within twenty 
or thirty years from their nativity), and TEMPORARY 
actions, or actions that must be instituted within a certain 
date (usually a year) from their nativity. Actions TRANS- 
MISSIBLE or NOT-TRANSMISSIBLE to the heirs of the 
principal parties 

114 Title of defendant subsequent to Li'tis contestatio 

115-137 NEGATION and EXCEPTION, or NULLITY, NULLIFI- 
CATION, COLLISION, of rights 

138-170 INTERDICT and POSSESSION and DETENTION . 

171-187 VEXATIOUS litigation. Actions which carry infamy. Summons 
and security for reappearance 

APPENDIX 



442-454 
454-470 
470-480 
480-515 
515-524 
524-527 
527-534 



534-544 



INDEX 



544-554 
554-555 

555-581 
582-620 

620-623 

629 

633 



EXPLANATION OF ABBREVIATIONS 

Inst. Institutes of Justinian. 

Dig. Digest or Pandects of Justinian. 

Cod. Code of Justinian. 

Nov. Novellae Constitutiones or Novels of Justinian. 

The meaning of the numbers that follow these abbreviations will be obvious 
to any one who opens a volume of the Corpus Juris. 

Pr. stands for principio, meaning, in the first paragraph of a title of the 
Institutes, or of a fragment of a title of the Digest, or of a ' lex ' of a title 
of the Code. 

The Commentaries of Gaius are referred to by numbers indicating the book 
and the paragraph: e.g. 2 5, indicates the 5th paragraph of Book 2. 
When the reference is to another paragraph in the same book, the book 
is omitted. 

When Ulpian or Paulus are quoted, the works referred to are the Ulpiani 
Fragmenta or Excerpta ex Ulpiani Libro singulari Regularum, and the 
Sententiae Receptae of Paulus. 

Fragm. Vat. Fragmenta Juris Romani Vaticana. 

(For the Jus antejustinianum see Huschke's or Krueger's Collections of 
ante-Justinian legal writings.) 

When Savigny, Vangerow, Keller, Bethmann-Hollweg, Ihering, Kuntze, 
Windscheid, Dernburg, Lenel, Sohm, Muirhead, and Robyare simply cited, 
the references are to Savigny, System des heutigen romischen Rechts ; 
Vangerow, Lehrbuch der Pandekten ; Keller, Der rSmische Civilprocess 
und die Actionen ; Bethmann-Hollweg, Der romische Civilprozess ; 
Ihering, Geist des rOmischen Rechts auf den verschiedenen Stufen seiner 
Entwicklung ; Kuntze, Institutionen und Geschichte des romischen 
Rechts ; Windscheid, Lehrbuch des Pandekten-Rechts ; Dernburg, Pan- 
dekten ; Lenel, Das Edictum Perpetuum, ein Versuch zu dessen Wieder- 
herstellung; Sohm, The Institutes A Text-book of the History and 
System of Roman Private Law (translated by J. C. Ledlie), 2nd ed. ; 
Muirhead, Historical Introduction to the Private Law of Rome, 2nd ed. ; 
Roby, Roman Private Law in the times of Cicero and of the Antomnes. 



CHRONOLOGICAL TABLE 



B.C. 

753 Traditional Date of Foundation of 

Home. 

578-535 Servius Tullius. Division into 
thirty Tribes. Military Organi- 
zation of Centuries. Institution 
of Census. 

509 Office of Consuls instituted. 
494 First Secession of Plebs. Institu- 
tion of Tribuni Plebis. 
451-448 Law of the Twelve Tables. 
449 Second Secession of Plebs 

Leges Valeriae Horatiae. 
445 Lex Canuleia, legalizing marriages 
between Patricians and Ple- 
beians. 

443 Censorship established. 
366 Office of Praetor established. 
326 Lex Poetelia about this time. 
304 Cnaeus Flavius publishes forms 
of actions and calendar of dies 
fasti and nefasti. 
300 Lex Ogulnia, admitting Plebeians 

to College of Pontiffs. 
287 Last Secession of Plebs 
Lex Hortensia. 
Lex Aquilia. 

280 Tiberius Coruncanius (subse- 
quently first Plebeian Pontifex 
Maximus), Consul. 
242 First appointment of a Praetor 

Peregrinus about this time. 
204 Lex Cincia. 

198 Sextus Aelius Paetus (earliest 
commentator on the Twelve 
Tables), Consul. 
170-150 Lex Aebutia probably enacted 

within this period. 
169 Lex Voconia. 
105 P. Butilius Rufus, Consul. 
95 Q. Mucius Scaevola (pontifex), 

Consul. 

92 Sulla, Dictator. 
89 End of Social War. 

Leges Corneliae. 
66 C. Aquilius Gallus, Praetor. 
63 Cicero, Consul. 
59 Julius Caesar, Consul. 
51 Servius Sulpicius, Consul. 
49 Accession of Julius Caesar to 
supreme power. 

Lex Rubria. 

45 Lex Julia municipalis. 
44 Assassination of Caesar. 
40 Lex Falcidia. 



27 Caesar Octavianus receives title of 
Augustus (first Constitution of 
the Principate). 
23 Second and final Constitution of the 

Principate. 
27-14 A. D. Principate of Augustus. 
M. Antistius Labeo. 
C. Ateius Capito. 

18 Lex Julia de adulteriis et de 

maritandis ordinibus. 

A. D. 

4 Lex Aelia Sentia. 

6 Lex Julia de vicesima hereditatium. 

9 Lex Papia Poppaea. 

14-37 Tiberius, Emp. 

Masurius Sabinus. 

Proculus. 

19 Date to which Lex Junia (Norbana) 

is generally ascribed. 
30 C. Cassius Longinus, Consul. 
37-41 Caligula, Emp. 
41-54 Claudius, Emp. 
Lex Claudia. 
S. C. Claudianum. 
46 S. C. Vellaeanum or Velleianum. 
54-68 Nero, Emp. 

S. C. Neronianum. 
62 S. C. Trebellianum. 
68 Galba, Emp. 

Vitellius, Emp. 
68-79 Vespasian, Emp. 
70 S. C. Pegasianum. 
79-81 Titus, Emp. 
81-96 Domitian, Emp. 
96-98 Nerva, Emp. 
98-117 Trajan, Emp. 
117-138 Hadrian, Emp. 

Edictum Perpetuum of Salvius 

Julianus. 
138-161 Antoninus Pius, Emp. 

First and part of second book 
of Gaius probably written 
at this time. 

161-180 M. Aurelius Antoninus, Emp. 
Institutes of Gaius probably 
completed under this Em- 
peror. 

178 S. C. Orfitianum. 
180-193 Commodus, Emp. 
193 Pertinax and Julianus successively 

Emperors. 

193-211 Septimius Severus, Emp. 
204 Papinian, praefectus praetorio. 



Vlll 



CHRONOLOGICAL TABLE 



A. D. 

211-217 Caracalla, Emp. 
Papinian killed. 
Edict of Caracalla extending 

citizenship. 

217-218 Macrinus, Emp. 
218-222 Elagabalus, Emp. 
222-235 Severus Alexander, Emp. 
222 Ulpian, praefectus praetorio. 
228 Ulpian killed. 
235-238 Maximinus, Emp. 
238 Gordianus I and II, Emp. 
238-244 Gordianus III, Emp. 
244-249 Philippus, Emp. 
249-251 Decius, Emp. 
251-253 Trebonianus Gallus, Emp. 
253 Aemilianus, Emp. 
253-260 Valerian and Gallienus, joint 

Emperors. 

260-268 Gallienus, sole Emperor. 
268-270 Claudius II, Emp. 
270-275 Aurelian, Emp. 
275-276 Tacitus, Emp. 
276 Florianus, Emp. 
276-282 Probus, Emp. 
282-283 Cams, Emp. 
283-284 Carinus and Numerianus, 

joint Emperors. 
285 Carinus, sole Emperor. 
285-286 Diocletian, sole Emperor. 



A. D. 

286-305 Diocletian and Maximian, 
joint Emperors. 

305-306 Constantius I and Galerius, 
joint Emperors. 

306 Constantius I, Galerius, and Con- 
stantino the Great, joint Em- 
perors. 

307-311 Galerius, Constantine the 
Great, and Licinius, joint Em- 
perors. 

311-323 Constantine the Great and 
Licinius, joint Emperors. 

323-337 Constantine the Great, sole 
Emperor. 

330 Constantinople, the seat of govern- 
ment. 

337-340 Constantius II, Constan- 
tine II, and Constans I, joint 
Emperors. 

340-350 Constantius II and Constans I, 
joint Emperors. 

350-361 Constantius II, sole Emperor. 

361-363 Julian, Emperor. 

363-364 Jovian, Emperor. 

364 Valentinian I and Valens, joint 
Emperors. They divided the 
Empire into the Western and 
Eastern. 



A.D. WESTERN EMPIRE. A, D. EASTERN EMPIRE. 

364-367 Valentinian I, Emp. 364-378 Valens, Emp. 

367-375 Valentin ian I and Gratian, Emp. 378-392 Theodosius I, Emp. 

375-383 Gratian and Valentinian II, Emp. 

383-392 Valentinian II, sole Emperor. 

392-395 Theodosius I, Emperor of East and West. 

395-423 Honorius, Emp. 395-408 Arcadius, Emp. 

408-423 Theodosius II, Emp. 
423-425 Theodosius II, Emperor of East and West. 



425-455 Valentinian III, Emp. 
426 Law of Citations. 
439 Codex Theodosianus. 
455 Petronius Maximus, Emp. 

Sack of Rome by the Vandals. 
455-456 Avitus, Emp. 
457-461 Major ian, Emp. 
461-467 Government practically in 
hands of the barbarian Ricimer. 
467-472 Anthemius, Emp. 
472 Olybrius, Emp. 
472-475 Julius Nepos, Emp. 
475-476 Romulus Augustulus, Emp. 
End of Western Empire. 



500 Lex Romana Burgundionum. 
506 Lex Romana Visigothorum, or 

Breviarium Alarici, containing 

Epitome of Gaius. 
511-515 Edictum Theodorici (Lex 

Romana Ostrogothorum). 



425-450 Theodosius II, Emp. 



450-457 Marcian, Emp. 
457-474 Leo I, Emp. 
474 Leo II, Emp. 
474-491 Zeno, Emp. 
491-518 Anastasius I, Emp. 
518-527 Justin, Emp. 
527-565 Justinian, Emp. 
Tribonian. 

528 Code ordered. 

529 Code published. 

530 Digest ordered. 

533 Digest and Institutes published. 

534 Revised edition of Code published. 



HISTORICAL INTRODUCTION 

IN order to justify the character of this introductory essay it is 
necessary to say a few words about the intention with which it is 
written. The reader must regard it mainly in the light of an intro- 
duction to the Institutes of Gaius, not in the light of a disinterested 
sketch of the history of Eoman Law. Had it been intended to have 
the latter character, both some of its omissions and some of its 
inclusions would be wholly unjustifiable. The most signal of the 
omissions is the neglect to give an adequate treatment to the stage of 
Roman Law which yields to no other in importance the stage at 
which it passes from the religious to the secular sphere, from Fas to 
Jus. One of the chief questions which is, or should be, agitating 
students of Koman Law at the present day, is that of the period at 
which this transition was effected. For, if it is true that Roman Law 
retained its priestly character and its religious sanctions to a late 
period of the Republic l , then the traditional history of the Twelve 
Tables is an improbability, and the account given by Cicero and 
other writers of the legislation and procedure of the Monarchy and 
early Republic is an anachronism. The student of Gaius, however, 
is not very intimately concerned with this far-reaching historical 
question ; and I have been content to state my general adherence to 
the traditional view without attempting to justify it by evidence. 

Amongst subjects included in this sketch, which have little direct 
bearing on the histoiy of Roman Law, I may mention the descriptions 
of the structure of the different Comitia at Rome and the account of 
the manner in which the powers of the Princeps were conferred. 
From the point of view of the general history of the civil and 
criminal law in a State it is not of much importance to determine the 
particular mode in which a legislative assembly is constituted, or the 
precise manner in which a sovereign (whether nominal or real) is 
invested with his authority. But these historical questions do to 
some extent underlie subjects which are treated by Gaius ; and, as it 
was not found convenient to deal with them at any great length in 
the commentary, a place had to be found for them in this intro- 
duction. 

1 This thesis has been vigorously maintained by Lambert in his work 
Lafonction du droit civil compare (1903). 

WHITTUCk D 



x HISTORICAL INTRODUCTION 

1. The Unification and Extension of Roman Law. 

The history of Eoman Law begins for us with the traditions that 
have been preserved concerning the Koman Monarchy. The exist- 
ence of a Monarchy such as that described for us by annalists like 
Livy and Dionysius, implies the existence of a consolidated State, 
with a central legislative and executive power and a tolerably 
uniform system of law. In the Monarchy, however, and even in the 
early Eepublic it seems that the system of law was not marked by 
perfect uniformity, since the two classes of Patricians and Plebeians, 
which made up the Eoman State, appear to have been distinguished, 
not only by the possession of different political privileges, but also by 
the possession of different systems of customary law '. It is even 
possible that a further divergence of practice may have existed in 
the most primitive society, or societies, out of which the City and 
Monarchy of Eome developed that a considerable amount of 
autonomy in legal relations may have existed in the Clans (Gentes) 
and Villages (Vici), out of which the earliest Eome was formed. 
The history of Eoman law, from its beginning to its close, would 
thus be marked by a process of gradually increasing unification. 
First the customs of the Clans were merged in the customs of a 
State ; but this State consisted of two classes, Patricians and 
Plebeians ; and each of these classes seems to have had a customary 
law of its own. Then an attempt was made to create a uniform 
system ; and this uniformity was probably secured by making 
patrician law approximate as closely as possible to plebeian the 
law of the few to the law of the many. A further advance was 
made when Eome had become the mistress of Italy. Italian 
customs were made ultimately to conform to those of the leading 
State, and the free cities of Italy became the municipalities of Eome. 
Lastly, Eome had created an Empire. For a very long period she 
adopted the wise and cautious policy of recognizing, as far as possible, 
the local and tribal law of the cities and peoples under her control. 
The recognition of this local or tribal law was not, however, merely 
a symptom of the favourite Eoman principle of non-interference. It 
was also a sign that the privileges of Eomans and Italians were not 
possessed by provincials ; for the conferment of Eoman citizenship, 
or even of Latin rights, necessarily carried with it the use of the forms 
of Eoman Private Law 2 . Hence, when a time came at which Eome 
was willing to raise States or individuals in the Provinces to a level 

1 See p. xix. 

2 The Latins possessed commercium and some of them conubium. Full citizen- 
ship would also be possessed by a considerable class in Latin towns, i. e. by all 
who, through holding a magistracy, had become Roman citizens. 



EXTENSION OF ROMAN LAW xi 

with her own citizens, the law of Eome came to take the place of the 
territorial or tribal law of these political units. The process of a 
thorough imperial unification by means of a common system of 
Eoman Private Law had begun. 

2. The Epochs in this process of Unification and 
Extension. 

The dates of the three epochs which we have touched on can only 
be vaguely indicated. We have no knowledge of the year, or even 
of the century, when the smaller political units, out of which Eome 
was formed, became so thoroughly marshalled under the rule of a 
common government that the customs of the Clans were made to 
conform to the principles laid down and enforced by a single superior 
authority. For the second epoch the period, that is, at which an 
attempt was made to secure a uniform system of law which would 
be binding equally on Patricians and Plebeians tradition does 
supply a date, one, however, that has more than once been doubted 
by modern writers on Eoman History and Law 1 . This traditional 
date is comprised in the years 451-448 B.C., years which the Eomans 
believed to mark the creation of the Decemviral Commission and the 
publication of the Law of the Twelve Tables. The third tendency 
that of the unification of Eome with Italy, although it had begun to 
be felt in isolated cases from a very early period of Eoman History, 
may be said to have received its final impulse at the close of the great 
war for Italian freedom, generally known as the Social war, in 89 
B. c. The last epoch that of imperial unification may be said to 
have been ushered in by the accession of Caesar to supreme power in 
49 B. c. It had not been closed even by the time of Gaius, about the 
middle of the second century A. D. ; for, even at that late period 
the Eastern part of the Empire still abode by Eastern forms of law 2 . 
It may even be questioned whether the Edict of Caracalla, which 
is believed to have extended Eoman citizenship to all the free 
inhabitants of that portion of the world that was ruled by Eome, 

1 Pais, in his Storia di Roma, has stated the view that the Decemviral Legisla- 
tion has been antedated by about a century and a half. He brings it down to 
the close of the fourth century B.C. He believes that Appius Claudius, the 
Decemvir, is a duplicate of Appius Claudius, the censor of 312 B.C., and that 
the story of a publication by the Decemvirs is a duplicate of the story of the 
revelation of the forms of Law by Cn. Flavins in 304 B.C. Lambrt has gone 
still further in a view expressed in three works (La question de Tauthenticite des 
XII Tables et les Annales Maximi ; La function du droit civil compare; L'histoire 
traditionnelle des XII Tables). He thinks that the Twelve Tables, as a code, 
originated with Sextus Aelius Paetus, consul in 198 B.C., whom tradition 
regards as their earliest commentator, although he admits that there may have 
been successive partial compilations before this date. 

2 Mitteis, Reichsrecht und Volksrecht. 

ba 



xii HISTORICAL INTRODUCTION 

between the years 212 and 217 A.D., really eliminated all the local 
varieties of customary law. Local customs tend to die hard, and it 
was never in the spirit of the Koman Empire to suppress them. The 
legal unity of the Empire was always more strongly marked in the 
matter of Procedure than in the matter of Substantive Law. The 
processes of the Courts were the same for every Province at a time 
when the greatest varieties of customary law were recognized by 
these courts. 

3. Stages of Roman Legal History The Clan and the 
Family Evolution of individual rights. 

We may now attempt to treat in greater detail the stages of Eoman 
Legal History which we have outlined. The earliest stage that 
marked by the independent or almost independent life of the Clan 
or Gens is one for which, by the nature of the case, no definite 
historical evidence exists. The reality of such a life is merely an 
inference drawn from the characteristics of the Gens as it appears 
before us in the historical period. These characteristics seem to 
prove that the Gens is not a really primitive institution, but a late 
and advanced stage in the social development of the Latin races ; but, 
on the other hand, they may show that it was in many respects a 
more primitive unit than the State ; that is, that it exercised rights 
and duties which were ultimately exercised by the State. No 
political society worthy of the name can deal with Clans as the 
subjects of rights ; it can deal only with Families or Individuals. 
Hence, if the Roman Gens ever lived a strong corporate life, the 
authority of the Roman State must in those days have been weak. 

The organization of the Gens was based on the patriarchal idea in 
its extreme form ; that is, on the conception that relationship is only 
binding when it can be traced through the male line. And this is 
the fact which seems to prove that the Gens marks a late and 
mature stage in the development of Latin societies ; for the patri- 
archal idea is not one that is readily grasped by the mind of primitive 
man. Yet, late as the Gens is when considered in reference to the 
prehistoric development of the Latin race, it perhaps possessed, before 
the veiy dawn of history, a unity and power of its own, of which 
but pale reflections survive in the historical period. In historical 
times the only test of unity was the common name borne by the 
Gentiles x ; the chief signs of corporate action were their guardianship 
of the insane and their reversionary right of guardianship over 
women and children 2 powers which the Gentiles must have 

1 Cic. Top. 6. 29 ' Gentiles sunt inter se, qui eodem nomine sunt.' 

2 [Cic.] ad Her. i. 13. 23 ; Cic. pro Domo, 13. 35 ; Gaius, i. 157, ii. 47. 



EVOLUTION OF INDIVIDUAL RIGHTS xiii 

exercised by delegating their authority to a personal representative. 
The further right which they possessed in later times, of succeeding 
to intestate inheritances in the last resort l , was perhaps a right 
possessed by individual members of the corporation rather than by 
the corporation itself. But a corporate activity far greater than this 
has been suspected for earlier times. There is indirect evidence that 
all Private Land (Ager Privatus) was at one time owned by the 
Gentes, not by families or individuals 2 , and the view that the 
primitive Koman Senate was in some way representative of the 
Gentes is in accordance with the belief of Eoman antiquity 8 . The 
fact that the primitive Roman State was in many ways conditioned 
by its clan organization seems to be certain. As the State grew 
stronger, it substituted the Family for the Clan. Between the two 
there is only a difference of degree. The Family (Familia) is the 
aggregate of the members of a household under a common head, the 
Paterfamilias ; whereas the Gens is the aggregate of all individuals 
who bear a common name and who, therefore, if their ancestry 
could be traced in the male line through all its stages, would be 
found to be the descendants of some ultimate common ancestor. 
But the Familia is a far smaller, and therefore a far less powerful, 
unit than the Gens. It cannot so effectively dominate the State or 
impede its activities 4 . Again, the heads of families are many in 
number ; the heads of the Gentes (who must have existed at the 
time when the Gens was the important unit) were necessarily few. 
The State which deals with families deals with a multitude of 
individuals, not with an oligarchy representing the interests of a 
number of corporations. The conception of individual rights, in 
their modern sense, was, it is true, never fully recognized in Roman 
Private Law. It was impeded by the Patria Potestas the life-long 
power of the father over the son. But much was ultimately done to 
lessen the rigour of this patriarchal rule ; and the principles of 
Roman Law were finally extended to races which knew nothing 
of the Patria Potestas. This law ultimately gave the most perfect 
expression hitherto witnessed by the Wbrld of rights which were 
both universal and individual. The existence of the Empire gave 
Rome the power, possessed in as high a degree by no other State, of 
dealing with the individual on universal lines, because she was not 
hampered by the barriers between man and man thrown up by 
separate national institutions. 

1 Ulpian in CoUatio, 16. 4. 2 ; cf. Gaius, iii. 17. 

2 Mommsen, Staatsr. iii, p. 23 foil. 

3 Cic. de Hep. ii. 20. 35 ; Liv. i. 35. 

* See Daily News, Sept. 5, 1901 (< The Genius of Rome '). 



xiv HISTORICAL INTRODUCTION 

4. Early Religious Law (Fas) The Leges Regiae The 
Secularization of Law. 

A process, which runs parallel with that which we have just de- 
scribed, is the process by which Eoman Law came to be secularized ; 
the process, that is, by which human were gradually substituted for 
divine sanctions. The customary law of a primitive society is either 
identical with, or developed from, some form of belief which implies 
the omnipresence of the gods and their detailed interest and activity 
in human affairs. In primitive Eome the pleading (actio) of the 
litigant in a civil suit is a religious chant, every word and cadence 
of which must be learnt from the priest ; the wager (sacramentum), 
by which the process is stated, is a gift to a temple, and is probably 
conceived as an atonement for the involuntary perjury of the man 
who loses his case 1 ; the penalties of the criminal law are means of 
expiating the anger of the gods, the severest form of atonement being 
the sacrifice of the sinner on the altar of the deity whom he has 
offended 2 . Eome in the historical period still preserves many traces 
of these beliefs of her infancy. They are found in the respect for 
the Auspices, in the conservatism which maintained the cumbrous 
forms of the old pleadings (actiones) and the custody of these forms 
by the Pontifical College ; in the varied methods by which crime or 
sin is punished, some offences being reserved wholly for the secular 
courts, others being visited by the judgments of the Pontifical 
College, others again being subject to the milder chastisement of the 
Censor before he performs the religious rite of Purification (Lustratio). 
But the belief of the Eomans themselves was that, in the very earliest 
stages of their recorded or imagined history, the primitive epoch of 
complete subservience to religious forms, if it ever existed, had been 
already passed, and that even in the time of the Kings something 
approaching a clear line could be drawn between the functions of 
Eeligious Law (Fas) and those of Secular Law (Jus). At the close of 
the history of the Eepublic there could be shown, in contradistinction 
to the great secular code of the Twelve Tables, a collection of religious 
ordinances, believed to be even more ancient than this code, and 
known as the Laws of the Kings (Leges Eegiae) 3 . These laws are 
' not represented as having formed a code, but merely a compilation. 
They were believed to be regal ordinances, issued by different Kings, 

1 See Danz, ' Das Sacramentum und die lex Papiria,' in Zeitschr. f. R. G. vi 
(1867), p. 339 foil. ; Der sacrale Schuts, p. 151 foil. 

2 This must have been the original meaning of the mnsecratio capitis, the 
penalty of the leges sacratae. See Liv. iii. 55 ; Festus, p. 318 ; Bouche-Leclercq, 
Les pontifes de Vancienne Rome, p. 196. 

3 The extant Leges Regiae are to be found in Bruns, F antes juris Romani 

I. 1. 



THE LEGES REGIAE xv 

which had been collected in the early days of the Kepublic by a 
Pontiff named Papirius '. It was held that they had been publicly 
exhibited in Koine, and were restored, like the Twelve Tables, after 
the burning of Kome by the Gauls (390 B. c) 2 . At the end of the 
Republic the compilation was edited, perhaps to some extent revised, 
by a scholar named Granius Flaccus, who is believed to have been 
a contemporary of Caesar 3 ; but there is no reason for supposing 
that riaccus introduced any essential alteration in the tenor of the 
ordinances. These ordinances, in the form in which they have been 
preserved to us, bear the strongest internal marks of their genuine- 
ness. Some of the provisions which they contain are quite pre- 
historic and could never have been valid at any period of the history 
of the Republic. Others deal with purely religious observances, 
which may belong to any date, but may be as early as the city of 
Rome itself. The Royal Laws, in fact, contain a series of ordinances, 
dealing with social, moral and religious life, such as may have been 
issued over a long period of time by the College of Pontiffs. It is 
not likely that all of these rules really go back to the epoch of the 
Kings ; but many of them must do so, for they reflect an extremely 
primitive stage of culture and religious belief. In fact, one of the 
most surprising features of the Royal I^aws is their lack of signi- 
ficance for the ordinary current of Roman life, as it was lived in the 
historical period. Where they are not a dead letter, they refer only 
to slight and exceptional contingencies, to the bare outline of the 
political life of the State and to the faintly denned structure of its 
hierarchical organization ; whereas the Law of the Twelve Tables is 
a great living force, which pervades the whole of Roman business 
life. The Royal Laws reflect on the whole the rule of Fas ; the 
Twelve Tables almost entirely the rule of Jus. A comparison of 
the former compilation with the latter code, in regard to their re- 
spective influences, exhibits more effectively than any other evidence 
could do the triumph of secular over religious law even in the early 
period of the Republic. 

5. Jus Its different forms as exhibited in Procedure. 

The counterpart to the rule of Fas is the rule of Jus. .Jus seems 
originally to have meant ' That which is fitting ' 4 , and the word 

1 Dionys. iii. 36; Pompon, in Dig. 1. 2. 2. 36. 2 Liv. vi. 1. 

3 Paulus in Dig. 50. 16. 144 ; Censorinus, De Die Nat. iii. 2. 

4 Clark, Practical Jurisprudence, p. 17. Nettleship (Contributions to Latin Lexico- 
graphy, p. 497) enumerates the following senses of jus in Latin literature : 

(1) a law court (e.g. in the phrases 'In jus ducere,' ' Res est in jure'), 

(2) a bond or tie (e.g. in the phrases 'Jus amicitiae,' 'Jura necessitudinis'), 

(3) power, authority, (4) right to do a thing, (5) law, or a system of law, 
(6) what is right and fair, (7) the plural jura means either (a) rights or (b) rules 
of law, ordinances, decisions, and so authority. 



xvi HISTORICAL INTRODUCTION 

never necessarily conveys the implication, contained in the word 
Law, that the thing it describes is the result of enactment by a 
Sovereign. It conveys rather the idea of valid custom, to which 
any citizen can appeal, and which is recognized, and can be enforced 
by, a human authority. Jus is a nugatory thing, a vain abstraction, 
until it can be realized ; it is a thing recognized only in practice ; 
and so indissolubly were the ideas of Eight and Satisfaction con- 
nected with one another in the minds of the Romans that they used 
the same word ' Jus ' for Right and for Court l . This association of 
ideas gives us the clue to the fact that the only possible method 
of distinguishing between the different kinds of Jus is by appealing 
to Procedure. In early societies, where there is no science of Juris- 
prudence, the only way in which the distinctions between different 
kinds of law public and private, civil and criminal can be exhibited, 
is by pointing to the fact that different kinds of mechanism have 
been created for satisfying different kinds of claims. Thus the 
characteristics of private law are those of a civil suit. Here the 
action can be brought only by the injured party or his representative, 
the satisfaction recovered belongs to the injured party, the Court 
which gives the satisfaction is composed of some arbitrator or judge 
(arbiter or judex) chosen by the consent of the parties, but approved 
by the judicial magistrate who represents the State. Criminal Law 
may similarly be denned in terms of Criminal Procedure. Here the 
wrong done is regarded as inflicted, not merely on the individual 
injured, but through him on the State. The State, therefore, will 
not depend on the initiative of the injured individual to undertake 
the prosecution. It can either be taken up by any citizen, or is 
regarded as the peculiar duty of a magistrate. The magistrate is 
often both prosecutor and judge. The defendant has no voice in 
the selection of the Court. The Court consisted, in the earlier pro- 
cedure at Rome which never became wholly extinct during the 
Republic, of a magistrate representing the State, or of the State 
itself in the form of the Sovereign Assembly of the People; at a 
later period, of a select body of Judices with a President (Quaesitor), 
both Judges and President being created by statute. The satisfaction 
recovered from the defendant in such a trial, if it takes the form of 
a fine, belongs not to the aggrieved individual but to the State ; if 
it assumes the form of punishment which is not pecuniary, such 
punishment is inflicted by the State. The third class of occasions 
on which the State intervenes to correct a wrong or to chasten an 
individual, is that governed by the rules of Administrative Law 2 . 
The procedure springing from this Law has analogies both to civil 

1 See note 4, p. xv. 

2 On this branch of Public Law see Mommsen, Staatsr. i, p. 172. 



THE DIFFERENT FORMS OF JUS xvii 

and to criminal jurisdiction. Administrative jurisdiction has as its 
object either the enforcement of a personal service to the State on 
an individual, or the exaction of a debt which he owes to the State. 
The obligation to service is generally enforced by a fine imposed by 
the magistrate. But whether what is demanded by the State takes 
the form of personal service or a pecuniary debt, the characteristic of 
Administrative jurisdiction at an early period of Roman History is 
that the magistrate who represents the State has a double character. 
He is not only prosecutor or plaintiff but also judge. This principle, 
however, was eventually modified. If the fine imposed exceeded 
a certain limit, an appeal to the People was allowed l ; and, later 
still, the penalty might be sought either by a magistrate or a 
common informer before a civil court \ When a debt to the State 
was the object of dispute, the custom may eventually have been 
established that the magistrate should not himself judge, but should 
appoint for this purpose a panel of those assessors of debts or 
damages who were known as Recuperatores 2 . 

The question as to what particular cases shall fall under each of 
these three heads of Civil, Criminal and Administrative Law is one 
that is answered differently by different political societies ; and Rome 
herself gave different replies to this question at various periods of 
her history. But we know of no period in the life of Rome when 
the distinction between these three types of Law and Procedure was 
not clearly grasped, and expressed by the higher judicial authorities, 
who were at Rome in a very real sense the makers of law. 

6. The ultimate sources of Jus The Monarchy and 
the Early Republic. 

The problem of the ultimate source and sanction of Jus was not 
one that troubled the Roman to any appreciable degree at any period 
of history. He was content to regard it as the product of Custom 
assisted by Interpretation. At a later period he supplemented it by 
acts of Legislation ; but, even when he did 'so, he was much less 
concerned with the words of the enactment than with the manner 
in which these words were interpreted. Scarcely any people has 
had less of a gift, or natural inclination for, scientific legislation or 
the formation of a Code. The Roman's dependence on authority and 
skilled interpretation was, therefore, great ; and this authority and 
power of interpretation are believed to have been represented, in the 

1 This procedure is illustrated by the Lex Bantina (Bruns, Fontes, iii. 9). It 
is there ordained ' Earn pequniam quei volet magistratus exsigito. Sei postulabit 
quei petet, pr(aetor) recuperatores . . . dato . . . facitoque joudicetur.' 

3 Compare the procedure ordained by the Lex agraria of 111 B.C. (Bruns, 
Fontes, iii. 11), II. 36-39. 



xviii HISTORICAL INTRODUCTION 

earliest times, by the King and the College of Pontifices. Justice could 
only be obtained by a litigant who knew the formularies of action, 
precise verbal accuracy in which was necessary for the successful 
conduct of a suit l . But this knowledge could be obtained only from 
the King and his Pontiffs. The King, too, must have given the ruling 
in law which determined what form of action should be employed 2 . 
Even at this early period the private Judex or Arbiter may often 
have been used for the final settlement of a suit 3 ; but the King must 
have assisted in his appointment ; and his judgment must have 
been conditioned by the preceding form of action which the King 
and the Pontiffs had thought appropriate to the suit. 

The change from Monarchy to Kepublic could have made little 
difference in the manner in which the law was revealed to the 
Eoman litigant, except in so far as this change may have increased 
the power of the College of Pontiffs. The annual tenure of the 
consulship, and the fact that each occupant of this office was 
hampered by a colleague, prevented the new magistracy, which was 
supposed to give the forms of Jus, from exercising over its skilled 
advisers the authority which had been once wielded by the King ; 
and the patrician aristocracy, each member of which might be a 
consul or a pontiff, must now have attained a solidarity which it had 
never known before. The tendency of this aristocracy was to close 
up its ranks and to assert a monopoly, not only of office, but of 
knowledge of the forms of law. 

7. Patricians and Plebeians. 

Had Eome been a homogeneous community, there would perhaps 
have been no agitation for the revelation of the principles of law 
which underlay the forms of procedure, and there would therefore 
have been no tendency towards an early codification. But Kome 
was composed of two communes, not of one. There was a Plebs 
within the Populus ; and this Plebs possessed a solidarity which 
gave it the means of lifting up its voice in a demand, not for power, 
but for the protection of legal rights, and for the knowledge which 
was essential to that protection. The origin of the Plebs is wholly 
unknown. The favourite assertion of modern writers, that the 
Plebeians were a class which had emerged from a condition of client- 
ship to the Patricians, does very little to solve the problem of the 
origin of the former class, except in so far as it suggests that some of 
the Plebeians were inhabitants of conquered cities that had been 
deported to Kome, and that others were voluntary sojourners from 

1 Gains, iv. 11. Cic. de Rep. v. 2, 3. 

3 Savigny, System des rom. Rechts, vi. p. 287 ; BernhOft, Stoat und Recht der 
Kbnigszeit, p. 230. 



PATRICIANS AND PLEBEIANS six 

distant cities who were protected by the government and the 
patrician clans. But it seems impossible that causes such as these 
could have led to the creation of a mass of men that appears in early 
Eoman history as forming the bulk of the community ; and it is 
possible that further evidence (archaeological and ethnological) may 
show that the distinction between Patricians and Plebeians is one 
based on race, and that the existence of the Patricians as a governing 
class is the result of the conquest of a native race by bands of im- 
migrant wanderers 1 . Throughout Koman law there is a curious 
persistence of dual forms for the attainment of the same end which 
may be a survival of two distinct systems of customary law possessed 
by different peoples, the conquerors and the conquered. Thus we 
have the Sponsio side by side with the Nexum, marriage by Con- 
farreatio side by side with marriage by Usus or Coemptio, the 
testament in the Comitia Calata side by side with the testament ' per 
aes et libram.' The procedure ' by the copper and the scales,' in 
the manifold forms which it assumes, seems to be especially a 
characteristic of the popular law of the commons. The exclusion of 
the Plebeians from the magistracy and the priesthood, and the denial 
to them of the right of Conubium with Patricians, may also point 
in the direction of a fundamental racial distinction between the two 
classes. But the disabilities consequent on this racial distinction, 
if we suppose it to have existed, were by no means limited to the 
domain of public rights. They pervaded the whole of Koman life to 
such an extent that there is considerable justification for the view 
that the early condition of the Plebeian was very like that of the 
client. In the first place, the Patricians maintained that they alone 
formed Gentes, and the condition of being a member of a Gens, or 
Gentilis, was that the man who made the claim should be able to 
point to a perfectly free ancestry 2 . In this claim of the Patricians 
we therefore have the implication that the ancestors of the Plebeians 
were not free. In all respects but this, the Plebeians formed Clans 
just like the Patricians. A group of Plebeians who bore a common 
name formed a Stirps, but this Stirps was supposed to be a mere 
offshoot of some patrician Gens on which it was held to be de- 
pendent. It possessed no independent rights of its own. A group 
of Plebeians who could trace their ancestry back to a common 

1 Compare Ridgeway, The early age of Greece, p. 257. ' We may conclude that 
the two main elements in the population of. early Rome were the aboriginal 
Ligurians, who formed the Plebs, and the Umbrian Sabines, who formed the 
aristocracy.' The evidence is perhaps not sufficient to warrant so definite 
a conclusion ; but the more that I have dwelt on the lack of homogeneity in 
early Roman life, the more definite has become my conviction that we have to 
deal with racial, not merely with social, differences. 

3 l Gentiles sunt . . . quorum majorum nemo servitutem servivit ' (Cic. Top. 
6. 29). 



xx HISTOEICAL INTRODUCTION 

head were called Agnati ; but these Agnati had not the rights of 
inheritance, or perhaps the other family rights, possessed by the 
Gentiles. The rights of plebeian Agnati were recognized by the 
Twelve Tables ; but this was perhaps the first recognition that they 
gained. In the second place, of the two rights which were sub- 
sequently considered as forming the minimum conditions of citizen- 
ship, the Jus Conubii was, we know, not possessed at all by Plebeians, 
and it is probable that they possessed the Jus Commercii in a very 
imperfect form. We cannot, it is true, point to a time when no 
Plebeian could conclude a contract, or bring an action, unless, like 
a client, he acted through a patron. But it is probable that in early 
times he had a very limited capacity for controlling land ; that he 
held the ground, which he worked for himself, merely on sufferance 
(Precario), and not in virtue of his civic right (ex Jure Quiritium) ] . 
This seems proved by the fact that he was not originally liable to 
service in the legions 2 : for there can be little doubt that such 
service was a burden imposed on landowners 3 . It seems that the 
one great condition which led to the rise of the Plebeians as a 
r power in the State was the recognition of their rights as independent 
holders of land. This recognition was accorded because their ser- 
vices were required as soldiers in the legions and as tax-payers. 
They could now hold and dispose of Kes Mancipi ; that is, those 
kinds of property which were assessed at the Census (Kes Censui 
Censendo) 4 and which, as being liable to such assessment, required 
peculiar methods of transfer as evidence of ownership. This change 
must have preceded or accompanied the great epoch of reform which 
is associated with the name of Servius Tullius. 

8. Acquisition of voting rights by Plebeians Assemblies 
of the Populus and of the Plebs. 

When the army was made the basis of the new Comitia Centuriata, 
the wealthier Plebeians who were members of the army gained a 
vote ; and the Comitia Curiata, originally patrician, must soon have 
come to admit members of the Plebs. But this voting power did 
little good to the class as a whole. Its true strength lay in its 
military organization. The first secession was an incident in a 
campaign ; and it is not surprising that the officers whom the 
Plebeians appointed to protect their persons against the patrician 

1 Cf. Savigny, Recht des Besitees (seventh edition), p. 202. 

a If we believe that the Servian census was intended to create liability to 
service for Plebeians. Cf. p. xxv. 

3 This seems shown by the continuance of the use of the word assidui for the 
members of the Servian Classes. 

1 Cic. pro Flacco, 32. 80. 



THE TWELVE TABLES xxi 

magistrates, bore the military name of Tribuni. The creation of the 
Tribunate gave the Plebs a political organization, and was the 
starting-point of that dualism which runs through the whole of the 
Eoman constitution a dualism expressed in the distinction between 
the Comitia of the People and the Concilium of the Plebs, between 
Lex and Plebiscitum, between Magistratus Populi and Magistratus 
Plebis, between the Imperium of the one and the Sacrosanctitas of 
the other. The tribunes, however, could offer only personal assistance 
to outraged individuals, and though they proved a potent channel 
for the petitions of the Plebs as a whole, they were a very ineffective 
means of protecting the private rights of individual members of this 
order. Effective protection was in any case impossible until a fuller 
light had been thrown on the question what the rights to be pro- 
tected actually were. Hence the demand for the publication of the 
principles of the law on which the jurisdiction of the patrician 
magistrates was based. 

9. Unification of the Law by means of the Tivelve Tables. 

The story of the creation of the Decemvirate and the formation of 
the Code of the Twelve Tables, which has come down to us in a 
highly picturesque and legendary shape, presents us with the picture, 
fir.st of a prolonged agitation of ten years (462-452 B. c.) maintained 
by the tribunes of the Plebs, then of a commission sent to gain 
knowledge of Hellenic codes, next of the appointment of two 
successive boards of Decemvirs for the years 451, 450 B. c., and 
finally of the ratification of the Code by the Comitia Centuriata and 
of its publication, in its completed form, by the consuls of 448 B. c. 1 
The Greek influence on the Code 2 , although slight, is undeniable, 
because it was unavoidable. It may not have been gathered, in the 
way affirmed by tradition, by the appointment of a commission to 
inspect the systems of law of different Hellenic states ; but it was, 
at the least, an inevitable result of the prolonged influence of the 
civilization of Magna Graecia 3 , to which Eome had been .subject 
from the days of her infancy an influence which successively 
moulded her army, her coinage, her commerce and her literature. 
Again no State, however self-centred, could dream of undertaking 
such an enterprise as a written system of law without glancing at 
similar work which had already been accomplished by neighbouring 
cities. But, in spite of the fact that some of its outline and a few of 

1 Liv. iii. 57. 

2 See Pais, Storia di Roma, i. 1, p. 584. He describes the law of the Tables as 
the result of a fusion of the rude national law with the more civilized dispositions 
of Greek culture. 

3 Cf. Voigt, XII Tafeln, i, p. 14. 



xxii HISTORICAL INTRODUCTION 

its ideas may have been borrowed from Greek sources, the Law of 
the Twelve Tables is thoroughly Roman both in expression and in 
matter. The form of expression is, it is true, not that of later 
Roman legislation complicated, technical, obscure. Had it been so, 
the Twelve Tables could scarcely have survived. It was the form 
that was current in the verbal juristic maxims of this and a later 
period brief, gnomic, rhythmic and imperative \ As to the matter, 
that was conditioned by the task which the Decemvirs had to 
perform a task which they accomplished with an astonishing 
degree of success. Their object was to make a common law for 
i Roman society considered as a whole. It was no business of theirs 
to abolish patrician privileges or to remove the peculiarities of 
patrician ceremonial ; but they had to find a system of Jus which 
would be equally valid for all Romans ; and this they naturally 
found in the customary law of the mass of the people ; that is, of the 
Plebs. They were forced to recognize a social disability of the Plebs, 
as exemplified in the absence of Conubium with Patricians 2 ; for to 
remove it would have been an alteration of the Constitution as well 
as an infringement of patrician rights. But how completely they 
ignored the existence of the Plebs as a separate political community 
is shown by the fact that the tribunes do not seem to have been 
mentioned in the law at all. The assumption probably was that the 
publication of the Code should render the Tribunate unnecessary ; 
and this it might have done, had the patrician government lived up 
to its promises. 

The law of the Twelve Tables, as the ' body of the whole of 
Roman law ' (' corpus omnis Romani juris ') and the ' fountain of all 
public and private law' (' fons omnis publici privatique juris') 
designations both of which are applied to it by Livy 3 contained 
ordinances on all the three branches of Jus, civil, criminal and con- 
stitutional. In the matter of civil law, we find regulations as to 
marriage and family relations, inheritance, testamentary disposition, 
debt and usury. The marriage recognized was that known as the 
result of usus a contract, that is, which was concluded by consent 
and strengthened by prescription 4 . It was ordained that the three- 
fold sale of a son by his father should issue in the freedom of the 
son 5 : although whether the Twelve Tables made this form of 
emancipation the basis of adoption is uncertain. The manumission 
of slaves who had been left free by testament, on the condition of 
purchasing their freedom, was also facilitated 6 . Recognition was 

1 Cf. Diod. xii. 26 j^ S ypcujxtffa voiMOtaia, $pa\eais teal airepirTois 
Siffifive 6av/j.ao(ifV7) fiexpt ruiv naff Jjfuas naipSiv. 

a Cic. de Rep. ii. 37, 63. * Liv. iii. 34. 

* Gaius, L 111. s Gaius, i. 132. ' Ulpian, Reg. ii. 4. 



THE TWELVE TABLES xxiii 

given to testamentary disposition as performed ' per aes et libram ' l 
while, in the matters of intestate inheritance and guardianship, the 
rights of the Agnati, common to Plebeians and Patricians, were 
regarded as prior to those of the Gentiles 2 . The harsh law of debt, 
which was a result at once of freedom of contract and of the very 
severe view which ancient societies take of the defaulting debtor, 
was maintained ; the Judicatus still became the bondsman of his 
creditor 3 , but now (perhaps for the first time), all the stages of the 
process of execution were published to the world, the rights of the 
creditor were defined, the chances of escape open to the debtor were 
accurately described. Loans on interest were permitted ; but the 
maximum rate of interest was fixed at ' unciarium foenus ' 4 (probably 
ten per cent.) ; and the usurer who exceeded this rate was punished 
more severely than the ordinary thief ; he was compelled to restore 
fourfold 5 . With respect to Civil Procedure (the exclusive knowledge 
of which had been one of the greatest elements of strength in the 
patrician government) it is clear that the outlines of the process 
such as the rules for the summons of parties and witnesses, and for 
the length of the trial 6 were described. But it is very questionable 
whether the Tables went so far as to specify the Forms of Action ; 
the actual words and gestures, that is, which had to be employed 
in any given case. We find a tradition that these forms were not 
revealed until nearly 150 years later, and that they were first given 
to the world in 304 B. c. by a certain Cnaeus Flavius 7 , a freedman's 
son and the clerk of Appius Claudius, the censor of 312 B.C., who 
was apparently also pontiff. But the traditions connected with the 
publication at Rome, even of the simplest information about Pro- 
cedure, are exceedingly obscure. On the one hand, we hear that 
this same Cnaeus Flavius published a Calendar which gave a record 
of Court Days (Dies Fasti) 8 ; on the other hand, it was believed that 
a Calendar of some kind had been already published by the 
Decemvirs 9 . It is possible that the decemviral Calendar had 
become antiquated, or that it had not been restored or republished 
after the burning of Rome by the Gauls (390 B. c.) 10 ; but it is clear 
that the Romans of Cicero's time had much vaguer ideas about the 
epoch at which the forms of Procedure were made accessible to the 
public, than they had about the date at which the principles of 
Substantive Law were given to the world. 

Cic. de Inv. ii. 50. 148 ; [Cic.] ad Her. i. 13. 23 ; Gaius, ii. 224. 

Ulpian in Collatio, 16. 4.2. 3 Gell. xv. 13. 11 ; xx. 1. 45. 

Tac. Ann. vi. 16. 6 Cato, de Re Rust, praef. 

Brims, Fontes, i. 2, Tab. i. 

Cic. de Or. i. 41. 185 ; ad Att. vi. 1. 8 ; Liv. ix. 46. 5. 

8 Cic. ad Alt. I.e. ; pro Mur. 11. 25 ; Liv. I.e. ; Plin. H.N. xxxiii. 1. 17. 

9 Macrob. i. 13. 21. lu Liv. vi. 1 ; Cic. ad Att. I. c. 



xxiv HISTORICAL INTRODUCTION 

The criminal law of the Twelve Tables reflects a more primitive 
stage of thought than its civil ordinances. But this is not sur- 
prising ; for, throughout the whole of Eoman History, the criminal 
law lags far behind the civil. The Tables recognize the principles 
of self-help and retaliation. A limb is to be given for a limb ; but for 
minor assaults pecuniary compensation is allowed \ We still find 
the idea of capital punishment taking the form of an expiation to an 
outraged deity ; thus the man who destroyed standing corn by night 
was hanged as an offering to Ceres 2 . The belief in witchcraft still 
survives ; for death is the penalty for incantations 3 . It is also the 
penalty on the judex who has taken bribes, and for treason 
(Perduellio) in the form of ' rousing an enemy against the State or 
handing over a citizen to the enemy 4 .' 

But it is where criminal law touches questions of personal liberty, 
and is connected with constitutional law, that the legislation of the 
Twelve Tables is most advanced. The principle of the Appeal to the 
People (Provocatio) against the sentence of the magistrate was 
maintained 5 ; it was enacted that no law or sentence should be 
passed to the detriment of an individual (Privilegia ne inroganto) 6 ; 
and it was laid down that no capital sentence could be issued except 
by ' the greatest of the Comitia ' (nisi per maximum comitiatum) 7 ; 
that is, by the Assembly of the Centuries, or Exercitus, gathered in 
the Campus Martius. 

An important aspect of the Public Law of the Twelve Tables is 
the guarantee of the right of free association, provided that it have no 
illegal intent. While nocturnal gatherings (coetus nocturni) are 
prohibited 8 , the formation of gilds (collegia) is encouraged. Such 
gilds were to require no special permit for their existence, and the 
rules which they framed for their own government were to be valid, 
provided that these rules were no infringement of public law 9 . 

Lastly, the most typical and important utterance of the Tables is 
to be found in the injunction that ' the last command of the People 
should be final 10 .' It is an utterance which shows how little the 
Decemvirs regarded their own work as final, how little they were 
affected by the Greek idea of the unalterability of a Code, of a Code 
forming a perpetual background of a Constitution in fact, by the 
idea of a fixed or written Constitution at all. It is an utterance that 
expresses the belief that law is essentially a matter of growth, and 



Gell. xx. 1. 12-14. 2 Plin. H.N. xviii. 3. 12. 3 Cic. de Rep. iv. 10. 12. 

Marcian in Dig. 48. 4. 3. 5 Cic. de Rep. ii. 31. 54. 

Cic. de Leg. iii. 4. 11. 7 Cic. de Leg. I. c. 

Seel, in Catil. 19. 9 Gaius in Dig. 47. 22. 4. 

' Ut quodcumque postremum populus jussisset, id jus ratumque esset ' (Liv. 
vii. 17). 



THE LEGISLATIVE ASSEMBLIES xxv 

prepares us for the fact that Eome saw no further scheme of suc- 
cessful codification until nearly a thousand years had passed. 

10. Future Progress of Law. Legislation and Interpre- 
tation; the Legislative Assemblies. 

For the future the progress of law was to depend on the two 
processes of legislation and interpretation. The legislative assemblies 
were those of the Populus and the Plebs. The Populus, which 
comprised the whole of the Koman people, Patricians as well as 
Plebeians, met, either by centuries, as the Comitia Centuriata, or 
by tribes, as the Comitia Tributa, under the presidency of a Consul 
or Praetor. 

The Comitia Centuriata was an assembly that had grown out of the 
army-organization of the whole Eoman people. It was the whole 
Host or Exercitus expressing its political will. It was for this 
reason that the military unit (the centuria) was the voting unit. 
And this was also the original reason why we find in this assembly 
the division into classes, or aggregates of citizens grouped together 
on the basis of a particular property qualification ; for the different 
types of military service were originally determined by degrees of 
wealth. But the element of wealth in this assembly, which is 
exhibited by the division into classes, soon gained a political 
significance. The voting power of the classes differed considerably. 
That of the wealthy was greater than that of the middle-class, 
and that of the middle-class far in excess of that of the poor. Thus 
the Comitia Centuriata was always assumed to have something of an 
aristocratic character ; and the change which its constitution under- 
went during the Kepublic was at least partly directed by an effort to 
modify this character. The scheme recognized five classes, the 
census of each being (in terms of the later assessment of the 
historical period) respectively 100,000, 75,000, 50,000, 25,000, and 
11,000 (or 12,500) asses. The first class contained eighty centuries, 
the second, third, and fourth, twenty each ; the fifth, thirty. Thus the 
centuries of the first-class were almost equal to those of the four other 
classes put together. The weight of aristocratic influence may be 
still more fully realized if we remember that the corps of Koman 
Knights (centuriae equitum equo publico) formed eighteen centuries 
in this assembly, and that the mass of citizens whose property fell 
below the minimum census were grouped in a single century. The 
collective vote of the first class and the knights was represented by 
ninety-eight centuries ; the collective vote of the whole of the rest of 
the community (including four or five centuries of certain professional 
corporations connected with the army, such as the Fabri) was 



xxvi HISTORICAL INTRODUCTION 

represented by ninety-five or ninety-six centuries \ Thus the upper 
classes in the community possessed more than half the votes in this 
assembly. 

A modification in the structure of the Comitia Centuriata was 
subsequently effected, which had the result of giving a more equal 
distribution of votes. No precise date can be assigned for the 
change ; but it has been thought not to be earlier than 241 B. c., 
the year in which the number of the tribes was raised to thirty-five 2 . 
The principle of the new arrangement was that the tribe was made 
the basis of the voting power of the classes. There is considerable 
divergence of opinion as to the method in which the centuries were 
distributed over the tribes ; but, according to the more usually 
accepted view which has been held by scholars from the seventeenth 
century onwards 3 , the five classes were distributed over all the 
tribes in such a manner that there were two centuries of each class 
one century of Seniores and one of juniores in a single tribe. Each 
class would thus have two votes in each tribe and seventy votes in 
all. The total number of centuries belonging to the five classes 
would be 350, of which the first class would possess but seventy 

1 The scheme was as follows : 

THE CAVALBT. 

18 centuries, chosen from the richer classes (Dionys. iv. 18), but probably 
with no fixed property qualification. 

THE INFANTRY. 

1st classis 100,000 asses (Liv. i. 43, Dionys. iv. 16, Polyb. vi. 23) ; 120,000 
asses (Plin. H. N. xxxiii. 3, Festus, p. 113). 
Seniores, 40 centuries ) OQ 
Juniores, 40 centuries ( 

2nd classis 75,000 asses (Livy and Dionysius). 
Seniores, 10 centuries ) OQ 
Juniores, 10 centuries \ 

8rd classis 50,000 asses (Livy and Dionysius). 
Seniores, 10 centuries ) 20 
Juniores, 10 centuries ) 

ith classis 25,000 asses (Livy and Dionysius). 
Seniores, 10 centuries ) ~ 
Juniores, 10 centuries \ 

5th classis 11,000 asses (Livy) ; 12,500 (12 minae, Dionysius). 
Seniores, 15 centuries ) 
Juniores, 15 centuries \ 

Fabri 2 centuries (voting with the 1st class, Livy ;\ 5 centuries (Livy). 
with the 2nd class, Dionysius). 

Accensi, cornicines, tibicines, 3 centuries, r 4 centuries (Dionysius). 
Livy ; 2 centuries, Dionysius (voting 
with the 4th class, Dionysius). 
Capite censi or Proletarii, 1 century (Livy). 1 century. 

Total 193 or 194 centuries. 

3 Cf. Liv. i. 43. He describes the new organization as existing ' post expletas 
quinque et triginta tribus.' Yet he does not say that it began its existence at 
that date. Mommsen (Staatsrecht, iii, p. 270) conjecturally assigns the change to 
the censorship of C. Flaminius (220 B.C.). 
8 This system was first suggested by Pantagathus, who died in 1657. 



THE LEGISLATIVE ASSEMBLIES xxvii 

votes ; or, if we add the other centuries of knights (18), of corporate 
bodies such as the Fabri (4), and of Proletarii (1), we find that the 
first class and the knights commanded but eighty-eight votes out of 
a total of 373 1 . This system, which lessened the influence of the 
wealthier classes, was temporarily abolished by Sulla in 88 B.C. 2 ; 
but it was soon restored, and there is every reason to suppose that it 
survived the Republic and formed the basis of the arrangement of the 
Comitia Centuriata under the Principate 3 . Although the Comitia 
was organized on this tribal basis for the distribution of voting power, 
the voting unit was still the century and not the tribe. The seventy 
centuries of each class voted in turn ; the decision of each century 
was determined by the majority of the votes of its individual 
members ; and the majority of the centuries determined the decision 
of the assembly. 

The Comitia Centuriata, although of the utmost importance in the 
structure of the* Roman Constitution as the body that elected the 
magistrates with Imperium and the censors, that exercised capital 
jurisdiction and declared war, ceased to be employed in the period of 
the developed Republic as an ordinary legislative assembly. It was 
difficult to summon and unwieldy in its structure, and its position 
as a legislative body came to be usurped by the two assemblies of the 
tribes. Yet, as we shall see *, it may have been held that legislative 
acts, which affected the fundamental principles of the Constitution, 
should be submitted to the centuries. 

The Comitia Tributa Populi had probably been instituted in 
imitation of the Plebeian Assembly of the Tribes. It was found 
convenient that the Populus should meet in this way as well as the 
Plebs ; and the Tribus the voting unit which had already been 
employed for assemblies of the Plebs was used for assemblies of 
the whole people. The Tribus was always a division of the territory 
of the Roman State in Italy, and the tribes grew in number as this 
territory increased until by the year 241 B.C. they had reached their 
final total of thirty-five. It is generally believed that originally only 
holders of land were registered as members of a tribe 5 ; but there is 

1 Mommsen's system (Staatsr. iii, p. 275) is different, and is based on the view 
that the description given by Cicero (de Rep. ii. 22. 39, 40) refers, not to the older 
arrangement, but to the reformed Comitia. Mommsen allows the 70 votes for 
the 70 centuries of the first class, but thinks that the 280 centuries of the other 
classes were combined so as to form only 100 votes. The total votes in the 
Comitia would thus be 70 + 100 + 5 (Fabri, &c.) + 18 (Knights); i.e. 193 in all, as 
in the earlier arrangement. 

2 App. Bell. Civ. i. 59. 

3 This Comitia seems still to have met for formal business as late as the third 
century A.D. At least Dio Cassius (Consul 219 or 220 A.D.) describes the flying 
of the flag from the Janiculum as a custom still surviving in his day (xxxvii. 28). 

4 P. xxix. 

' This was tke view taken by Mommsen (Staatsr. iii, pp. 182, 184). He held 

C 2 



xxviii HISTORICAL INTRODUCTION 

no sufficient evidence for this view, and it seems safer to conclude 
that, while every holder of land was registered in the tribe in which 
his allotment lay, every landless man was registered in the tribe in 
which he had his domicile. At a later period registration became 
more arbitrary, and had little or nothing to do with the residence of 
the person registered. The censor enrolled individuals in tribes at 
his pleasure ; usually he entered a man in the tribe to which his 
father had belonged ; but he might, if he willed, transfer him from 
one tribe to another (tr-ibu movere). 

In an assembly organized by tribes (tributim) the vote of the 
majority of the members of a particular tribe determined the decision 
of that tribe, and the vote of a majority of the tribes the decision of 
the assembly. The Comitia Tributa Populi must have been 
instituted later than 471 B. c., which is the traditional date at which 
the Plebs began to meet by tribes J ; and it may have been in existence 
some twenty years later, at the date of the formation of the Twelve 
Tables 2 . The first evidence for it as a legislative assembly belongs 
to the year 357 B. c. s . In the later Republican period it was 
probably quite the most active of the legislative assemblies of the 
whole people. 

The Comitia Curiata, the oldest of all the Roman assemblies, 
whose structure was based on the ancient Curiae or Parishes of 
Rome, ceased in the historical period to be a true legislative assembly. 
It met only for the performance of certain formal acts, such as the 
lex curiata which ratified the Imperium of the higher and the Potestas 
of the lower magistrates 4 . For this purpose the thirty Curiae were 
in Cicero's day often represented by but thirty lictors 5 . The 
assembly may have been as scantily attended when it performed the 
formal acts vested in it when it met as the Comitia Calata 6 . In this 

(ii, p. 403) that Appius Claudius, the censor of 312 B.C., first included the 
landless citizens in the tribes (cf. Girard, Manuel, p. 31) ; but our authorities 
(Diod. xx. 46, Liv. ix. 46) only represent Appius Claudius as allowing citizens 
to be registered where they pleased, and as spreading the lower classes (humiles) 
over all the tribes. The definition which we possess of the Comitia Tributa 
(Laelius Felix ap. Gell. xv. 27) speaks of it only as an assembly at which the 
votes are given ' ex regionibus et locis.' 

1 Liv. ii. 56. Previously it had probably met by Curiae. Hence the tradition 
that the early tribunes were elected in the Comitia Curiata (Liv. I. c., Cic. ap. 
Ascon. fn Cornelian, p. 76). 

3 When the Tables enacted ' De capite civis nisi per maximum comitiatum 
. . . ne ferunto ' (Cic. de Leg. iii. 4. 11), this mention of the 'greatest Comitia' 
(i. e. the Comitia Centuriata) seems to imply the existence of a lesser Comitia 
with judicial powers ; and the latter could scarcely have been the Comitia 
Curiata of the period. 

3 Liv. vii. 16. 

4 For the application of the lex curiata to the minor magistracies, as well as 
to those with Imperium, see Messala ap. Gell. xiii. 15. 4 ' Minoribus creatis 
magistratibus tributis comitiis magistratus, sed Justus curiata datur lege.' 

6 Cic. de Leg. Agr. ii. 12. 31. 6 Gaius, ii. 101 ; Gell. xv. 27. 



THE CONCILIUM PLEBIS xxix 

capacity it was gathered under the presidency of the Pontifex 
Maximus for the inauguration of the Eex Sacrorum and the 
Flamines, and for the Detestatio Sacrorum the renunciation of pre- 
existing religious obligations which was made by a man who passed 
from his Gens, either by an act of Adrogatio or by transition from 
the patrician to the plebeian order \ 

The assembly of the Plebs 2 excluded the patrician members of the 
community, and continued to be organized by tribes. Its true 
designation was Concilium Plebis, Concilium differing from Comitia 
as a gathering of a part of the people differs from a gathering of the 
whole 3 . This assembly -is often spoken of by ancient writers as the 
Comitia Tributa ; but it differed from the Comitia Tributa Populi in 
two respects. It did not include Patricians, and it was presided over, 
not by a magistrate of the People, but by a magistrate of the Plebs. 
When it met for legislative purposes, it was presided over only by 
the Tribune of the Plebs. The legislative authority of the Concilium 
Plebis had developed steadily during the first two centuries of the 
Republic. At first this assembly could only pass ordinances binding 
on the members of the Plebs themselves. Then, by the Valeric- 
Horatian and Publilian laws (449 and 339 B.C.) it gained the right of 
considering and initiating proposals which affected the interests of 
the whole community ; this right being probably acquired and 
exercised by the creation of increasing facilities for bringing 
resolutions of the Plebs as petitions to the assemblies of the people, 
to be confirmed or rejected by the latter 4 . Since the Plebs came 
gradually to constitute the majority of voters in the assemblies of 
the people, these petitions must as time went on have been almost 
invariably confirmed. The distinction between Plebiscite and Leges 
must have been growing more and more formal and unreal when 
the LexHortensia(287 B. c.) enacted that henceforth Plebiscita should 
have the force of Leges 5 . From this time onwards there was no 
difference between the Populus and the Plebs in matters of legislation, 
except that it may have been held by some thinkers that fundamental 
changes in the Constitution, such as those introduced by Sulla, ought 

1 Gell. I c. * P. xxi. 

3 Laelius Felix ap. Gell. xv. 27 ' Is qui non [ut] universum populum, sed 
partem aliquam adesse jubet, non " comitia," sed "concilium" edicere debet.' 
See Mommsen, Staatsr. in, p. 149. 

4 Strachan-Davidson, starting from the view that Plebiscita were originally 
sent as petitions to the consuls and senate (cf. Dionys. x. 31), suggests that the 
Valerio Horatian law may have ' laid down that the consul must so consult the 
senate, or it may even have forbidden him arbitrarily to disregard a recom- 
mendation of the senate (should such be obtained) that he should put the 
question to the populus' ; and that the Publilian law ' may have struck out the 
intervening consultation of the senate, and may have required the consul to 
bring the petition of the plebs at once before the populus ' (Smith, Diet, of Antiq. 
ii, p. 439). s Gaius, i. 3 ; Pompon, in Dig. 1. 2. 2. 8. 



xxx HISTORICAL INTRODUCTION 

to be ratified by the Comitia Centuriata 1 . But in nearly all the 
spheres subject to the commands of the people, the Populus and the 
Plebs were equally competent ; a Lex could repeal a Plebiscitum and 
a Plebiscitum a Lex *. This dual sovereignty, which is one of the 
most curious of the theoretical features of the Koman Constitution, 
was rendered possible and harmless by the fact that the mass of the 
voters in all the different assemblies were composed of the same 
individuals, and by the central control exercised by the Senate over 
all magistrates, and therefore over all assemblies before which these 
magistrates introduced their proposals. The initiation of legislation 
was, in fact, during the days of Eepublican stability, in the hands of 
the Senate ; but, apart from the exercise of this authority, which had 
long had a de facto recognition, but was not recognized by law until 
the time of Sulla (88 and 81 B. c.) 3 , the Senate did not pretend to 
exercise legislative power during the Eepublic. In its own right 
it could only exercise certain powers approximating to those of 
legislation. We find it, for instance, fixing the rate of interest 4 ; 
but such an ordinance technically assumed the form merely of 
advice to the judicial magistrates as to the rates which they should 
recognize in their edicts. The Senate, however, exercised the power 
of dispensing individuals from the existing laws 5 ; and we find it 
also warning the community that some enactment which had passed 
the people was, on technical grounds, invalid, and was therefore not 
binding either on the magistrates or on any member of the State 6 . 

In few societies of the ancient world was the legislative power 
so unfettered as it was at Rome. The Romans drew no distinction 
between constitutional law and other laws ; the Roman assemblies 
could create new assemblies, could alter their own structure, could 
modify or even suspend the Constitution by granting enormous 
powers to individuals. There was no sphere of human interest 
outside their control ; their power of utterance was limited only by 
a respect for religious law 7 . We might, therefore, have expected 
that legislation would have been the chief path on which Roman 
law advanced to its maturity. But this expectation is disappointed, 
so far as the progress of the Jus Privatum is concerned. We do 
indeed find a certain number of statutes which deal with important 
matters of private law, such as the Lex Aquilia de Damno, the Lex 

1 We know, at least, that some of Sulla's legislation was effected through the 
Comitia Centuriata (Cic. pro Dom. 30. 79). 

Thus, Cicero was exiled by a Plebiscitum, but restored by a Lex Centuriata. 

App. Bell. Civ. i. 59. * Cic. ad Att. v. 21. 13. 

Ascon. in Cornelian, p. 58. 

Cic. pro Domo, 16. 41 ; Ascon. in Cornelian, p. 68. 

Hence the saving clause in enactments, ' Si quid sacri sancti est quod non 
jure sit rogatum, ejus hac lege nihil rogatur ' (Probus). Cf. Cic. pro Caec. 33. 95. 



INTERPRETATION BY THE MAGISTRATE xxxi 

Furia on testaments, the Lex Voconia on inheritances ; and it is also 
true that certain important changes in civil procedure were sanctioned 
by the people, the most far-reaching of these changes sing perhaps 
that effected by the Lex Aebutia, which helped to replace the Legis 
Actio by the Formula l . But the legislation referring to private law 
and civil procedure at Rome is in no way comparable in bulk to 
that which dealt with criminal and constitutional law. Even those 
Leges or Plebiscita that dealt with civil procedure, perhaps did little 
more than ratify a change that had been already accomplished in the 
courts, or carry this change a few steps further. And, as to the 
alterations in the material elements of private law, these alterations 
were determined to a far greater extent by interpretation than by 
legislation. 

11. Law as the result of Interpretation. Interpretation 
by the Magistrate. 

Interpretation at Rome assumed two forms. It was either the 
work of the magistrate or the work of the jurisconsult. The 
magistrate chiefly concerned with the interpretation of private law 
was the Praetor. The office of Praetor is said to have originated 
as a result of the Licinian laws of 367 B. c. 2 This new magistrate 
was created for the purpose of performing most of the judicial 
business of the Consuls, who, on account of the increasing complexity 
of political life, were found incapable of conducting the whole of the 
home and foreign affairs of Rome. For more than 120 years this 
single magistrate administered civil justice to citizens and aliens. 
At the close of this period (242 B.C.) a second Praetor was appointed 3 
whose duty it was to decide cases between aliens (Peregrini) and 
between citizens and aliens. The former (Praetor qui inter cives jus 
dicit) was known by the colloquial name of Praetor Urbanus ; the 
latter (Praetor qui inter peregrinos jus dicit) was known by the 
similarly abbreviated title of Praetor Peregrinus. 

Every magistrate at Rome was in the habit of notifying to the 
public the manner in which he meant to exercise his authority, or 
any change which he comtemplated in existing regulations, by means 
of a public notice (Edictum). In the case of magistrates who were 
merely concerned with administrative work, such notices were often 
occasional (edicta repentina) ; in the case of magistrates concerned 
with judicial business, they were of necessity valid for the whole 
period during which the magistrates held their office, and capable of 

1 P. xl. a Liv. vi. 42. 

3 Liv. Ep. 19. The date is not quite certain. Lydus (de Mag. i. 38) places the 
event in 247 B. c. See Mommsen, Staatsr. ii, p. 196. 



xxxii HISTORICAL INTRODUCTION 

transmission to their successors (perpetua et tralaticia) ; for juris- 
diction does not admit of occasional and isolated ordinances which 
have only a temporary validity. The edicts of the Praetors were 
necessarily of this latter type. Each new occupant of the office 
might admit rulings not recognized by his predecessors ; these 
rulings were forced on him by the fact that new and unexpected 
combinations in legal relations had been presented to his notice, or 
that the existing rules did not answer to a growing sense of equity. 
New rulings cannot be introduced into a system of law without 
affecting old ones. The fact that there was an edict gave the 
Praetor a chance of smoothing out anomalies, instead of exhibiting 
inconsistencies, in the law. The edict admitted of change and 
development ; but it was a change that was subtle and gradual, not 
violent and rapid. The process by which it was reached professed 
to be a process of interpretation. It was really creative work of 
a highly original kind. 

The Edictum of the Praetor *, in the sense in which this word 
is commonly used, is really a colloquial expression for the Album, 
or great notice-board exhibited by the Praetor, which contained 
other elements besides the Edicta in their true and proper sense. 
It contained the Legis Actiones and the Formulae of the Civil Law 
(Jus Civile) 2 , probably preceded by certain explanatory headings, but 
by no edict ; for the Praetor did not create the rulings on which 
these civil actions and formulae were based. But it contained 
as well the Formulae which were the creation of him and his pre- 
decessors the Formulae which were the product of what was known 
as 'Magistrate's Law' (Jus Honorarium); and each of these Formulae 
was no doubt preceded, at least eventually, by the Edictum or ruling 
in law, which might have grown out of the Formula, but finally 
served as its basis and justification. Thus the edictal part of the 
Album was really a series of separate Edicta, each edict being 
followed by its Formula ; it was regarded as being a supplement to 
that portion which specified the Actions of Civil Law ; and it really 
had this character of being a mere supplement in so far as 'honorary' 
actions were seldom granted where a 'civil' action would have 
sufficed. But its supplementary character was of a very far-reaching 
kind. Thus the edicts might take cognizance of cases not provided 
for by the civil law at all, they might replace the mechanism pro- 
vided by the civil law for attaining a legal end, and they might alter 
the character of the end itself. All these functions are summed up 
by Papinian when he says that the work of the Jus Praetorium was 
'to assist, to supplement, to correct the civil law for the sake of 

1 See Wlassak, Edict und Klageform. 2 P. xl. 



THE EDICTA PEKPETUA xxxiii 

public utility 1 .' The edict of the Praetor Peregrinus was necessarily 
still more of a substitute for the civil law than that of the Praetor 
Urbanus. For, since the Legis Actiones could not (at least in many 
cases) be employed by Peregrini 2 , he was forced to invent equiva- 
lents for these forms of action. 

The third Edictum Perpetuum which was valid in Eome was 
that of the Curule Aediles 3 . It was of no great content, since it 
was concerned exclusively with the jurisdiction over the market, and 
the control of public sites a jurisdiction and control which were 
possessed by these magistrates. For an edict in any way com- 
parable to those of the Praetors we must turn to the provinces. 
Here the governors (whether Proconsuls or Propraetors) issued 
notices of their intentions with respect to jurisdiction, similar to 
those of the Praetors at Eome as regards their permanent character 
and the possibility of their transmission, but peculiarly applicable to 
the particular governor's special sphere of administration. A special 
edict was issued for each separate province (thus we read of an 
Edictum Siciliense) * ; but this special character did not prevent 
certain inter-relations between the edicts of separate provinces. We 
know that the Provincial Edict might be prepared at Rome, before 
the governor went to his province 5 ; and although the man who pre- 
pared it (of course, with the assistance of professional lawyers), tried 
to model his rules as closely as possible on those of his predecessor 
in the province to which he was going, yet he might borrow im- 
provements which had been initiated by the late governor of some 
other province. Again, the same man might pass from one province 
to another, and, much as the circumstances of the separate spheres 
of government differed from one another, it is inconceivable that he 
should not have carried some of his favourite rules of procedure with 
him. A general conception of what a Provincial Edict should be 
like, must have grown up ; the differences between the edicts being 
probably those of matter rather than of form the matter being 
determined by the local customary law of the subject peoples, which 
Eome rigidly respected. Where there were striking differences of 
form, these must have been mainly due to the varieties of rights 
granted by the Charters of the different provinces (Leges Pro- 
vinciarum). It is obvious that, where much was granted by Charter, 
little was left to the discretion of the governor. Where the Charter 
granted only a few elementary rights, he had a much freer hand. 

1 ' Adjuvandi vel supplendi vel corrigendi juris civilis gratia propter utilitatem 
publicam ' (Papin. in Dig. 1. 1. 7. 1). 

2 It has sometimes been thought that Peregrini were wholly excluded from 
the use of the Legis Actio. See Girard, Manuel, p. 110. 

3 Dig. 21. 1 ; Cic. de Off. iii. 17. 71 ; Gell. iv. 2. 

4 Cic. in Verr. i. 45. 117. 5 Cic. ad Fam. iii. 8. 4. 



xxxiv HISTORICAL INTRODUCTION 

One important point in which the governor of a province differed 
from a Praetor at Rome, was that he was an administrative as well 
as a judicial official. Hence the Provincial Edict had to contain 
a good many rules of administrative law which were not to be 
found in its counterpart at Konie. This portion of the edict spoke 
about the financial relations of the states of the province to the 
Roman government and to its agents, and stated the rules which 
regulated the relations of the tax-gatherers (Publicani) to the tax- 
payers. The rest of the edict which took a definite shape, covered 
the procedure which the governor promised to apply for the recovery 
of certain rights by individuals rights such as those entailed in in- 
heritance or the seizure of a debtor's goods. These rules were based 
on those of Roman law; but they were mere outlines capable of 
adaptation to the local customs of the subject states. But there was, 
at least in certain provinces, a portion of the edict, still dealing with 
the rights of individuals, which assumed no definite shape. There 
were points on which the governor did not care to frame rules until 
he knew the emergencies which he would have to meet. He was 
content (at least Cicero was, when governor of Cilicia) with pro- 
mising that, in issuing decrees on such points, he would conform to 
the principles of the urban edicts 1 . 

12. The debts which this development of law owed to the 
Italian and provincial world. 

If we ask what was the great motive power which lay behind 
this development of law through interpretation by the magistrate, 
we shall find it to consist, partly in contact with foreign peoples ; 
partly (although probably in a less degree) in the new educational 
influences which were moulding the lives of the Roman nobles. 
The tendency to experiment and adaptation, to a disbelief in any- 
thing fixed and rigid, is thoroughly Roman ; but external circum- 
stances were very largely responsible for the particular lines on 
which this tendency was to move. The legal consequence of contact 
with foreign races is summed up in the phrase Jus Gentium. The 
word ' Gentes ' in this collocation means ' the world - ' ; and it is 
possible that, when the expression Jus Gentium was first formed, 

1 Cicero thus sketches the contents of the whole edict which he published as 
governor of Cilicia (ad Att. vi. 1. 15) : ' Unum (genus) est provinciale, in quo est 
de rationibus civitatum, de aere alieno, de usura, de syngraphis ; in eodem omnia 
de publicanis. Alterum, quod sine edicto satis commode transigi non potest, de 
hereditatum possessionibus, de bonis possidendis vendendis, magistris faciendis : 
quae ex edicto et postulari et fieri solent. Tertium, de reliquo jure dicundo 
afpatpov reliqui. Dixi me de eo genere mea decreta ad edicta urbana 
accommodaturum.' 

2 Clark, Practical Jurisprudence, p. 354. On the content of the Jus Gentium see 
Nettleship, Contributions to Latin Lexicography, p. 503 ; Mommsen, Staatsr. iii, p. 604. 



THE JUS GENTIUM xxxv 

Rome regarded herself as rather outside this world whose customs 
she was contemplating, although even her earliest practice showed 
an inner conviction that she was a very integral part of it indeed. 
The moment that she began to trade with the foreigner, whether in 
Italy, Sicily, or Africa, she must have seen that her own Jus Civile 
was an impossible basis for trading relations. If the Eoman had 
no liking to submit to the intricacies of the law of some other state, 
the foreign trader had equally little inclination to conform to the 
tedious formalities of Eoman law. Some common ground had to be 
discovered as the basis for a common court, which might adjudicate 
on the claims of Private International Law. This common ground 
was found in the Jus Gentium ; the common court was that of the 
Eecuperatores of early times *. The history of the Praetorship leads 
us to think that the Jus Gentium must have begun to exercise 
a modifying influence on Eoman law long before the middle of the 
third century B. c. ; for we have seen that for more than 120 years 
a single Praetor administered justice both to Gives and Peregrini 2 . 
A single magistrate therefore published and dealt with two distinct 
systems of law. But it would seem to be impossible that he could 
have kept the two absolutely distinct, especially when the simplicity 
and universality of the Jus Gentium stood in marked contrast to the 
complexity and singularity of the Jus Civile. The rigidity of the 
forms of Eoman law may have been shaken even at this early period. 
But when a second Praetor was appointed to frame a special edict 
for Peregrini, the Jus Gentium must have found a still more complete 
and systematic expression. The procedure by which the legal 
claims of aliens were asserted must have been more fully elaborated. 
This was the procedure by Formula, which was to furnish the proto- 
type for the method adopted by the Praetor Urbanus, and to replace 
the older procedure by Legis Actio in most of the Eoman courts of 
law. Nor can we ignore the influence of the Edictum Provinciale, 
although this came later and at a time when the typical elements in 
Eoman procedure had been fixed. Eome gained some ideas from 
the Hellenised East, as in early days she had gained some from 
Magna Graecia. It was probably from contact with the East that 
she gained the knowledge of such simple forms of written agree- 
ment as Syngrapha and Chirographa, and that she acquired her 
theory of Mortgage (Hypotheca). 

1 Festus, p. 274 : ' Keciperatio est, ut ait (Callus Aelius, cum inter populum et 
reges nationesque et civitates peregrinas lex convenit quomodo per reciperatores 
reddantur res reciperenturque, resque privatas inter se persequantur.' 

2 P. xxxi. 



xxxvi HISTORICAL INTRODUCTION 

13. The idea of the Law of Nature ; its influence 
on Slavery. 

The Jus Gentium could not pass from being a mere fact to being 
an ideal without gaining some theoretical justification for its existence 
and acceptance. This justification was found in the idea that it was 
a product of the Law of Nature. It is not improbable that the 
superior ' naturalness ' of the Jus Gentium to the Jus Civile had 
begun to appeal to the Eomans long before they had begun to be 
affected by Greek philosophic thought ; for we know the effect which 
was produced on the minds of the Greeks themselves by their early 
contact with foreign civilizations. They rapidly drew the conclusion 
that what was common to various countries existed by nature (<tio-), 
what was peculiar to a country existed by convention (v6(up) and 
the KOIVOS vofjios l or TO (j)variKov 8tK<uoi> 2 of the Greeks is practically 
identical with the Jus Gentium of the Eomans. Even to the 
primitive mind the universality of an institution implies its natural- 
ness. But it is very probable that the Stoic conception of Nature 
did, to the Roman mind, complete the train of thought and give 
a scientific stability to a vague impression. It was not, indeed, 
possible to identify the Jus Gentium with the Lex Naturae ; for a 
Jus cannot be the same as a Lex. But it might be regarded as the 
product of that Lex, as its concrete expression in human society. 
The immediate product, however, of the Lex Naturae is the Jus 
Naturale. The Jus Gentium tended, therefore, to be identified 
with the Jus Naturale ; and the identification seems to be complete 
except in one important point. According to the view finally adopted 
by the jurists, the Jus Naturale implies personal freedom ; for all 
men are born free in a state of nature s . But the Jus Gentium (the 
law of the civilized world) admits the institution of Slavery. In 
this point, therefore, the two are in conflict, and the Jus Naturale 
presents an even higher ideal of society than the Jus Gentium. The 
relation between the three types of Jus, known to the theory of 
Roman jurisprudence, may be expressed by saying that the Jus 
Civile is the Right of man as a member of a state, the Jus Gentium 
the Right of the free man, the Jus Naturale the Right of man 4 . 

The appeal to Nature on behalf of the slave is an index of the 
part which he was to play in the development of Roman law. 
Roman slavery cannot be judged solely either by the dismal picture 

1 Arist. Ehet, i. 13. a Arist. Eth. v. 7. 

3 ' Cum jure natural! omnes liberi nascerentur ' (Ulpian in Dig. 1. 1. 4). 

* See Muirhead, Historical Introduction to the Private Law of Rome, p. 281 : ' While 
the jus civile studied the interests only of citizens, and the jus gentium those of 
freemen irrespective of nationality, the law of nature had theoretically a wider 
range and took all mankind within its purview.' Compare Carlyle, Mediaeval 
Political Theory in the West, ch. 3 (' The Theory of the Law of Nature '). 






THEORY OF THE LAW OF NATURE xxxvii 

presented by the plantation system, or by the legal theory that the 
slave was a mere Thing (Res), a chattel, not a person. We must 
remember that the slave, often of an intelligence and culture superior 
to those of his master, and gifted with the practical genius and the 
capacity for detail characteristic of the Greek, was frequently an 
active man of business. We must remember too that the very fact 
that he was a chattel might be employed by the law as the basis for 
the theory that he was, for this very reason, an excellent Instrument 
of Acquisition. So essential was he to his master in his capacity of 
agent that the law was forced to recognize that he could be a party 
to an obligation. The obligation, it is true, could not be called 
legal ; it was only natural (Naturalis obligatio) ! ; but still it was an 
obligation that could benefit the master, without making that master's 
condition worse 2 . It was necessary, however, to protect other 
parties to these contracts ; and the Praetor gradually created a series 
of quasi-liabilities for the master of the trading slave. Such liabilities 
are expressed in the actions Quod Jussu, Tributoria, De Peculio, De 
in Rem Verso 3 . They were created in the interest of the master as 
well as in that of the other party to the contract ; for without these 
guarantees slave-agency would have become impossible. In the 
history of agency the slave plays a distinguished part ; and the part 
that he plays is formally justified by the view that he is the 
possessor of Natural Rights. 

14. Interpretation by the jurisconsults. 

All these new influences on Roman law, although they found their 
most marked expression in the edicts of the magistrates, were also 
absorbed by that Professional Jurisprudence which gives us the 
other aspect of the science of Interpretation. It may have been 
the more important aspect ; for the teaching of the schools, and the 
advice of jurisconsults, no doubt did much to stimulate and guide 
the activity of the magistrates. We are told that the influence of 
skilled lawyers was for a very long time represented by the College 
of Pontifices. Even after the publication of the Twelve Tables and 
the revelation of the forms of Action (448, 304 B.C.), and during the 
period when secular was becoming more and more divorced from 
religious law, the knowledge of jurisprudence was, in virtue chiefly 
of the familiar fact that professions once associated are not easily 
separated, exhibited mainly in the person of the Pontifex Maximus ; 

1 Ulpian in Dig. 44. 7. 14 : ' Servi ... ex contractibus . . . civiliter . . . non 
obligantur ; sed naturaliter et obligantur et obligant.' 

a ' Melior condicio nostra per servos fieri potest, deterior fieri non potest ' 
(Gaius in Dig. 50. 17. 133). 

3 Gaius, iv. G9--74 ; Justin. Inst. iv. 7. 



xxxviii HISTORICAL INTRODUCTION 

and the men who held this office still furnished for centuries the 
leading names to Roman jurisprudence. At first the science was 
imparted with an air of mystery ; the advice was occasional and 
elicited only by special request. But finally the profession of law 
on the part of the Pontiffs became more open and more systematic. 
The first of these who taught the science publicly is said to have 
been Tiberius Coruncanius 1 (circa 280 B.C.), who was also the first 
plebeian Pontifex Maximus. Lastly, the stage of written com- 
mentaries was reached. These commentaries were stimulated by 
the increasing difficulty of interpreting the language and meaning 
of the Twelve Tables. The earliest commentator on this code who 
is known to us, was Sextus Aelius Paetus, consul in 198 and censor 
in 193 B.C. He busied himself with the interpretation of the legal 
difficulties connected with the Tables, and published a work called 
Tripertita, which gave in three divisions the text of the Tables, an 
explanation of each ordinance, and the form of action applicable to 
the cases which these ordinances raised 2 . His later contemporary, 
Acilius, seems also to have been a legal commentator s . An ex- 
planation of the obsolete language of the Tables was, so far as we 
know, first attempted by the great philologist Lucius Aelius Stilo 
Praeconinus, who was born about 154 B.C.* One of the results of 
the work of these commentators was that the text of the Tables, as 
it appeared in their editions, became the recognized, and in fact the 
only, text for all subsequent ages ; for it seems quite clear that the 
later commentators, as for instance Gaius, had no knowledge of any 
antique copy of the Tables, engraved on metal and posted up in 
some public place 6 . But there was another reason why a knowledge 
of the Tables, in their original form, was becoming decadent even 
during the period of the later Eepublic. The Praetor's Edict, as 
a living source of law, was superseding the ancient Code. Juristic 
investigation was grappling with present problems and did not care 
to concern itself with the antique. The Tables had been explained ; 
now they were to be expanded. But the expansion came with the 
edict, and with the creative jurisprudence which was a product of 
the new Greek culture and the extension of the Roman Empire. 
The founders of this scientific jurisprudence, whose labours were to 
be perpetuated by the lawyers of the Principate, were Marcus Junius 
Brutus, Marcus 6 Manilius and Publius Mucius Scaevola, all of whom 

1 Pompon, in Dig. 1. 2. 2. 38. 

2 Pompon. 1. c. ; cf. Cic. de Leg. ii. 23. 59 ; de Or. i. 56. 240 ; Brut. 20. 78 ; de Rep. 
i. 18. 30. 

3 Cic. de Leg. ii. 23. 59 ; de Amic. 2. 6. He is called Atilius by Pomponius (I. c.). 
See Scholl, Legis duodecim tabularum reliquiae, p. 25. 

4 Teuffel-Schwabe, GeschicMe der rbmischen Litteratur, 125 ; SchOll, op. cit. p. 26. 
s Scholl, op. cit. pp. 11, 15. 6 Sometimes written ' Manius.' 



JURISCONSULTS OF THE REPUBLIC xxxix 

flourished about the middle of the second century B. c. They were 
followed by a long line of distinguished successors to the close of 
the Kepublic 1 . The study of law was becoming professional, but it 
was not confined to a body of men who made jurisprudence the sole 
business of their lives 2 . The knowledge and exposition of law was 
an incident in the career of some of the greatest statesmen of the 
day. It may have been their ruling, but it was by no means their 
sole interest ; and sometimes the fruitful experience of a lifetime 
spent in an active forensic and political career was given to admiring 
students during the repose which marked the closing years of the 
statesman's life 3 . The rewards of the profession were purely 
honorary ; the only payment was repute, gratitude, or political sup- 
port ; and the practical utility of the jurists was as much valued as 
their theoretical knowledge. They pleaded or gave advice to pleaders ; 
they gave a scientific precision to the formulae of legal business ; and 
they returned replies (responsa) to the questions of litigants, magis- 
trates, or judices on legal points which arose whether before or in 
the course of the hearing of a case 4 . It was through these replies, 
which were given sometimes in private, sometimes in the Forum 5 , 
that the jurisconsults became great oral and literary teachers. The 
replies were sometimes given in writing 6 ; but, even when verbal, 
were often collected into books ; and the audience which received 
them was by no means confined to those who were primarily in- 
terested in the answers. The young were admitted to the consulta- 
tions 7 , and the consultation often closed with a disputation 8 . This 
practice led eventually to systematic teaching ; disciples attached 
themselves to a particular exponent of law, who gave some a pre- 
liminary training and directed others in a course of study that was 
more advanced 9 . In no respect was this system of education re- 
gulated by the State. No teacher was more authentic than another. 

1 See Roby, Introduction to the Study of Justinian's Digest, pp. 95-124. 

a On the characteristics of the study of law during this period see Kriiger, 
Oeschichte der Quellen und Litteratur des romischen Eechts, pp. 48 foil. 

3 Cic. de Or. i. 45. 199-200, ' Quid est enim praeclarius, quam honoribus et rei 
publicae muneribus perfunctum senem posse suo jure dicere idem, quod apud 
Ennium dicat ille Pythius Apollo, se esse eum, unde sibi, si non populi et reges, 
at omnes sui cives consilium expetant . . . Est enim sine dubio domus juris- 
consulti totius oraculum civitatis.' 

* These three functions are summed up by Cicero in the words agere, cavere, 
respondere. See Cic. de Or. i. 48. 212 : ' Sin autem quaereretur, quisnam juris- 
consultus vere nominaretur, eum dicerem, qui legum et consuetudinis ejus, qua 
pi'ivati in civitate uterentur, et ad respondendum et ad agendum et ad cavendum 
peritus esset.' Cf. Kriiger, op. cit. p. 49. 

5 Cic. de Or. iii. 33. 133. 

6 Cic. pro Mur. 9. 19. Cicero here describes the ' urbanam militiam respon- 
dendi, scribendi, cavendi.' The interpretation that I have given to scribere is 
that of Kriiger, op. cit. p. 50. Cf. Cic. Top. i. 1. 4. 

7 Cic. Orator, 41. 142, 42. 143. 

' Cic. Top. 14, 56. Kriiger, op. cit. p. 51. 



3d HISTORICAL INTRODUCTION 

Controversy grew and flourished 1 . The only proof of the validity 
of an opinion was its acceptance by a court. But even this was but 
a slender proof; for different Praetors or Judices might be under the 
sway of different jurists. It required a single superior court and a 
single controlling authority (both of which were found in the Princi- 
pate) to guide the stream of legal opinion into narrower and more 
certain channels. 

Amidst this stream of interpretation we discern one attempt to 
give a fixity to at least a part of Eoman law. Ofilius, a Koman 
knight of the period of Cicero and Caesar, was the first to reduce 
the Praetor's Edict to some kind of system 2 . It is probable that 
a still greater work of revision was at one time projected for this 
jurist ; for we are told that Caesar, amidst his ambitious schemes 
for the regeneration of the Roman world, conceived the idea of 
making a digest of the Roman law 3 . Had he lived to carry out 
this scheme, it is probable that Ofilius would have been entrusted 
with the work. 

15. Reforms in Procedure effected during the later period 
of the Republic. 

The progress effected during this period in the theory of law was 
accompanied by a great reform in procedure. From about 150 B. c. 
the process both of the civil and criminal courts began to assume 
a form which was final for the period of the Republic, and which 
was supplemented, but not altered, during the greater part of the 
period of the Principate *. In the domain of Civil Procedure, a Lex 
Aebutia gave some kind of formal sanction to the practice by which 
the Praetor tended to substitute the simpler Formula for the more 
complex Legis Actio 8 . The Formula had perhaps first been employed 
in the statement of cases for Peregrini. Its utility commended its 
use for cases in which Roman citizens alone were involved. The 
Praetor Urbanus employed it for his honorary jurisdiction ; it was 
then transferred (doubtless by the Lex Aebutia) to the civil law as 
an alternative, in most cases, to the Legis Actio. We cannot say in 

1 Cic. de Or. i. 38. 173 ; 57. 241, 242 ; pro Mur. 12. 27 ; 13. 28. 

2 Pompon in Dig. 1. 2. 2. 44 : ' De jurisdictione idem (Ofilius) edictum praetoris 
primus diligenter composuit.' 

3 Suet. JwZ. 44. Ofilius' intimacy with Caesar is noticed by Pomponius (Dig. I. c.). 

4 The civil procedure of the judicia ordinaria survived the Principate. When 
the criminal procedure of the quaestiones perpetuae disappeared is unknown. 
Their disappearance has been placed as early as the close of the first century A. D. 
(Geib, Criminalprocess, pp. 392-397). But it has been thought that Dio Cassius 
(lii. 20, 21) implies their existence in his own time, at the beginning of the 
third century A. D. 

4 Gaius, iv. 30 ; Gell. xvi. 10. 8. The date of the law is unknown, but is not 
likely to be earlier than 150 B. c. Girard (Manuel, p. 987) finds indications for 
placing it between 149 and 126 B. c. 



REFORMS IN PROCEDURE xli 

what form the alternative was presented. We know that the 
law must have exempted certain kinds of jurisdiction from the 
Formula the jurisdiction, for instance, of the Centumviral and 
Decemviral courts. But it may have allowed the Praetor to 
substitute the one procedure for the other in most spheres of civil 
jurisdiction ; and, where the Praetor still permitted the Legis Actio 
and the Formula to stand side by side in his Album, it may have 
given the litigants a choice between the two. The two methods of 
procedure still exist side by side in Cicero's time ; but the formulary 
procedure is demonstrably the more general of the two. 

About the time when this reform was being effected, an attempt 
was made to create a method of criminal procedure, simpler and 
more effective than that of a trial before the People. The type 
on which the new criminal courts were constituted was furnished in 
the main by Civil Procedure. Cases of extortion (Repetundarum), 
in which compensation was demanded for a delict, were first tried 
before a Praetor and Recuperatores. This was a mere provisional 
arrangement initiated by the Senate for the benefit of the provincials l . 
But the system, or one closely modelled on it, was perpetuated by 
the Lex Calpurnia Repetundarum of 1 49 B. c. 2 , and gradually these 
recuperatorial boards grew into great panels of Judices, the qualifica- 
tions for the jurors being specified by judiciary laws (Leges Judi- 
ciariae). Finally, almost the whole sphere of the criminal law was 
embraced by a series of enactments which created standing courts 
(Quaestiones Perpetuae, or Judicia Publica), each for the trial of 
a special offence or a group of related crimes. All of these courts 
followed the same model. In each a President (Quaesitor), who was 
generally a Praetor, sat with a bench of Judices who pronounced 
a penalty fixed by the law which had constituted the court. From 
the judgment of these Judices there was no appeal to the People. 

16. The Creation of the Principate Changes in the 
Sources of Law. 

The change from the Republic to the Principate introduced no 
very sudden alterations in the sources of law or the methods of 
procedure. Both, as we shall see, were supplemented by new 
creations ; but up to the time of Gaius it was possible to appeal to 
the Republican system as the one that underlay the legal life and 
the judicial organization of Rome 3 . All that was added by the 

1 Liv. xliii. 2. a Cic. Brut. 27. 106 ; de Off. ii. 21. 75. 

3 Yet it is to be observed that Gaius, in his statement of the sources of law 
(i. 2), puts those which were antiquated in his time (Lex and Plebiscitum) on 
the same level as those which were living. The statement is juristically correct, 
in so far as the body of Koman law in his time had sprung from all these 



xlii HISTORICAL INTRODUCTION 

Principate was in the nature of an excrescence one that was 
probably healthy in its effects, in spite of the fact that it does seem 
to have limited to a certain extent the creative activities of juristic 
thought. The birth of the Principate was not conditioned by strictly 
legal necessities. There seems to have been little sense that a single 
controlling force was needed for the guidance of the law of Rome, 
Italy, and the provinces. The justification for the Principate was 
found in the fact that a single controlling power was necessary for 
the command of the army and the routine administration of the 
provinces. But it was impossible to create such a power without 
bringing it into some contact with every department of the State. 
The guidance of legislation and judicature by an individual will was 
a necessary outcome of the new order of things ; and it is possible 
that this guidance was needed. There is a stage in the history of 
law where liberty of interpretation may lead to perplexing un- 
certainty, and there is a stage in the history of any national judicial 
organization where certain radical methods are necessary to adapt 
it to new needs. The Principate gave a definiteness to law, but 
a definiteness that was in no sense illiberal. On the contrary, it 
prevented law from being narrowly Roman as effectually as it 
checked it from recklessly absorbing foreign elements. It adapted 
law to provincial needs by expanding, but not impairing, its national 
character. At the same time it widened the scope of jurisdiction by 
methods which we shall soon describe methods which seem to have 
increased the efficiency at least of the civil courts at Rome, and 
which brought the provincial world into closer judicial relations 
with the capital. The changes effected both in legislation and in 
jurisdiction were gradual and progressive ; and, though they were 
from a formal point of view initiated by the will of individual 
monarchs, it is important to remember that, at Rome as elsewhere, 
monarchical power is the outcome of the concurrence of many 
individual wills. For the sake of convenience we are accustomed 
to treat the Princeps as the chief source of law and the chief 
influence on jurisdiction. Sometimes a purely personal power of 
this type may have been realized for a while, although when so 
realized it always had a flavour of tyranny 1 . But as a rule, when 
we think of the Princeps as a source of law and justice, we should 
be thinking of his judicial advisers and assessors. The trained 

sources ; but the method of statement is likely to convey a false historical 
implication. Cf. pp. xlv-xlviii. 

1 We may instance the view of Caligula on the jus respondendi of the juris- 
consults. Suetonius says (Calig. 34) ' De juris quoque consultis, quasi scientiae 
eorum omnem usum aboliturus, saepe jactavit " se mehercule effectxirum ne 
quid respondere possint praeter eum."' This was a desire that found no 
fulfilment during the Principate. 



THE PRINCIPATE xliii 

jurist still plays a leading part in legal progress. His control of 
the Princeps, and the Princeps' control of him, must both be taken 
into account, although the actual extent of the respective influences 
of the administrator over the jurist and of the jurist over the adminis- 
trator can never be determined for any given act or for any given 
moment of time. 

A division of power of this type is perhaps common to all 
monarchies. But in the Roman Principate, which was not tech- 
nically a monarchy, we find it expressed in yet another way a way 
which is of more importance theoretically, although perhaps of less 
practical import. It is expressed in the form that the Princeps is 
merely the ' extraordinary magistrate ' of a Republican Constitution. 
By an ' extraordinary magistracy ' is meant a magistracy formed by 
an accumulation of functions, each of which is usually exercised by 
a particular magistrate. The chief powers with which the Princeps 
was invested were the Proconsulare Imperium conferred by the 
Senate, and the Tribunicia Potestas conferred on a recommendation 
of the Senate in a formal meeting of the People. The Proconsulare 
Imperium was technically valid only outside the limits of Italy ; but, 
as it was absolutely necessary that the Princeps should possess 
Imperium within Rome, he was specially exempted from losing his 
Imperium by his presence within the city. The effect of this 
exemption probably was to create for the Princeps a kind of consular 
Imperium in Rome and Italy. But even this device was not sufficient 
to secure for him the authority which he required as a moderator of 
the whole State. The Proconsulare Imperium and the Tribunicia 
Potestas required to be supplemented by a number of separate powers 
.conferred by special grants. These grants must originally have been 
made by special laws and decrees of the Senate that were passed at 
various times ; but the practice seems soon to have been adopted of 
embodying them in a single enactment, which was submitted to the 
formal assent of the People at the time when the Proconsulare 
Imperium and the Tribunicia Potestas were conferred. A fragment 
of such an enactment is the extant Lex or Senatusconsultum which 
enumerates powers conferred on the Emperor Vespasian at his 
accession 1 . The rights of the Princeps enumerated in this document 
are of a very heterogeneous kind they include the powers of making 
treaties, extending the pomerium of the city, commending candidates 

1 The document is to be found in the Corpus Inscriptionum Latinarum, vi. 
n. 930, and in Bruns, Fontes Juris Romani Antiqui, v. 19. It describes itself as 
a law (1. 34 'Si quis hujusce legis ergo,' &c. ), and is generally known as the 
Lex de imperio Vespasiani. But its wording bears more analogy to that of 
a Senatusconsultum. It seems to be a decree of the Senate which is intended 
to be submitted to the People for their formal assent. See Mommsen, Staatsr. ii, 
p. 878. 

da 



xliv HISTORICAL INTRODUCTION 

for office, and issuing edicts as interpretations of law, human and 
divine ; and, important as they are, they have no direct connexion 
with either the Proconsulare Imperium or the Tribunicia Potestas. 
Some of the most imposing powers of the Princeps were dependent 
on neither of these two sources, but were contained only in this 
general Lex ; and, as fresh prerogatives were added to the Principate, 
the Lex would grow in bulk and importance. Some development of 
this kind may account for the fact that Gaius and Ulpian both speak 
of the Princeps receiving his Imperium through a Lex \ Such an 
expression could not have been used of the early Principes ; for the 
Proconsulare Imperium was received through a decree of the Senate ; 
but it is possible that in the course of time the general Lex, as 
enumerating the majority of the prerogatives of the Princeps, came 
to overshadow the other sources of his authority. 

Since the authority of the Princeps was built up in this gradual 
and unsystematic way, it is quite impossible for the modern inquirer 
to determine with precision the sources of the exercise of his different 
powers. But a rough estimate may be made of five distinct kinds 
of prerogative and of the activities flowing from each. (1) With the 
Imperium were connected the control of the army and the provinces, 
the right of declaring war and of making treaties, the power of 
conferring Roman citizenship or Latin rights, civil and criminal 
jurisdiction, and the general power of legal interpretation. (2) The 
Tribunician Power, besides making the Princeps sacrosanct, gave 
him the right, exercised during the earlier period of the Principate 
but afterwards neglected, of initiating measures in the Assembly of 
the Plebs, and also the right of transacting business with the Senate, 
although this second right was extended by special grants. The 
power of veto, inherent in the Tribunicia Potestas, gave the Princeps 
a control over all the other magistrates of the State, enabled him to 
exercise over the jurisdiction of the Senate a power akin to that of 
pardon, and probably formed the basis of much of his appellate 
jurisdiction. (3) Two of the Principes, Claudius and Vespasian, 
were invested with the temporary office of censor, and Domitian 
declared himself censor for life. His example was not followed by 
succeeding rulers ; but the most important of the functions of the 
censors the revision of the lists of Senators and Knights continued 
to be a part of the admitted prerogatives of the Princeps. Akin to 
this right was that of creating Patricians, which had been conferred 

1 Gaius, i. 5; Ulpian in Dig. 1. 4. 1: 'Quod principi placuit, legis habet 
vigorem ; utpote cum. lege regia, quae de iinperio ejus lata est, populus ei et in 
eum omne suum imperium et potestatem conferat.' It has been questioned 
whether the expression lex regia was in vogue even in the time of Ulpian, and it 
may be an interpolation. The expression is found in Justinian (Cod. 1. 17. 1. 7). 
See Mommsen, Staatsr. ii, pp. 876, 877. 



LEGISLATION DURING THE PRINCIPATE xlv 

by law on Caesar and Augustus, had been exercised by Claudius and 
Vespasian as censors, and finally became a right inherent in the 
Principate itself. (4) The Princeps, besides being a member of all 
the great religious colleges, was, as Pontifex Maximus, the official 
head of the state-religion, and was invested by law with the power of 
executing ordinances which were to the interest of the religious life 
of the community 1 . (5) Supplementary powers, which cannot be 
described by a common name or connected with any definite office, 
were granted to the Princeps. Some of these were means by which 
his control over the magistrates and the Senate was increased. Such 
were the rights of securing the election of certain candidates for 
office by means of a recommendation (Commendatio), and of exercising 
powers in relation to the Senate superior to those possessed by the 
other magistrates. 

An authority thus endowed could not fail to exercise a strong 
directing influence on the sources of law and the methods of 
procedure. The influence asserted itself from the first ; yet for at 
least two centuries there was always a formal, and sometimes a real 
recognition of the theory on which the Principate was based the 
theory of a dual control exercised by the Princeps on the one hand, 
by the usual organs of the Kepublic on the other. The chief organ 
by which the Kepublic was represented was now no longer the 
People, but the Senate ; and the dual sovereignty or ' Dyarchy,' 
as it has been called can be illustrated chiefly by the division of 
authority between the Princeps and the Senate. 

As regards the sources of law, even the utterances of the People 
were for some time elicited. Leges and Plebiscita specimens of 
which are to be found in the Leges Juliae of Augustus, the Lex 
Aelia Sentia belonging to the reign of the same monarch, the Lex 
Junia Norbana of the reign of Tiberius, the Leges Claudiae of the 
Emperor Claudius continued to be passed during the early 
Principate. The last trace of legislation belongs to the reign of 
Nerva (96-98 A.D.) 2 . 

Even before legislative power had been surrendered by the Comitia, 
it had begun to pass to the Senate ; and down to the third century 
A.D., such general ordinances as tended to alter the fundamental 
legal relations of Eoman citizens to one another were generally 
expressed in the form of Senatusconsulta. The Senatusconsultum 
was a true source of the Jus Civile. Yet it did not attain the formal 
structure, or always adopt the imperative utterance, of a law. Its 
utterances are often couched in an advisory form 3 , as though the 

1 Lex de Imp. Vesp. 1. 17. 

2 Dig. 47. 21. 3. 1. 

3 Thus the S. C. Vdkianum begins : ' Quod Marcus Silanus et Velleus Tutor 



xlvi HISTORICAL INTRODUCTION 

Senate of this period, like that of the Kepublic, were merely giving 
counsel to a magistrate. Gaius attributes to these decrees 'the 
binding force of law ' ; and it does not seem that the early doubts 
as to whether the Senate could pass ordinances immediately binding 
on the community l survived the beginning of the Principate. 

The Praetor's edict still continued to be issued ; nor are we told 
that the edictal power was in any way infringed during the early 
Principate. But there are two considerations which would lead us 
to conclude that it was seriously weakened. The first is based on 
the fact that edictal power in the highest degree was conferred by 
law on the Princeps himself 2 ; and the existence of two interpreters 
of the civil law possessing equal authority is almost inconceivable. 
The second consideration rests on the probability that the Praetor's 
rulings in detail were subject to the veto of the Princeps. A new 
ruling was often the basis for a new formula and a new edict, and 
if the first of these was inhibited, its successive developments could 
not be realized. Progressive legislation was effected elsewhere, in 
decrees of the Senate and in the imperial constitutions ; and the 
final sign that the creative work of the Praetors was a thing of the 
past was given when, in the reign of Hadrian (117-138 A.D.), and 
therefore probably in the lifetime of Gaius, the work which Ofilius 
had begun s was perfected by the jurist Salvius Julianus. He 
reduced the edict to a fixed and definite system 4 ; and from this 
time onward the Edictum Perpetuum was, in its essential features, 
unalterable. Absolute validity was given to the new redaction 
by a Senatusconsultum introduced by a speech from the Emperor 
Hadrian, who declared that any new point, not contemplated in 
the edict, should be decided by analogy with it 6 . It is probable 
that such new points were still mentioned in successive edicts ; for 
it is certain that the edict still continued to be issued annually. 
The work of Julian could, therefore, never have been meant to be 
unalterable in a literal sense. Such invariability would indeed have 
been impossible ; for, though changes in law were now beginning to 
be made chiefly by ordinances of the emperor, yet these very changes 
would neeer jitate corresponding changes in the details of the edict. 

consules verba fecerunt . . . quid de ea re fieri oportet, de ea re ita censuere.' 
See Kriiger, op. cit. p. 82. 

1 Gpjius, i. 4. Cf. Ulpian in Dig. 1. 3. 9 ' Non ambigitur senatum jus facere 
posse. Papinian (Dig. 1. 1. 7) recognizes senatusconsulta as a source of jus. 

2 Lex de Imp. Vesp. 1. 17 ' Utique quaecunque ex usu rei publicae . . . censebit, 
ei agere facere jus potestasque sit.' 

3 P. xl. 

4 Victor, Caes. 19 ' Primus edictum quod varie inconditeque a praetoribus 
promebatur in ordinem composuit.' Eutrop. viii. 17 ' Perpetuum conposuit 
edictum.' 

8 Cod. 1. 17. 2. 18 ; Constitution At'Scwcw (prefixed to Digest), 18. 



THE PKINCEPS AS A SOURCE OF LAW xlvii 

The fixity of Julian's edict was to be found both in its structure and 
in its leading principles ; in the order in which the rules of law 
were marshalled and in the general significance of these rules. It 
has been supposed that Julian's work was not confined to the edict 
of the Praetor Urbanus, but that he dealt also with the edicts of the 
Praetor Peregrinus and of the Curule Aediles J . He may have 
treated these edicts separately ; but the three may have been 
combined in a single comprehensive work which was spoken of as 
'The Edict 2 .' 

By the side of these sources of law which survived from the 
Kepubtic stood the new authority, the Princeps. He was not 
regarded as, in the strict sense, a legislative authority ; but he or his 
advisers exercised a profound influence on the growth and structure 
of law in virtue of his power of issuing Edicts, Decrees, Eescripts, and 
Mandates. The Edictum of the Princeps was, like that of the 
Praetor in the Kepublic, technically an interpretation of law, but, like 
the Praetor, the Princeps could supplement and alter under the guise 
of interpretation : and his creative power, as exercised by his edictal 
authority, was very great. An edict of an emperor did not necessarily 
bind his successors ; but, if it had been accepted as valid by a series 
of emperors, it was considered to be a part of the law, and its 
subsequent abandonment had apparently to be specified by some 
definite act of repudiation 3 . The Decretum was a judgment of the 
Princeps as a court of justice ; and, unless it was rescinded in a 
succeeding reign, its validity as a precedent seems to have been 
unquestioned. The Rescriptum was technically an answer to a letter 
by which the advice of the Princeps was sought ; but the word soon 
came to be used for the Princeps' letter (Epistola) itself. It contained 
instructions either on administrative or on judicial matters. In its 
first capacity, it was addressed to some public official subordinate to 
the emperor ; in its second, it was addressed either to the judge or to 
the litigant. It was elicited either as an answer to the consultation 
(Consultatio) of an official or a judge who hesitated as to his course of 
procedure, or as a reply to a petition (Libellus, Supplicatio) of one of 
the parties to a suit. The Rescript which dealt ^ith judicial 
matters might settle a doubtful point of law by showing, or extending, 
the application of an existing principle to a new case. The Rescript 
was the most powerful instrument of law-making wielded by the 
Princeps. The definiteness of its form gave the opinion an authority 

1 We hear of the Edictum Aedilium in the Constitutions ' Omnem ' (4) and 
AeSwKev (5) prefixed to the Digest. 

2 It is possible that the common elements in the provincial edicts were 
reduced to a system at this time. Cf. p. xxxiii. 

3 Paulus (Dig. 28. 2. 26) uses the expression ' Jam sublato edicto divi August!,' 
a phrase which suggests something more than mere neglect. 



xlviii HISTORICAL INTRODUCTION 

which, once accepted by a successor, could not easily be questioned ; 
while the immense area over which these letters of advice were sent 
kept the Princeps in touch with the whole provincial world, and 
caused him to be regarded by the provincials as the greatest and 
most authentic interpreter of law. The Edicts, Decrees, and Rescripts 
came to be described by the collective name of ' Imperial Consti- 
tutions ' (Constitutiones Principum), and by the time of Gaius they 
were held to possess, in a uniform degree, 'the binding force of 
law 1 .' On a lower level, with respect to legal validity, stood the 
Mandatum. This was a general instruction given to subordinate 
officials, for the most part to governors of provinces, and dealt 
usually with administrative matters, although sometimes it had 
reference to a point of law. Such mandates might be, and often 
were, withdrawn by the Princeps who had issued them, or by his 
successor. Hence it was impossible to attach perpetual validity to 
their terms. But, when a mandate dealt with a precise point of law, 
and was renewed by successive emperors, it must have acquired the 
force of a Rescript 2 . 



17. Changes in Procedure under the Principate. 

The creation of the office of Princeps, and the extension of the 
authority of the Senate, exercised an influence on jurisdiction as 
well as on legislation. The two new features of the judicial system 
were the growth of extraordinary jurisdiction and the growth of 
Courts of Appeal. The name 'extraordinary' (extra ordinem) was 
given to all jurisdiction other than that of the ordinary civil* and 
criminal courts (Judicia Ordinaria) which had survived the Republic. 
It often dealt with eases not fully provided for by these courts ; and 
its chief characteristic was that the cognizance (Cognitio), both on the 
question of law and on the question of fact, was undertaken solely by 
the magistrate or by a delegate nominated by him (judex extra 
ordinem datus) 3 . In civil matters, the Princeps sat as such an 
extraordinary court, and either exercised, or delegated, jurisdiction 
in matters such as Trust or Guardianship. He might take other 

1 Gaius, i. 5. Cf. Ulpian in Dig. 1. 4. 1. 1 ' Quodcumque . . . imperator per 
epistulam et subscriptionem statuit vel cognoscens decrevit . . . vel edicto 
praecepit, legein esse constat. Haec sunt quas vulgo constitutiones appellamus.' 

a Thus the soldier's testament was created by a series of mandates (Dig. 
29. 1. 1). 

3 Such a delegate might be given by the consuls when exercising extraordinary 
jurisdiction (Gell. xii. 13. 1 ' Cum Romae a consulibus judex extra ordinem 
datus pronuntiare . . . jussus essem '). .Such a judex represented the magistrate 
more fully than the judex of ordinary jurisdiction. He was not tied down 
within the limits of a formula. 



NEW METHODS OF PROCEDUEE xlix 

cases, if he willed ; but his jurisdiction was always voluntary ; and, 
if he declined to act, the case went before the Praetor. In criminal 
matters, two high courts of voluntary and extraordinary jurisdiction 
were created that of the Princeps and that of the Senate. The 
Princeps might take any case, but often limited his intervention to 
crimes committed by imperial servants or by officers of the army. 
The jurisdiction of the Senate was especially concerned with offences 
committed by members of the upper ranks of society, or with 
crimes of a definitely political character. 

The system of appeal introduced by the Principate was of a 
complicated character, and many of its features are imperfectly 
understood. It seems that, at Kome, the Princeps could in civil 
matters veto, and perhaps alter, the decision of a Praetor, but could 
not annul the verdict of a Judex, except by ordering a new trial l . 
He could of course vary the decisions of his own delegates in matters 
of extraordinary jurisdiction. In criminal matters the Princeps 
does not seem to have had the power of altering the decisions of the 
Quaestiones Perpetuae ; but he could probably order a new trial 2 . 
There was technically no right of appeal from the Senate to the 
Princeps 3 ; but the Princeps could exercise what was practically a 
power of pardon by vetoing the decisions of the Senate in virtue of 
his Tribunicia Potestas. In the provincial world, the right of 
appeal was at first regulated in accordance with the distinction 
between Caesar's provinces and the provinces of the Roman people. 
From Caesar's provinces the appeal lay to Caesar ; from the other 
provinces it came to the Consuls and, at least if it was concerned 
with a criminal matter, was by them transmitted to the Senate. 
But we know that this system of dual jurisdiction was breaking 
down even in the first century of the Principate, and that the 
appellate jurisdiction of the Princeps was tending to encroach on 
that of the Consuls and Senate 4 . The extent to which it had broken 
down in the time of Gaius is unknown. But we know that, by the 
end of the second century A. D., the Princeps was the Court of 
Appeal for the whole provincial world. For this purpose he was 
usually represented by the Prefect of the Praetorian Guard. 

1 This was done by the fiction of In integrum restitutio. Cf. Suet. Claud. 14 
' (Claudius) iis, qui apud privates judices plus petendo formula excidissent, 
restituit actiones.' 

2 The Emperor Gordian is spoken of as -naKivZiKiav StSovs rots aS'ttcajs KaraKpiOtiai 
(Herodian, vii. 6. 4). 

3 Ulpian in Dig. 49. 2. 1. 2 ' Sciendum est appellari a senatu non posse 
principem, idque oratione divi Hadriani effectum.' There can be little doubt 
that the principle was confirmed, not created, by Hadrian. 

* Nero at the beginning of his reign in 54 A. D. professed a desire to restore 
the original principle (Tac. Ann. xiii. 4 ' Teneret antiqua munia senatus, 
consulum tribunalibus Italia et publicae provinciae adsisterent '). 



1 HISTORICAL INTRODUCTION 

18. The work of the Jurisconsults under the Principate. 

The official organs which made Roman law were now, as under 
the Republic, assisted by the unofficial or semi-official activity of the 
jurisconsults. Some of these teachers were now given public recog- 
nition as authoritative sources of law. We are told that Augustus 
granted the right to certain jurisconsults to respond under imperial 
authority ; and this practice was continued by his successors on the 
throne. Amongst the earlier of these patented jurisconsults was 
Masurius Sabinus, of the time of the Emperor Tiberius '. The 
granting of this privilege did not diminish the activity of the 
unpatented lawyers 2 , although it doubtless diminished their in- 
fluence ; but it gave the response of its possessor as authoritative 
a character as though it had proceeded from the emperor himself 3 . 
The response was usually elicited by a party to the suit and presented 
to the Judex 4 . He was bound by the decision c ; but naturally only 
on the assumption that the facts as stated in the petition which 
elicited the Rescript were the facts as exhibited in the course of the 
trial 6 . It may have been understood that the opinion of only one 
patented counsellor was to be sought in any single case ; for in the 
early Principate there seems to have been no provision determining 
the conduct of a Judex when the opinions of his advisers differed. 
Later it must have been possible to elicit the opinion of several 
patented jurists on a single issue ; for the Emperor Hadrian framed 
the rule that, in the case of conflicting responses, a Judex should be 
entitled to use his own discretion 7 . 

19. Literary activity in the domain of. Law to the 
time of Gaius. 

The literary activity in the domain of law, during the period 
which intervened between the accession of Augustus and the time 
of Gaius, was of the most varied character 8 . Religious law (Jus 

1 Pomponius in the Digest (1. 2. 48-50) says 'Massurius Sabinus (of the time 
of Tiberius) in equestri ordine fuit et publice primus respondit '; but he also adds : 
' Primus divus Augustus, ut major juris auctoritas haberetur, constituit, ut ex 
auctoritate ejus responderent.' To make the statements square with one 
another, Mommsen would strike out the words 'fuit et' in the first paragraph, 
as being the addition of an interpolator. The statement would then be that 
Sabinus was the first patented jurisconsult of equestrian rank. 

2 This seems shown by the story told by Pomponius in Dig. 1. 2. 2. 49. 

3 Yet the response was not regarded as a delegation of the power of the 
Princeps to issue Rescripts. It may, however, have formed the model for the 
judicial Rescript. See Krxiger, op. cit. p. 110, note 5. 

4 Not merely to the Judex privatus, but to the Judex extra ordinem datus, and 
even to the magistrate who was judging. 

5 Justin. Inst. i. 2. 8. 6 Kriiger. op. cit. p. 110. 7 Gaius, i. 7. 

8 For a detailed description of this literature see Roby, Introduction to the Study 
of Justinian's Digest, pp. 124-174. 



THE INSTITUTES OF GAIUS li 

Pontificium) attracted the attention of Capito. Labeo wrote on the 
Twelve Tables. The Praetor's Edict was the subject of studies by 
Labeo, Masurius Sabinus, Pedius and Pomponius. The Edict of the 
Curule Aediles was commented on by Caelius Sabinus. Salvius 
Julianus, besides his redaction of the Edicts 1 , produced a work 
known as Digesta, which perhaps assumed the form of detailed 
explanations of points of law systematically arranged. Compre- 
hensive works on the Civil Law were furnished by Masurius Sabinus 
and Caius Cassius Longinus. Other jurists produced monographs on 
special branches of law, as the younger Nerva on Usucapion, Pedius 
on Stipulations, Pomponius on Fideicommissa. Some lawyers wrote 
commentaries on the works of their predecessors. It was thus that 
Aristo dealt with Labeo, and Pomponius with Sabinus. Other 
works took the form of Epistolae, which furnished opinions on 
special cases which had been submitted to their author, and 
collections of Problems (Quaestiones). Nor was history neglected. 
There must have been much of it in Labeo's commentary on the 
Twelve Tables ; and Pomponius wrote a Handbook (Enchiridion), 
which contained a sketch of the legal history of Eome from the 
earliest times. 

20. The Institutes of Gains ; their place in the Literature 

of Law. 

The Institutes of Gaius are a product of this activity ; for it is 
necessary that a great deal of detailed and special work shall be 
done in a science before a good handbook on the subject can be 
written for the use of students. The name of Gaius's work does 
not appear in the manuscript ; ' but 2 from the proem to Justinian's 
Institutes appears to have been INSTITUTIONS, or to distinguish it 
from the systems of rhetoric which also bore this name, INSTITU- 
TIONES JURIS CIVILIS. From the way in which it is mentioned by 
Justinian, we may infer that for 350 years the elite of the youth of 
Eome were initiated in the mysteries of jurisprudence by the manual 
of Gaius, much as English law students have for many years com- 
menced their labours under the auspices of Blackstone. It is 
probably in allusion to the familiarity of the Koman youth with 
the writings of Gaius that Justinian repeatedly calls him (e. g. Inst. 
proem. 6 ; Inst. 4, 18, 5 ; and in the Constitution prefixed to the 
Digest, and addressed ad Antecessores, 1), "our friend Gaius" 
(.Gaius noster). The shortness of the time that sufficed Tribonian 
and his colleagues for the composition of Justinian's Institutes 

1 P. xlvii. 

2 These passages in inverted commas are taken from Mr. Poste's preface to the 
third edition of his work. 



lii HISTORICAL INTRODUCTION 

(apparently a few months towards the close of the three years 
devoted to the compilation of the Digest, Inst. proem) is less 
surprising when we see how closely Tribonian has followed the 
arrangement of Gaius, and how largely, when no change of legisla- 
tion prohibited, he has appropriated his very words.' 

'Certain internal evidences fix the date at which portions of the 
Institutions were composed. The Emperor Hadrian is spoken of 
as departed or deceased (Divius) except in 1. 47 and 2. 57. 
Antoninus Pius is sometimes (1. 53, 1. 102) named without this 
epithet, but in 2. 195 has the style of Divus. Marcus Aurelius 
was probably named, 2. 126, and the Institutions were probably 
published before his death, for 2. 177 contains no notice of a 
constitution of his, recorded by Ulpian, that bears on the matter 
in question. Paragraphs 3. 24, 25, Would hardly have been 
penned after the Sc. Orphitianunij A. D. 178, or the Sc. Tertullianum, 
A. D. 158,' It has, however, been held that Gaius when he wrote 
the Institutions was acquainted with the Sc. Tertullianum, and that 
a mention of it occupied a gap in the manuscript which is found in 
3. 33. See the commentary on this passage. 

The discovery of the text of the Institutions was made in 1816. 
In that year 'Niebuhr noticed in the library of the Cathedral Chapter 
at Verona a manuscript in which certain compositions of Saint 
Jerome had been written over some prior writings, which in certain 
places had themselves been superposed on some still earlier in- 
scription. In communication with Savigny, Niebuhr came to the 
conclusion that the lowest or earliest inscription was an elementary 
treatise on Bo man Law by Gaius, a treatise hitherto only known, or 
principally known, to Roman lawyers by a barbarous epitome of its 
contents inserted in the Code of Alaric II, King of the Visigoths 
( 1,22, Comm.). The palimpsest or rewritten manuscript originally 
contained 129 folios, three of which are now lost. One folio be- 
longing to the Fourth Book ( 136- 144), having been detached by 
some accident from its fellows, had been published by Maffei in his 
Historia Tcologica, A.D. 1740, and republished by Haubold in the 
very year in which Niebuhr discovered the rest of the codex.' 

' Each page of the MS. generally contains twenty-four lines, each 
line thirty -nine letters ; but sometimes as many as forty-five. On 
sixty pages, or about a fourth of the whole, the codex is doubly 
palimpsest, i.e. there are three inscriptions on the parchment. About 
a tenth of the whole is lost or completely illegible, but part of this 
may be restored from Justinian's Institutes, or from other sources ; 
accordingly, of the whole Institutions about one-thirteenth is wanting, 
one half of which belongs to the Fourth Book.' 

' From the style of the handwriting the MS. is judged to be older 



THE LIFE AND WORKS OF GAIUS liii 

than Justinian or the sixth century after Christ ; but probably did 
not precede that monarch by a long interval.' 

' In a year after Niebuhr's discovery the whole text of Gaius had 
been copied out by Goeschen and Hollweg, who had been sent to 
Verona for that purpose by the Prussian Royal Academy of Sciences, 
and in 1820 the first edition was published. In 1874 Studemund 
published an apograph or facsimile volume, the fruits of a new 
examination of the Veronese MS.; and in 1877 Studemund, with 
the assistance of Krueger, published a revised text of Gaius founded 
on the apograph.' 

' In the text of Gaius, the words or portions of words which are 
purely conjectural are denoted by italics. The orthography of the 
Veronese MS. is extremely inconstant. Some of these inconstancies 
it will be seen are retained : e.g. the spelling oscillates between the 
forms praegnas and praegnans, nanctus and nactus, erciscere and 
herciscere, prendere and prehendere, diminuere and deminuere, 
parentum and parentium, vulgo and volgo, apud and aput, sed and 
set, proxumus and proximus, affeetus and adfectus, inponere and 
imponere &c. Some irregularities likely to embarrass the reader, e. g. 
the substitution of v for b in debitor and probare, the substitution 
of b for v in servus and vitium, have been tacitly corrected. The 
numeration of the paragraphs was introduced by Goeschen in his 
first edition of Gaius, and for convenience of reference has been 
retained by all subsequent editors. The rubrics or titles marking 
the larger divisions of the subject, with the exception of a few at 
the beginning, are not found in the Veronese MS. Those that are 
found are supposed not to be the work of Gaius, but of a transcriber. 
The remainder are partly taken from the corresponding sections of 
Justinian's Institutes, partly invented or adopted from other editors.' 

21. The Life and Works of Gaius. 

Of the life of Gaius we know little. Even his full name has been 
lost ; for, if ' Gaius ' is the familiar Roman praenomen *, he must have 
had a family or gentile name as well. It is probable that he was a 
foreigner by birth a Greek or a Hellenised Asiatic ; but it is also 
probable that he was a Roman citizen, and possible that he taught at 
Rome. It is not likely that he belonged to the class of patented 
jurisconsults ; for his opinions are not quoted by the subsequent 
jurists whose fragments are preserved in the Digest ; it has even been 

1 It is a curious fact th&t Gaios (rdi'os) is found as the name of an Asiatic 
(Gaios, son of Hermaeus, one of the avvrpwpoi of Mithridates Eupator, King of 
Pontus. See Delian inscription in Th. Reinach, Mithridate Eupator, roi du Pont, 
p. 52, and Plut. Pomp. 42). Yet, if Gaius the jurist was a Roman citizen, we 
should have expected him to bear a Roman, or Romanised, name. 



liv HISTORICAL INTRODUCTION 

inferred that he was not a practising lawyer ; for amidst his 
voluminous writings there is no trace of any work on Quaestiones. 
His treatises may all have been of a professorial kind. They 
included, beside the Institutions, Commentaries on the Provincial 
Edict and the Urban Edict ; a work on the Lex Julia et Papia 
Poppaea ; a Commentary on the Twelve Tables ; a book called Aurea or 
Ees Quotidianae, treating of legal doctrines of general application and 
utility in every-day life ; a book on Cases (apparently of a hypothetical 
character) ; one on Kules of Law (Eegulae) ; and special treatises on 
Verbal Obligations, Manumissions, Fideicommissa, Dowries, and 
Hypotheca. He also wrote on the Tertullian and Orphitian Senatus- 
consults. Gaius's Commentary on the Provincial Edict is the only 
work of the kind known to us. It is not necessary to believe that 
this Provincial Edict was the edict of the particular province 
(perhaps Asia) of which he was a native. It may have been a 
redaction of the elements common to all Provincial Edicts l . 

The value attached to Gaius's powers of theoretical exposition, 
and to the admirable clearness and method which made his Insti- 
tutions the basis of all future teaching in Roman law, must have 
been great ; for, in spite of the fact that he was not a patented juris- 
consult, he appears by the side of Papinian, Paulus, Ulpian, and 
Modestinus, in the ' Law of Citations ' issued by Theodosius II and 
Valentinian III in 426 A. D. The beginning of this enactment runs 2 : 
' We accord our approval to all the writings of Papinian, Paulus, 
Gaius, Ulpian, and Modestinus, granting to Gaius the same authority 
that is enjoyed by Paulus, Ulpian and the others, and sanctioning 
the citation of all his works.' 

Although so little is known of Gaius, yet his date can be approxi- 
mately determined from the internal evidence of his works. ' We 
know that he flourished under the Emperors Hadrian (117-138 A.D.), 
Antoninus Pius (138-161 A. D.) and Marcus Aurelius Antoninus 
(161-180 A. D.). Gaius himself mentions that he was a contemporary 
of Hadrian, Dig. 34, 5, 7 pr. He apparently wrote the First Book 
of his Institutions under Antoninus Pius, whom he mentions, 53, 
74, 102, without the epithet Divus (of divine or venerable memory), 
a term only applied to emperors after their decease, but in the 
Second Book. 195, with this epithet. The Antoninus mentioned, 
126, is either Pius or Marcus Aurelius Philosophus. Respecting 
the rules of Cretio, 2. 177 Gaius appears not to be cognizant of 
a Constitution of Marcus Aurelius mentioned by Ulpian, 22, 34. 
That he survived to the time of Commodus appears from his having 
written a treatise on the Sc. Orphitianum (178 A. D.), an enactment 

1 Cf. p. xxxiii and p. xlvii, note 2. 2 Cod. Theod. 1. 4. 3. 



THE LIFE AND WORKS OF GAIUS Iv 

passed under that emperor' during his joint rule with his father 
Marcus Aurelius (177-180 A.D.). This is the latest date which is 
traceable in the life of Gaius. 

Gaius was thus an elder contemporary of Papinian, who had 
already entered active life in the reign of Marcus Aurelius ; and he 
stands at the threshold of that brilliant period of the close of Eoman 
Jurisprudence which contains the names of Scaevola, Papinian, 
Ulpian and Paulus, and extends from the reign of Marcus Aurelius 
to that of Severus Alexander (180-235 A.D.). 



COMMENTAKIVS PRIMVS 



DE IVRE 



[l. DE IVBE CIVILI ET 
NATVRALI.] 

1. Omnes populi quilegibus 
et moribus reguntur partim 
KUO proprio, partim, communi 
omnium hominum iure utun- 
tur; nam quod quis\que popu- 
lus ipse sibi ius constituit, id 
ipsius proprium est uocaturque 
ius ciuile, quasi ius proprium 
ciuitatia; quod uero naturalis 
ratio inter omnes homines con- 
stituit, id apud omnes populos 
peraeque custoditur uocaturque 
ius gentium, quasi quo iure 
omnes gentes utuntur. populus 
itaque Romanus partim suo pro- 
prio, partim communi omnium 
hominum iure utitur. quae 
singula qualia sint, suis locis 
proponemus. 

Dig. 1, 1,9 (Gaius), Inst. 1,2,1. : 

2. Constant autem jura 
populi Romani ex legibus, plebi- 
scitis, senatusconsultis, con- 
stitutionibus principum, edictis 
eorum qui ius edicendi habent, 
responsis prudentium. 

Inst. ] , 2, 3. 

3. .Lex est quod populus 
iubet atque constituit. Plebi- 
scitum est quod plebs iubet 
atque constituit. plebs autem 
a populo eo distat, quod populi 
appellatione uniuersi ciues sig- 
nificantur, connumeratis etmm 
patriciis ; plebis autem appella- 
tione sine patriciis ceteri ciues 
significantur ; unde olim pa- 
tricii dicebant plebiscitis se non 
teneri, qm'a sine auctoritate 
eorum f acta essent ; sed postea 



ON CIVIL LAW AND NATURAL 
LAW. 

1. The laws of every people 
governed by statutes and customs 
are partly peculiar to itself, partly 
common to all mankind. The 
rules established by a given state 
for its own members are peculiar 
to itself, and are called jus civile ; 
the rules constituted by natural 
reason for all are observed by all 
nations alike, and are called jus 
gentium. So the laws of the 
people of Rome are partly pecu- 
liar to itself, partly common to 
all nations ; and this distinction 
shall be explained in detail in 
each place as it occurs. 



2, Roman law consists of 
statutes, plebiscites, senatuscon- 
sults, constitutions of the em- 
perors, edicts of magistrates 
authorized to issue them, and 
opinions of jurists. 

3. A statute is a command 
and ordinance of the people : a 
plebiscite is a command and 
ordinance of the commonalty. 
The commonalty and the people 
are thus distinguished : the people 
are all the citizens, including the 
patricians ; the commonalty are 
all the citizens, except the patri- 
cians. Whence in former times 
the patricians maintained that 
they were not bound by the 
plebiscites, as passed without 
their authority ; but afterwards 



DE IVRE 



[r. 1-7. 



a statute called the lex Hortensia 
was enacted, which provided that 
the plebiscites should bind the 
people, and thus plebiscites were 
made co-ordinate with statutes. 

4. A senatusconsult is a com- 
mand and ordinance of the senate, 
and has the force of a statute, 
a point which was formerly con- 
troverted. 

5. A constitution is law estab- 
lished by the emperor either by 
decree, edict, or letter ; and was 
always recognized as having the 
force of a statute, since it is by a 
statute that the emperor himself 
acquires supreme executive power. 

6. Power to issue edicts is 
vested in magistrates of the people 
of Eome, the amplest authority 
belonging to the edicts of the two 
praetors, the home praetor and 
the foreign praetor, whose pro- 
vincial jurisdiction is vested in 
the presidents of the provinces, 
and to the edicts of the curule 
aediles, whose jurisdiction in the 
provinces of the people of Eome 
is vested in quaestors : in the 
provinces of the emperor no 
quaestors are appointed, and in 
these provinces, accordingly, the 
edict of the aediles is not pub- 
lished. 

7. The answers of jurists are 
the decisions and opinions of 
persons authorized to lay down 
the law. If they are unanimous 
their decision has the force of 
law; if they disagree, the judge 
may follow whichever opinion he 
chooses, as is ruled by a rescript 
of the late emperor Hadrian. 



lex Hortensia lata est, qua cau- 
tum est ut plebiscita uniuer- 
sum populum tenerent ; itaque 
eo modo legibus exaequata 
sunt. Inst. 1 , 2, 4. 

4. Senatusconsultum est 
quod senatus iubet atque con- 
stituit,idque legis uicem optinet, 
quamuis fuerit quaesitum. 

Inst. 1, 2, 5. 

5. Constitutio principis 
est quod imperator decreto uel 
edicto uel epistula constituit. 
nee umquam dubitatum est, 
quin id legis uicem optineat, 
cum ipse imperator per legem 
imperiurn accipiat. 

Inst. 1,2, 6; Dig. 1,4,1. 
6. 

ius autem edicendi habent 
magistratus populi Romani ; 
sed amplissimum ius est in 
edictis duorum praetorutn, 
urban! et peregrin!, quorum in 
prouinciis iurisdictionem prae- 
sides earum habent ; item in 
edictis aedilium curulium, 
quorum iurisdictionem in pro- 
uinciis populi Romani quae- 
stores habent ; nam in pro- 
uincias Caesaris omnino quae- 
stores non mittuntur, et ob id 
hoc edictum in his prouinciis 
non proponitur. Inst. 1, 2, 7. 
7. Responsa prudentium 
sunt sententiae et opiniones 
eorum quibus permissum est 
iura condere. quorum omnium 
si in unum sententiae concur- 
runt, id quod ita sentiunt legis 
uicem optinet; si uero dis- 
sentiunt, iudici licet quam ueit 
sententiam sequi ; idque re- 
scripto diui Hadrian i signifi- 
catur. Inst. 1,2, 8. 

1. Jurisprudence treats exclusively of positive law: the ex- 
clusive origin of positive law is some positive enactment ; the term 
positive enactment including both the express or direct enactments 



i. S& 1-7.1 DE IVRE GENTIVM ET CIVILI 3 

3 3 J 

of the political sovereign, and the implied, indirect, circuitous enact- 
ments imported by the sovereign's acquiescence in the ruling of 
subordinate authorities. (See Holland's Jurisprudence, chs. 2-5.) 

The rules and principles denoted by the terms praetor-made law, 
jurist-made law, judge-made law, are only law because they are 
impliedly adopted, confirmed, and ratified by the silent acquiescence 
of the sovereign. 

The organ by which the jus gentium of the Eomans was pro- 
mulgated, which made it by indirect enactment a portion of Komaii 
Positive law, was principally the Edict 'of the Praetor. The rela- 
tions of Eoman citizens with aliens (peregrini), that is, with the 
members of foreign states formerly subjugated by Rome and now 
living under the protection of Roman law, as well as of aliens in 
their intercourse with one another, became, about 242 B.C., so 
frequent as to be made subject to the jurisdiction of a special 
minister of justice called Praetor peregrinus, who, like the Praetor 
urbanus, published an annual edict announcing the principles on 
which justice would be administered. These principles composed 
jus gentium as opposed to jus civium. Jus gentium, that is to say, 
was not really, as Roman jurists imagined or represented, a collec- 
tion of the principles common to the legislation of all nations, but 
a body of rules which the Roman praetor thought worthy to govern 
the intercourse of Roman citizens with the members of all, originally 
independent, but now subject, foreign nations. 

Gradually the rules originating in this way were extended to the 
intercourse of citizens with citizens, in cases where the rigorous 
conditions of jus civile were not exactly satisfied, and so precepts 
of jus gentium were transferred from the edict of praetor peregrinus 
to the edict of praetor urbanus. 

The portion of the edict most fertile in principles of jus gentium 
would be the clauses in which the praetor announced, as he did 
in some cases, that he would instruct the judex, whom he appointed 
to hear and determine a controversy, to govern himself by a con- 
sideration of what was aequum et bonum, i. e. by his views of 
equity and expediency : and if any of the oral formularies of the 
earliest system of procedure (legis actiones) contained these or 
equivalent terms, such formularies may be regarded as a source 
of jus gentium. It may be observed that Gaius does not, like 
some other Roman jurists and notably Ulpian (cf. Dig. 1, 1, 1, 3 ; 
Inst. 1, 2 pr.), make any distinction between jus gentium and jus 
naturale. There is nothing in his writings, as they have come 
down to us, to draw attention to the fact that the teaching of 
nature may not be in accordance with the practice of nations, as 
the institution of slavery showed. 

B a 



4 DE IVRE [i. 1-7. 

Another organ of quasi publication, whereby the rules of jus 
gentium were transformed from ideal law to positive law from 
laws of Utopia to laws of Home were the writings of the jurists, 
who, at first with the tacit, afterwards with the express permission 
of the legislature, engaged, nominally in interpreting, really in 
extending the law, about the time of Cicero (De Legibus, 1, 5), 
transferred to the edict of the praetor the activity which they had 
formerly displayed in developing the law of the Twelve Tables and 
the statutes of the Comitia. By these means, supplemented and 
confirmed by statute law and custom, the jus gentium gradually 
increased in importance, and gave the Roman empire its universal 
law. 

Jus civile, i. e. jus eivium or law peculiar to citizens, was the law 
of the Twelve Tables, augmented by subsequent legislation, by juristic 
interpretation, and by consuetudinary law. The institutions of jus 
civile may be exemplified by such titles to property as Mancipatio 
and In Jure Cessio, contracts by the form of Nexum and Sponsio, 
title to intestate succession by Agnatio or civil relationship ; while 
corresponding institutions of jus gentium were the acquisition of 
property by Tradition, contract by Stipulation without the solemn 
term Spondeo, title to intestate succession by Cognatio or natural 
relationship. Other departments of life were not subject to parallel 
institutes of jus civile and jus gentium, but the mutual relations of 
citizens with citizens as well as of citizens with aliens were exclu- 
sively controlled by jus gentium : e. g. the informal contracts called 
Consensual, such as buying and selling, letting and hiring, partner- 
ship ; and the informal contracts called Real, such as the contract of 
loan for use or loan for consumption. 

Titles to ownership (jus in rem), according to jus gentium, which 
ultimately superseded civil titles, are explained at large in Book II. 

In respect of Obligation (jus in personam), jus gentium may be 
divided into two classes, according to the degree in which it was 
recognized by Civil law : 

A. A portion of jus gentium was recognized as a ground of 
Action. To this class belong (1) the simple or Formless contracts 
to which we have alluded. (2) obligations to indemnify grounded 
on delict, (3) rights quasi ex contractu to recover property when it 
has been lost by one side and gained by the other without any right 
to retain it. Dig. 12, 6, 14 and Dig. 25, 2, 25. Actions founded on 
this obligation to restore (condictiones), although it was a species of 
naturalis obligatio, Dig. 12, 6, 15 pr., were as rigorous (stricti juris) 
as any in the Civil code. In these cases the obligalio, though 
naturalis as founded in jus gentium, yet, as actionable, was said 
to be civilis obligatio, not naturalis, Dig. 19, 5, 5, 1. 



1. 1-7.] DE IVRE GENTIVM ET CIVILI 5 

The two eminently Civil spheres of the law of obligation were 
(1) specialty or Formal contracts, and (2) penal suits. Yet even 
into these provinces jus gentium forced a partial entrance. We 
shall see that aliens could be parties to a Stipulatio or Verbal 
contract, though not by the Civil formulary, Spondeo 3 93 ; and 
to Transcriptio, at least of one kind, 3 133, which was a form 
of Literal contract ; and could be made plaintiffs or defendants in 
penal suits by means of the employment of certain Fictions, 4 37. 
This, however, was rather the extension of jus civile to aliens than 
the intrusion of jus gentium into a Civil province. 

B. Other rights and obligations of jus gentium were not admitted 
as direct grounds for maintaining an action, yet were otherwise 
noticed by the institutes of civil jurisprudence and indirectly 
enforced. Thus a merely naturalis obligatio, though not actionable, 
might (1) furnish a ground of an equitable defence (exceptio) : 
for instance, on payment of a merely natural debt the receiver has 
a right of retention, and can bar the suit to recover it back as a 
payment made in error (condictio indebiti soluti) by pleading the 
naturalis obligatio, Dig. 12, 6, 64; or the defendant can meet a 
claim by Compensatio, 4 61, cross demand or set-off, of a debt 
that rests on merely naturalis obligatio, Dig. 40, 7 f 20, 2 ; or a 
merely naturalis obligatio might (2) form the basis of an accessory 
obligation, such as Suretyship (fidejussio) 3 119 a, or Guaranty 
(constitutum) Dig. 13, 5, 1, 7, or Mortgage (pignus) Dig. 20, 1, 5 pr., 
or Novation, 3 176, Dig. 46, 2, 1, 1, all institutions, which are 
themselves direct grounds of action. Though these rights and 
obligations of natural law are imperfect (obligatio tantum naturalis) 
as not furnishing immediate grounds of action, yet, as being partially 
and indirectly enforced by Roman tribunals, they clearly compose 
a portion of Positive law. Cf. 3 88, 89 comm. 

3. Plebiscites as well as the enactments of the Comitia populi 
were called Leges, and were named after the tribunes by whom they 
were carried, as the leges proper (rarely called populiscita) were 
named after the consul, praetor or dictator by whom they were 
carried. Thus Lex Canuleia, Lex Aquilia, 3 210, Lex Atinia, Inst. 

2, 6, 2, Lex Furia testamentaria, 2 225, were plebiscites named 
after tribunes, while the Lex Valeria Horatia was named after two 
consuls, the Lex Publilia and Lex Hortensia were named after 
dictators, the Lex Aurelia, 70 B. c., after a praetor. (As to the 
history of plebiscita and leges and of the other sources of Eoman 
law cf. Historical Introduction and see Smith's Diet, of Greek and 
Roman Antiquities, 3rd ed. s. v.) 

4. The legislative power of the senate was in the time of the 
republic a matter of controversy. It is certain that it had a power 



6 DE IVRE [i. 1-7. 

of issuing certain administrative decrees or instructions to magistrates 
that was hardly distinguishable from legislation. Under the 
emperors matters were changed. Legislation by the Comitia, 
though spoken of by Gaius in the present tense, had ceased to be 
a reality after the time of Tiberius, and the last recorded lex was 
passed in the reign of Nerva. As early as the time of Augustus the 
auctoritas of the senate began to be regarded as the essential process 
in making a law, and the subsequent rogatio of the Comitia as a 
mere formality, which was finally omitted. Senatusconsults, like 
laws, were sometimes named after the consuls who proposed them, 
though this is not in their case an official designation ; they are 
sometimes even called leges : thus the measure which Gaius calls 
Sc. Claudianum, 84, is subsequently referred to by him under the 
name of lex, 157, 4 85, 86. Ulpian says, Non ambigitur senatum 
jus facere posse. Dig. 1, 3, 9. Of course, these senatusconsults were 
merely a disguised form of imperial constitution. The sovereignty 
had in fact passed from both patricians and plebeians to the hands 
of the princeps. A measure was recommended by the emperor in an 
oratio or epistola to the senate, and then proposed by the consul 
who convoked the senate, and voted by the senate without opposi- 
tion. Hence a senatusconsult is sometimes called oratio, e. g. oratio 
divi Marci, Dig. 2, 12, 1 pr. Even this form was finally disused. 
No senatusconsult relating to matters of civil law occurs after the 
time of Septimius Severus. 

5. Although when Gaius wrote the emperor had not yet acquired 
the formal right of making statutes, his supreme executive power 
enabled him to give to his constitutions the same force as if they 
had been leges. The legal origin and character of the different 
forms of imperial constitution has been much controverted, and 
certainly varied at different periods. 

Edicts were legislative ordinances issued by the emperor in virtue 
of the jurisdiction appertaining to him as highest magistrate, and 
were analogous to the edicts of the praetors and aediles. In the 
time of Gaius they had only binding force during the life of the 
emperor who issued them, requiring the confirmation of his successor 
for their continuing validity ; but from the reign of Diocletian, 
when the empire assumed an autocratic form, their duration ceased 
to be thus limited. 

Deere ta were judicial decisions made by the emperor as the 
highest appellate tribunal: or in virtue of his magisterial juris- 
diction, and analogous to the extraordinaria cognitio of the 
praetor. 

Epistolae or reseripta were answers to inquiries addressed to the 
emperor by private parties or by judges. They may be regarded as 



i. 1-7.] DE IVRE GENTIVM ET CIVILI 7 

interpretations of law by the emperor as the most authoritative 
juris peritus. Cf. 94 comm. 

Some examples of direct legal changes made by early emperors 
are recorded, as the right conferred by the edict of Claudius men- 
tioned in 32 c of this book. 

The words of Gaius explaining why constitutions had the force of 
law seem to be imperfect, and may be supplemented from Justinian, 
who openly asserts for himself absolute authority : Sed et quod 
principi placuit legis habet vigorem : cum lege regia, quae de imperio 
ejus lata est, populus ei et in eum ornne suum imperium et potestatem 
concessit, Inst. 1, 2, 6. The lex imperii, Cod. 6, 23, 6, was called in 
this and in the corresponding passage of the Digest (1, 4, 1) attributed 
to Ulpian, lex regia, in memory of the lex curiata, whereby the kings 
were invested with regal power. According to Cicero the king was 
proposed by the senate and elected by the Comitia Curiata, and the 
election was ratified in a second assembly presided over by the king ; 
e. g. Numam Pompilium regem, patribus auctoribus, sibi ipse populus 
adscivit, qui ut hue venit, quanquam populus curiatis eum comitiis 
regem esse jusserat, tamen ipse de suo imperio curiatam legem tulit, 
De Eepubl. 2, 13, According to Mommsen and other modern 
writers, however, the later Koman idea, that the king was elected 
by the Comitia, is wrong, the lex curiata having been passed, not to 
elect a king, but merely to ratify a previous election or nomination. 
A lex curiata was also passed to confer on a Eoman magistratus his 
imperium, and similarly the Koman emperor derived some of his 
powers from leges, but it seems a mistake to suppose that in the 
time of the principate a single lex gave him his entire authority. 
A fragment of a bronze tablet, on which was inscribed the lex 
investing Vespasian with sovereign powers, was discovered at Kome 
in the fourteenth century, and is still preserved in the Capitol. 

6. Huschke points out that the vacant space in the MS. before 
jus probably contained a definition of Edicta. 

All the higher magistrates of Kome were accustomed to issue edicts 
or proclamations. Thus the consuls convoked the comitia, the army, 
the senate, by edict : the censors proclaimed the approaching census 
by edict : the aediles issued regulations for the market by edict : 
and magistrates with jurisdiction published edicts announcing the 
rules they would observe in the administration of justice, the 
Edicts of the Praetor urbanus, Praetor peregrinus, Aediles curules 
being called Edicta urbana, while the Edicts of the governors 
of provinces were called Edicta provincialia. These edicts, besides 
being orally proclaimed, were written on white tablets (in albo) 
and suspended in the forum : apud forum palam ubi de piano 
legi possit, Probus, ' in the forum in an open space where persons 



8 DE IVRE [i. 1-7. 

standing on the ground may read.' Such an edict was always 
published on entering on office (est enim tibi jam, cum magistratum 
inieris et in concionem adscenderis, edicendum quae sis observaturus 
in jure dicendo, Cic. De Fin. 2, 22), and was then called Edictum 
perpetuum, as opposed to occasional proclamations^ Edictum repen- 
tinum. A clause (pars, caput, clausula, edictum) retained from a 
former edict was called Edictum tralaticium, Gellius, 3, 18 ; and 
though doubtless the edicts gradually changed according to changing 
emergencies, each succeeding praetor with very slight modifications 
substantially reproduced the edict of his predecessor. In the reign 
of Hadrian the jurist Salvius Julianus, called by Justinian Prae- 
toriani edicti ordinator, reduced the edict to its definite form, and 
if the yearly publication was not discontinued (cf. 6, jus edicendi 
habent), at all events Julian's co-ordination of Praetorian law was 
embodied in all subsequent publications. Such was the origin of 
jus honorarium (praetorium, aedilicium), as opposed to jus civile : 
and from what has preceded, it need hardly be stated that the 
antithesis, jus civile, jus honorarium, is to a great extent coincident 
with the antithesis, jus civile, jus gentium. 

It may be observed that Gaius does not attribute to edicts the 
force of a statute: and this theoretical inferiority of jus hono- 
rarium had a vast influence in modelling the forms and proceedings 
of Koman jurisprudence^ The remedy or redress administered to 
a plaintiff who based his claim on jus civile differed from that 
administered on an appeal to jus honorarium, as we shall see when 
we come to treat of Bonitary ownership, Bonorum possessio, Actio 
utilis, in factum, ficticia. This difference of remedy preserved jus 
civile pure and uncontaminated, or at least distinguishable from jus 
honorarium j but this perpetuation of the memory of the various 
origins of the law, like the analogous distinction of Equity and 
Common law in English jurisprudence, was purchased by sacrificing 
simplicity of rule and uniformity of process. 

The legislative power of the popular assembly and the absence 
of legislative power in the senate and praetor were marked by a 
difference of style in the lex and plebiscite, edict, and decree of 
the senate: while the lex and plebiscite employed the imperative 
(damnas esto, jus potestasque esto, &c.), the resolutions of the senate 
scrupulously avoid the imperative and are clothed in the forms 
placere, censere, arbitrari, &c., as if they were rather recommen- 
dations than commands : and the edicts and the interdicts of the 
praetor are couched in the subjunctive (Exhibeas, Kestituas, &c.), a 
milder form of imperative. Or to show that their force and opera- 
tion is limited to his own tenure of office, they are expressed in the 
first person (actionem dabo, ratum habebo, vim fieri veto). Where 



I. 1-7.] DE IVRE GENTIVM ET CIVILI 9 

he has authority to command he shows it by using the imperative, 
as in addressing the litigants (mittite ambo hominem, inite viam, 
redite, 4 13 comm.) or the judge (judex esto, condemnato, absolvito). 
Ihering, 47. 

In the first period of the empire, that is, in the first three 
centuries of our era, it was the policy of the emperors to maintain 
a certain show of republican institutions, and the administration 
of the empire was nominally divided between the princeps or 
emperor and the people as represented by the senate. Thus, at 
Rome there were two sets of magistrates, the old republican 
magistrates with little real power, consuls, praetors, tribunes, 
quaestors, in outward form elected by the people ; and the imperial 
nominees with much greater real authority, under the name of 
praefecti, the praefectus urbi, praefectus praetorio, praefectus vigilum, 
praefectus annonae, praefectus aerario ; for though nominally the 
people and princeps had their separate treasuries under the name of 
aerarium and fiscus, yet the treasury of the people was not managed 
by quaestors as in the time of the republic, but by an official 
appointed by the emperor. Similarly the provinces were divided 
between the people and the prince, the people administering those 
which were peaceful and unwarlike, the prince those which required 
the presence of an army. The governor of a province, whether of 
the people or the emperor, was called Praeses Provinciae. The 
Praeses of a popular province was a Proconsul, and the chief sub- 
ordinate functionaries were Legati, to whom was delegated the civil 
jurisdiction, and quaestors, who exercised a jurisdiction corresponding 
to that of the aediles in Rome. The emperor himself was in theory 
the Proconsul of an imperial province ; but the actual governor, 
co-ordinate with the Proconsul of a senatorial province, was the 
Legatus Caesaris, while the financial administration and fiscal juris- 
diction were committed to a functionary called Procurator Caesaris, 
instead of the republican Quaestor. Sometimes the same person 
united the office of Procurator and Legatus, as, for instance, Pontius 
Pilate. 

7. The opinions of a jurist had originally only the weight that 
was due to his knowledge and genius ; but on the transfer of power 
from the hands of the people to those of the princeps, the latter 
recognized the expediency of being able to direct and inspire the 
oracles of jurisprudence ; and accordingly Augustus converted the 
profession of jurist into a sort of public function, giving the decisions 
of certain authorized jurists the force of law, Pomponius in Dig. 1, 2, 49 
(cf. Inst. 1, 2, 8). ' Until Augustus, the public decision of legal 
questions was not a right conferred by imperial grant, but any one 
who relied on his knowledge advised the clients who chose to 



10 DE IVRE [i. 1-7. 

consult him. Nor were legal opinions always given in a letter 
closed and sealed, but were generally laid before the judge in 
the writing or by the attestation of one of the suitors. Augustus, 
in order to increase their weight, enacted that they should be 
clothed with his authority, and henceforth this office was sought for 
as a privilege.' Those jurists who had the jus respondendi were 
called juris auctores. Their auctoritas resided, in the first instance, 
in their responsa, or the written opinions they gave when consulted 
on a single case ; but in the second instance, doubtless, in their 
writings (sententiae et opiniones), which were mainly a compila- 
tion of their responsa, a fact which has left its traces in the 
disjointed and incoherent style which disagreeably characterizes 
Eoman juristic literature. The jus respondendi instituted by 
Augustus and regulated by Tiberius, who themselves held the office 
of Pontifex Maximus, gave those to whom it belonged similar 
authority in interpreting law as had previously been exercised by 
the College of Pontifices 'omnium tamen harum et interpretandi 
scientia et actiones apud Collegium Pontificum erant, ex quibus 
constituebatur, quis quoque anno praeesset privatis ' (Pomponius in 
Dig. 1, 2, 6 ; cf. Sohm, 18). 

As to the mode of collecting the opinions of the juris auctores 
no precise information has come down to us, but 6 shows that the 
duty of the judex, in the not uncommon event of the authorities 
differing in their opinions on a case, was open to doubt, till Hadrian's 
rescript allowed him under these circumstances to adopt the opinion 
he preferred. It may be gathered from the words ' quorum omnium ' 
that all authorized jurists had to be consulted. The jus respondendi, 
as thus explained, may have continued in existence till the end of 
the third century, by which time the originative force of Eoman 
jurisprudence had ceased. Instead of giving independent opinions 
jurists had become officials of the emperor, advising him in drawing 
rescripts and other affairs of imperial government. Legal authority 
rested in the writings of deceased juris auctores. (For a discussion 
of the causes of the decline of Roman Jurisprudence see Grueber's 
Art. in Law Quarterly Review, vii. 70.) In the course of centuries 
the accumulation of juristic writings of co-ordinate authority was 
a serious embarrassment to the tribunals. To remedy this evil, 
A. D. 426, Valentinian III enacted what is called the law of citations, 
Cod. Theodosianus, 1, 4, 3, limiting legal authority to the opinions 
of five jurists, Gaius, Papinian, Ulpian, Paulus, Modestinus, and of 
any other jurists whom these writers quoted, provided that such 
quotations should be verified by reference to the original writings of 
these jurists (codicum collatione firmentur on the question of the 
way of interpreting these words cf. Sohm, p. 122, n. 1, 21). In case 



i. 1-7.] DE IVRE GENTIVM ET CIVILI 11 

of a divergence of opinion, the authorities were to be counted, and the 
majority was to prevail. In case of an equal division of authorities, 
the voice of Papinian was to prevail. A. D. 533, Justinian published 
his Digest or Pandects, a compilation of extracts from the writings 
of the jurists, to which, subject to such modifications as his com- 
missioners had made in them, he gives legislative authority. Every 
extract, accordingly, is called a lex, and the remainder of the writings 
of the jurists is pronounced to be absolutely void of authority. To 
prevent the recurrence of the evil which his codification was in- 
tended to remove, and confident in the lucidity and adequacy of his 
Digest and Code, which latter is a compilation of imperial statute law 
after the model of the Theodosian code, Justinian prohibits for the 
future the composition of any juristic treatise or commentary on the 
laws. If any one should disregard the prohibition, the books are to 
be destroyed and the author punished as guilty of forgery '(falsitas), 
Cod. 1 , 1 7, 2, 2 1. The constitutions enacted by Justinian subsequent to 
the publication of his code are called Novellae, Constitutiones or Novels. 
We shall find frequent allusions, as we proceed in this treatise, 
to the existence of rival schools among the Roman juris auctores. 
This divergence of the schools dates from the first elevation of the 
jurist to a species of public functionary, namely, from the reign of 
Augustus, in whose time, as we have seen, certain jurists began to 
be invested by imperial diploma with a public authority. In his 
reign the rival oracles were M. Antistius Labeo and C. Ateius 
Capito : Hi duo primum veluti diversas sectas fecerunt, Dig. 1, 2, 47. 
' The first founders of the two opposing sects.' From Labeo's works 
there are 61 extracts in the Digest, and Labeo is cited as an authority 
in the extracts from other jurists oftener than any one else except 
Salvius Julianus. From Sempronius Proculus, a disciple of Labeo, 
and of whom 37 fragments are preserved in the Digest, the school 
derived its name of Proculianj. Other noted jurists of this school 
were Pegasus, in the time of Vespasian ; Celsus, in the time of 
Domitian, who gave rise to the proverb, responsio Celsina, a dis- 
courteous answer, and of whom 141 fragments are preserved ; and 
Neratius, of whom 63 fragments are preserved. To the other school 
belonged Masurius Sabinus, who flourished under Tiberius and 
Nero, and from whom the sect were called Sabiniani. To the same 
school belonged Caius Cassius Longinus, who flourished under Nero 
and Vespasian, and from whom the sect are sometimes called 
Cassiani : Javolenus Priscus, of whom 206 fragments are preserved : 
Salvius Julianus, the famous Julian, above mentioned, of whom 
456 fragments are preserved : Pomponius, of whom 578 fragments 
are preserved : Sextus Caecilius Africanus, celebrated for his ob- 
scurity, so that Africani lex in the language of lawyers meant lex 



12 DE IVRE [i. 1-7. 

difficilis, of whom 131 fragments are preserved: and, lastly, our 
author, Gaius, who flourished under Hadrian, Antoninus Pius, and 
Marcus Aurelius, and from whose writings 535 extracts are to be 
found in the Digest. 

If we now inquire whether this divergence of schools was based 
on any difference of principle, the answer is, No : on none, at least, 
that modern commentators have succeeded in discovering: it was 
merely a difference on a multitude of isolated points of detail. We 
are told indeed that the founders were men of dissimilar characters 
and intellectual dispositions : that Labeo was characterized by bold- 
ness of logic and a spirit of innovation ; while Capito rested on 
tradition and authority, and inclined to conservatism, Dig. 1, 2, 47 ; 
but it is altogether impossible to trace their opposing tendencies in 
the writings of their successors : and we must suppose that the 
intellectual impulse given by Labeo was communicated to the fol- 
lowers of both schools of jurisprudence. But though, as we have 
stated, no difference of principle was involved, each school was 
accustomed to follow its leaders or teachers (praeceptores) with much 
servility ; and it is quite an exception to find, on a certain question, 
Cassius, a member of the Sabinian school, following the opinion of 
Labeo ; while Proculus, who gave his name to Labeo's school, pre- 
ferred the opinion of Ofilius, the teacher of Capito, 3 140 ; Gaius 
too, who was a Sabinian, sometimes inclines to the opinion of 
the rival school ; cf. 3, 98. Controversies between the two schools 
are referred to by Gaius in the following passages of his Institutes : 
1, 196; 2, 15, 37, 79, 123, 195, 200, 216-222, 231, 244; 3, 87, 98, 
103, 141, 167-8, 177-8; 4, 78-9, 114, 170. 

As long as these schools of law, which may have derived their 
constitution from the Greek schools of philosophy, existed, the office 
of President appears to have devolved by succession from one jurist 
to another. (For an account of this subject and references to the 
chief modern writers who have discussed it see Sohm, pp. 98, &c.) 

We may briefly mention some of the most illustrious jurists who 
flourished somewhat later than Gaius. Aemilius Papinianus, who 
was probably a Syrian, lived in the time of Septimius Severus, and 
was murdered by the order of Caracalla: 601 extracts from his 
writings are contained in the Digest. It was perhaps to some 
extent due to the transcendent genius, or at least to the extra- 
ordinaiy reputation, of Papinian, which made him seem too great 
to be reckoned any man's follower, that we cease about his time to 
hear of opposing schools of jurisprudence. Papinian appears to have 
accompanied Severus to York, fulfilling the important function of 
praefectus praetorio, so that England may claim some slight con- 
nexion with the brightest luminary of Roman law. 



i. 8.] DE I VRIS DIVISIONS 13 

A disciple and colleague of Papinian, of Syrian origin, who like- 
wise became praefectus praetorio, was Domitius Ulpianus, murdered 
by the praetorian soldiery, whose domination he resisted, in the 
presence of the Emperor Alexander Severus : 2464 fragments, com- 
posing about a third of the whole Digest, are taken from his 
writings. An epitome of his Liber Singularis Eegularum is still 
extant in a manuscript of the Vatican Library, and is the work 
referred to when, without mentioning the Digest, we cite the 
authority of Ulpian. 

Another disciple and colleague of Papinian was Julius Paulus, of 
whose writings 2081 fragments are preserved in the Digest, forming 
about a sixth of its mass. An epitome of his treatise called 
Sententiae Keceptae is found, with the Epitome of Gaius, in the 
code of Alaric II, king of the Visigoths ; and it is to this book that 
we refer when we simply cite the authority of Paulus. 

A disciple of Ulpian's was Herennius Modestinus, of whom 344 
extracts are contained in the Digest. After Modestinus the lustre of 
Roman jurisprudence began to decline. (For a detailed account of the 
Roman jurists, see Roby's Introduction to the Digest, chs. vi-xvi.) 

Besides the sources of law enumerated by Gaius, the Institutes 
of Justinian (1, 2, 9 and 10) mention Custom or Usage, the source of 
consuetudinary or customary law (jus non scriptum, consensu 
receptum, moribus introductum). To this branch of law are 
referred, with other rules, the invalidity of donations between 
husband and wife, Dig. 24, 1, 1, the power of a paterfamilias to 
make a will for his filiusfamilias who dies before the age of puberty 
(pupillaris substitutio), Dig. 28, 6, 2 pr., and universal succession in 
Coemption and Adrogation, 3 82. See also 4 26, 27. We may 
suppose that Customary law, like Roman law in general, would fall 
into two divisions, jus civile and jus gentium, the former embracing 
what Roman writers sometimes speak of as mores majorum. Before 
the time of Gaius, however, most of Customary law must have been 
incorporated by statute, as in early times by the law of the Twelve 
Tables, or taken up into the edict of the praetor or the writings of the 
jurists, Cic. De Invent. 2, 22, 67; i. e. unwritten law must have 
changed its character and have been transformed into written law. 

[ll. DE IVRIS DI VISION E.] O N THE BRANCHES OF THE LAW. 

8. Omne autem ius quo 8. The whole of the law by 

utimur uel ad personas pertinet which we are governed relates 

uel ad res uel ad actiones. ei, either to persons, or to things, 

prius uideamus de personis. or to actions ; and let us first 

Inst. 1, 2, 12 : Gaius in Dig. 1, examine the law of persons. 
5,1. 

8. What are the leading divisions of law what are the main 



14 DE IVRE [i. 8. 

masses into which legislation naturally breaks itself what are the 
joints and articulations which separate the whole code into various 
subordinate codes, like the different limbs and members of an 
organic whole what is the import of the Gaian division, adopted 
perhaps from previous writers, into jus personarum, jus rerum, jus 
actionum, or rather, to adhere to the classical phrases, jus ad per- 
sonas pertinens, jus ad res pertinens, jus ad actiones pertinens ? 

By jus ad actiones pertinens, to begin with the easier part of the 
problem, there is no doubt that the inventor of the division intended 
to designate the law of PROCEDURE as opposed to the law of 
rights ; the adjective code, to use Bentham's phraseology, as opposed 
to the substantive code. There is as little doubt that in the Institu- 
tions of Gaius this design is not executed with precision, and that, 
instead of the law of procedure, the last portion of his treatise 
contains also to some extent the law of sanctioning rights, as opposed 
to the law of primary rights. (For the meaning of this distinction 
see Austin's Jurisprudence, bk. i.) Or perhaps we should say that 
the legislative provisions respecting Procedure have a double aspect : 
a purely formal aspect, so far as they give regularity and method 
to the enforcement of sanctioning rights ; and a material aspect, 
so far as certain stages of procedure (e.g. litis contestatio and res 
judicata) operate like Dispositions or any other Titles to modify 
the substantive rights of the contending parties. Procedure, then, 
is treated of in these Institutions partly indeed in its formal 
character, but still more in its material character, i.e. so far as its 
incidents can be regarded as belonging to the substantive code. 

It is more difficult to determine the principle of the other division, 
the relation of the law of Persons to the law of Things. They both 
deal with the rights and duties of persons in the ordinary modern 
acceptation of the word ; why then, we may inquire, are certain 
rights and duties of persons separated from the rest and dealt with 
under the distinguishing category of jura personarum? It is not 
enough to say with Austin that the law of Things is the universal 
or general portion of the law, the law of Persons a particular and 
exceptional branch ; that it is treated separately on account of no 
essential or characteristic difference, but merely because it is com- 
modious to treat separately what is special and exceptional from 
what is general and universal. This answer furnishes no positive 
character of the law of Persons, but only the negative character 
of anomaly, i. e. of unlikeness to the larger portion of the law ; 
but it would be difficult to show that the law of Persons is more 
exceptional, anomalous, eccentric, than the Civil dispositions as 
opposed to the Natural dispositions of the law of Things. 

We must look to the details of the law of Persons, and observe 



i. 8.] DE IVBJS DIVISIONE 15 

whether its dispositions have any common character as contrasted 
with the dispositions of the law of Things. The law of Persons, 
in other words, the law of Status, classifies men as slaves and free, 
as citizens (privileged) and aliens (unprivileged), as paterfamilias 
(superior) and filiusfamilias (dependent). The law of Things looks 
at men as playing the parts of contractors or of neighbouring 
proprietors ; in other words, the law of Persons considers men as 
UNEQUALS, the law of Things considers them as EQUALS : the 
one may be defined as the law of relations of inequality, the other as 
the law of relations of equality. 

It may induce us to believe that the law of unequal relations 
and the law of equal relations is a fundamental division of the 
general code, if we consider how essential are the ideas of equality 
and inequality to the fundamental conception of law. If we ventured 
on a Platonic myth, we might say that Zeus, wishing to confer the 
greatest possible gift on the human race, took the most opposite 
and uncombinable things in the universe, Equality and Inequality, 
and, welding them together indissolubly, called the product by the 
name of political society or positive law. 

The assumption will hardly be controverted, that in the relations 
of subject to subject, Positive law, like Ethical law, recognizes, as 
an ideal at least, the identity of the just (lawful) with the equal. 
Inequality, however, is no less essentially involved in positive law. 
We have seen that there is no right and no duty by positive law 
without a legislator and sovereign to whom the person owing the 
duty is in subjection. On the one side weakness, on the other 
irresistible power. Positive rights and duties, then, imply both 
the relation of subject to subject and the relation of subject to 
sovereign or wielder of the sanction, in other words, both the relation 
of equal to equal and the relation of unequal to unequal. It is the 
more surprising that Austin should apparently have failed to seize 
with precision this conception of the law of Persons, as he makes 
the remark, in which the whole truth seems implicitly contained, 
that the bulk of the law of Persons composes the Public, Political, 
or Constitutional code (jus publicum). Political society or govern- 
ment essentially implies subordination. It implies, on the one hand, 
sovereign power reposing in various legislative bodies, distributed, 
delegated, and vested in various corporations, magistrates, judges, 
and other functionaries ; on the other hand, private persons or 
subjects subordinate to the sovereign power and to its delegates and 
ministers. The different forms of government are so many forms 
of subordination, so many relations of superior and inferior, that is, 
so many relations of unequals. Public law, then, is a law of Status, 
and the law of Persons or law of Status in the private code is the 



16 DE IVKE [i. 8. 

intrusion of a portion of the public code into the private code ; or, 
in barbarous and semi-civilized legislations, the disfigurement of 
private law by the introduction of relations that properly belong 
to public law. For instance, the most salient institution of the 
ancient Eoman law of Persons, the power of life and death over 
wife and child that vested in the father of the household, was the 
concession to a subject of an attribute that properly belongs to 
the sovereign or a public functionary. Another institution, slavery, 
placed one subject over another in the position of despotic sovereign. 
The relation of civis to peregrinus may be conjectured to have 
originally been that of patronus to cliens, that is to say, of political 
superior to political inferior. 

Government or positive law has usually commenced in the inva- 
sion by the stronger of the (moral) rights of the weaker ; but so 
necessary is inequality to equality, or subordination to co-ordination, 
that the (moral) crimes of ancient conquerors are regarded with 
less aversion by philosophic historians, as being the indispensable 
antecedents of subsequent civilization. The beginnings, then, of 
positive law have been universally the less legitimate form of in- 
equality, inequality between subject and subject, leaving its traces 
in dispositions of the civil code: but the advance of civilization is 
the gradual elimination of inequality from the law, until little 
remains but that between magistrate and private person, or sove- 
reign and subject. Modern society has advanced so far on the path 
of equalization, in the recognition of all men as equal before the 
law, that the distinctions of status, as they existed in the Koman law 
of persons, are almost obliterated from the private code. Slavery 
has vanished ; parental and marital power are of the mildest form ; 
civilized countries accord the same rights to cives and peregrini ; 
guardians (tutores) in modern jurisprudence, as in the later period 
of Eoman law, are considered as discharging a public function, and 
accordingly the relation of guardian and ward may be regarded as 
a portion of the public code. 

Before we terminate our general remarks on the nature of status, 
it is necessary to distinguish from the law of Persons a department 
of law with which, in consequence of a verbal ambiguity, it is some- 
times confounded. Blackstone deserves credit for having recognized 
Public law as part of the law of Persons ; but he also included under 
the law of Persons that department of primary rights to which 
belong the right of free locomotion, the right of using the bodily 
organs, the right to health, the right to reputation, and other rights 
which perhaps more commonly emerge in the redress meted out for 
their violation, that is, in the corresponding sanctioning rights, the 
right of redress for bodily violence, for false imprisonment, for bodily 



i. 8.] DE IVRIS DIVISIONE 17 

injury, for defamation, and the like. These, however, are not the 
special and exceptional rights of certain eminently privileged classes, 
but the ordinary rights of all the community, at least of all who live 
under the protection of the law; they belong to filiusfamilias as well 
as to paterfamilias, to peregrinus and latinus as well as to civis. 
The rights in question, that is to say, do not belong to the law of 
unequal rights, or the law of Persons, but to the law of equal rights, 
or the law of Things. 

The anomalous institution of slavery, however, furnishes a ground 
for controverting this arrangement ; for, as by this legalized iniquity 
of ancient law, the slave, living as he did, not so much under the 
protection as under the oppression of the law, was denuded of all 
legal rights, including those of which we speak, we cannot say that 
these rights belong to servus as well as to liber. The same, how- 
ever, may be said of contract rights and rights of ownership, for 
the slave had neither part nor lot in these on his own account any more 
than in the right of a man to the use of his own limbs. In defining, 
therefore, jura rerum to be the equal rights of all, we must be 
understood to mean, of all who have any rights. Perhaps, indeed, 
instead of saying that jura rerum are the rights of men regarded as 
equal, it would be more exact to say, that while jus personarum 
regards exclusively the unequal capacities, that is, the unequal rights 
of persons, jus rerum treats of rights irrespectively both of the 
equality and the inequality of the persons in whom they are vested, 
leaving their equal or unequal distribution to be determined by jus 
personarum. 

In order to mark the natural position of these rights in the civil 
code, I have avoided designating them, with Blackstone, by the 
name of Personal rights, a term which I am precluded from using 
by yet another reason. I have employed the terms Personal right 
and Keal right to mark the antithesis of rights against a single 
debtor and rights against the universe. Now the rights in ques- 
tion are rights that imply a negative obligation incumbent on all 
the world, that is to say, in our sense of the words they are not 
Personal, but Real. 

As contrasted with Acquired rights (Erworbene Eechte, jus 
quaesitum) they are called Birthrights or PRIMORDIAL rights 
(Urrechte), names which are open to objection, as they may seem to 
imply a superior dignity of these rights, or an independence, in 
contrast with other rights, of positive legislation, characters which 
the name is not intended to connote. For purposes of classification 
this branch of primary rights is of minor importance. Unlike 
Status, Dominion, Obligation, Primordial rights are not the ground 
of any primary division of the code. The actions founded on the 



WHITTUCK 



18 DE PERSONIS [i.9-12. 

infraction of Primordial rights partly belong to the civil code of 
obligation arising from Tort (e.g. actio injuriarum), partly and 
principally to the criminal code. (On the different interpretations 
which have been put on this threefold division of Private Law 
cf. Moyle's Introduction to the Inst. Just.) 

[ill. DE CONDICIONE HOMINVM.] O N DIVERSITIES OF CONDITION. 

9. Et quidem summa di- 9. The first division of men 
uisio de iure personarum haec by the law of persons is into 
est quod omnes homines aut freemen and slaves, 
liberi sunt aut serui. 

10. Rursusliberorumhorni- 10. Freemen are divided into 
num alii ingenui sunt, alii freeborn and freedmen. 
libertini. 

11. Ingenui suntqui liberi 11. The freeborn are free by 
nati sunt ; libertini qui ex birth ; freedmen by manumission 
iusta seruitute manumissi sunt. from legal slavery. 

12. Rursus libertinorum 12. Freedmen, again, are di- 
(tria sunt genera; nam aut vided into three classes, citizens 
dues Romani aut Latini aut of Kome, Latins, and persons on 
dediticioTum} numero sunt. the footing of enemies sur- 
de quibus singulis dispiciamus ; rendered at discretion. Let us 
ac prius de cMiticiis. examine each class in order, and 

commence with freedmen assimi- 
lated to enemies surrendered at 
discretion. 

12. As Gaius has not marked very strongly the divisions of 
the present book, it may be worth while to consider what are the 
leading branches of the doctrine of Status. Status falls under 
three heads liberty (libertas), citizenship (civitas), and domestic 
position (familia). 

Under the first head, men are divided into free (liberi) and slaves 
(servi) : the free, again, are either free by birth (ingenui) or by 
manumission (libertini). We have here, then, three classes to 
consider: ingenui, libertini, servi. 

Under the second head men were originally divided into citizens 
(cives) and aliens (peregrini). The rights of citizens fall into two 
branches, political and civil, the former being electoral and legisla- 
tive power (jus suffragii) and capacity for office (jus honorum) ; the 
latter relating to property (commercium) or to marriage (connu- 
bium). Aliens were of course devoid of the political portion of 
these rights (suffragium and honores) ; they were also devoid of 
proprietary and family rights as limited and protected by the jus 
civile (commercium and connubium), though they enjoyed corre- 
sponding rights under the jus gentium. At a subsequent period 
a third class were intercalated between cives and peregrini, namely, 
Latini, devoid of the political portion of the rights of citizenship, and 



I. 9-12.] DE CONDICIONE HOMINVM 19 

enjoying only a portion of the private rights of citizenship, com- 
mercium without connubium. Here also, then, we have three 
classes, cives, Latini, peregrini. 

The powers of the head of a family came to be distinguished by 
the terms potestas, man us, mancipium: potestas, however, was 
either potestas dominica, power over his slaves, or potestas patria, 
power over his children, which, at the period when Koman law is 
known to us, were different in kind ; so that the rights of pater- 
familias were really fourfold. Manus or marital power placed the 
wife on the footing of filiafamilias, which was the same as that of 
filiusfamilias. Paterfamilias had a legal power of selling (mancipare) 
his children into bondage ; and mancipium, which is also a word 
used to denote a slave, designated the status of a filiusfamilias who 
had been sold by his parent as a bondsman to another paterfamilias. 
In respect of his purchaser, such a bondsman was assimilated to 
a slave i in respect of the rest of the world, he was free and a 
citizen, though probably his political capacities were suspended as 
long as his bondage (mancipii causa) lasted, 116*. As slaves are 
treated of under the head of libertas, and the status of the wife 
(manus) was not legally distinguishable from that of the son, 
we may say, that in respect of domestic dependence or inde- 
pendence (familia), as well as in respect of libertas and civitas, 
men are divided into three classes, paterfamilias, filiusfamilias, 
and Qui in mancipio est ; paterfamilias alone being independent (sui 
juris), the other two being dependent (alieni juris) in unequal degrees. 

These different classes are not examined by Gaius with equal 
minuteness. Under the first head he principally examines the 
libertini : the classes under the second head, cives, Latini, peregrini, 
are only noticed indirectly, i. e. so far as they present a type for the 
classification of libertini ; and the bulk of the first book of the 
Institutions is devoted to domestic relations. 

In modern jurisprudence, Status having disappeared, the law of 
domestic relations the relation of husband to wife, parent to child, 
guardian to ward constitutes the whole of that of which formerly 
it was only a part, the law of Persons. It differs from the rest of 
the civil code in that, while the relations of Property and Obligation 
are artificial and accidental, the relations governed by the code of 
the Family are natural, and essential to the existence of the human 
race: so much so that the principal relations of the family extend 
to the rest of the animal world, and the portion of the code relating 
to them is called by Ulpian pre-eminently jus Naturale, Dig. 1, 1, 3, 
Inst. 1, 2 pr. Secondly, whereas every feature of Property and 
Obligation is the creation of political law, Domestic life is only 
partially governed by political law, which leaves the greater portion 

C 2 



20 



DE PERSONIS 



[i. 13-27. 



of its rights and duties to be ruled by the less tangible dictates of 
the moral law. 

The pure law of the Family, that is, when we exclude all con- 
sideration of Property and Obligation relating to property, is of 
very moderate compass : but with the pure code of the family it is 
convenient to aggregate what we may call with Savigny, Syst. 57, 
the applied code of the Family, i. e. such of the laws of Property and 
Obligation as concern members of the family group husband and 
wife, parent and child, guardian and ward. The main divisions 
then of the substantive code are Family law Pure and Applied ; the 
law of Ownership ; and the law of Obligation. If, in view of its 
importance, we separate from the law of Ownership the law of 
Rerum Universitates, confining the law of Ownership to the province 
of Ees singulae, we may add to the three we have enumerated a 
fourth division, the law of Successions per universitatem. Sohm, 29. 



[lIII. DE DEDITICIIS VEL LEGE 
AELIA SENTIA.] 

13. Lege itaque Aelia 
Sentia cauetur ut qui serui a 
dominis poenae nomine uincti 
sint, quibusue stigmata in- 
scripta sint, deue quibus ob 
noxam quaestio tormentis ha- 
bita sit et in ea noxa fuisse 
conuicti sint, quiue ut ferro 
aut cum bestiis depugnarent 
traditi sint, inue ludum custo- 
diamue comecti fuerint, et postea 
uel ab eodem domino uel ab 
alio manumissi, eiusdem con- 
dicionis liberi fiant, cuius con- 
dicionis suntperegrini deditim. 

[V. DE PEEEGRINIS DEDI- 
TICIIS.] 

14. Vocantur autem pere- 
grini dediticii hi qui quondam 
aduersus populum Romanum 
armis susceptis pugnauerunt, 
deinde uicti se dediderunt. 

15. Huius ergo turpitu- 
dinis seruos quocumque modo 
et cuiuscumque aetatis manu- 
missos, etsi pleno iure domi- 
norum fuerint, numquam aut 
ciues Romanes aut Latinos fieri 



FREEDMEN ASSIMILATED TO SUR- 
RENDERED FOES AND DISPOSI- 
TIONS OF THE LEX AELIA SENTIA. 

13. The law Aelia Sentia 
enacts that slaves who have been 
punished by their proprietors 
with chains, or have been branded, 
or have been examined with 
torture on a criminal charge, and 
have been convicted, or have been 
delivered to fight with men or 
beasts, or have been committed to 
a gladiatorial school or a public 
prison, if subsequently manu- 
mitted by the same or by another 
proprietor, shall acquire by manu- 
mission the status of enemies 
surrendered at discretion. 



CONCERNING SURRENDERED 
ENEMIES. 

14. Surrendered enemies are 
people who have taken up arms 
and fought against the people of 
Eome and having been defeated 
have surrendered. 

15. Slaves tainted with this 
degree of criminality, by what- 
ever mode they are manumitted 
and at whatever age, and notwith- 
standing the plenary dominion 
of their proprietor, never become. 



I. 13-27.] 

3 -1 



DE LIBERTINIS 



21 



dicemus, sed omni modo dedi- 
ticiorum numero constittd in- 
tellegeinus. 

16. Si uero in nulla tali 
turpitudine sit seruus, manu- 
missum modo ciuem Romanum 
modo Latinum fieri dicemus. 

17. Nam in cuius persona 
tria haec concurrunt, ut maior 
sit annorum triginta, et ex iure 
Quiritium domini, et iusta ac 
legitima inanumissione libere- 
tur, id est uindicta aut censu 
aut testamento, is ciuis Ro- 
manus fit ; sin uero aliquid 
eorum deerit, Latinus erit. 



[FT. DE MANVMISSIONE VEL 
CAVSAE PROBATIONS.] 

18. Quod autem de aetate 
serui requiritur, lege Aelia 
Sentia introductum est. nam 
ea lex minores xxx annorum 
seruos non aliter uoluit manu- 
missos ciues Roman os fieri, 
quam si uindicta, apud con- 
silium iusta causa manumis- 
sionis adprobata, liberati fue- 
rint. 

19. Iusta autem causa 
manumissionis est ueluti si 
quis filium filiamue aut fratrem 
sororemue naturalem,aut alum- 
num, aut paer^agogum, aut 
seruum procuratoris habendi 
gratia, aut ancillam matrimonii 
causa, apud consilium manu- 
mittat. 



[rZJ. DE CONSILIO ADHIBENDO.] 

20. Consiliuin autem ad- 
hibetur in urbe Roma quidem 



citizens of Rome or Latins, but 
can only acquire the status of 
enemies who have surrendered. 

1 6. If the slave has not com- 
mitted offences of so deep a dye, 
manumission sometimes makes 
him a citizen of Rome, sometimes 
a Latin. 

17. A slave in whose person 
these three conditions are united, 
thirty years of age, quiritary 
ownership of the manumitter, 
liberation by a civil and statutory 
mode of manumission, i. e. by 
the form of vindicta, by entry 
on the censor's register, by testa- 
mentary disposition, becomes 
a citizen of Rome: a slave 
who fails to satisfy any one of 
these conditions becomes only a 
Latin. 

ON MANUMISSION AND PROOF OF 
ADEQUATE GKOUNDS OF MANU- 
MISSION. 

18. The requisition of a cer- 
tain age of the slave was intro- 
duced by the lex Aelia Sentia, 
by the terms of which law, unless 
he is thirty years old, a slave 
cannot on manumission become 
a citizen of Rome, unless the 
mode of manumission is by the 
form of vindicta, preceded by 
proof of adequate motive before 
the council. 

19. There is an adequate 
motive of manumission if, for in- 
stance, a natural child or natural 
brother or sister or foster child 
of the manumitter's, or a teacher 
of the manumitter's child, or a 
male slave intended to be em- 
ployed as an agent in business, 
or a female slave about to become 
the manumitter's wife, is presented 
to the council for manumission. 

CONCERNING THE CONSTITUTION OF 
THE COUNCIL. 

20. The council is composed 
in the city of Rome of five sena- 



22 



DE PERSONIS 



[i. 13-27. 

L v a 



quinque senatorum et quinque 
equitum Romanorum puberum ; 
in prouinciis autem uiginti 
recuperatorum ciuium Roma- 
norum, idque fit ultimo die 
conuentus ; sed Romae certis 
diebus apud consilium manu- 
mittuntur. maiores uero tri- 
ginta annorum serui semper 
manuinitti solent, adeo ut uel 
in transitu manumittantur, 
ueluti cum praetor aut pro 
consule in balneum uel in thea- 
trum eat. 

21. Praeterea minor tri- 
ginta annorum seruus [manu- 
missus] potest ciuis Romanus 
fieri, si ab eo domino qui sol- 
uendo non erat, testamento 
eum liberum et heredem re- 

lictum 

(24 uersus in C legi nequeunt) 
Ulp. 1, 14 ; Inst. 1,6, 1 ; Epit. 
1, 1, 2. 

22. homines Latini 

luniani appellantur ; Latini 
ideo, quia adsimulati sunt 
Latini s coloniariis ; luniani 
ideo, quia per legem luniam 
libertatem acceperunt,cum olim 
serui uiderentur esse. 



23. New tamen illis per- 
mittit lex lunia uel ipsis testa- 
mentum facere, uel ex testa- 
mento alieno capere, uel tutores 
testamento dari. Ulp. 20, 14. 

24. Quod autem diximus 
ex testamento eos capere non 
posse, ita intellegemus, ne quid 
cftrecto hereditatis legatorumue 
nomine eos posse capere dica- 
nms: alioquin per fideicom- 
missum capere possunt. 

25. Hi uero qui dediticio- 



tors and five Roman knights 
above the age of puberty : in the 
provinces of twenty recuperators, 
who must be Roman citizens, and 
who hold their session on the last 
day of the assize. At Rome the 
council holds its session on certain 
days appointed for the purpose. 
A slave above the age of thirty 
can be manumitted at any time, 
and even in the streets, when the 
praetor or pro-consul is on his 
way to the bath or theatre. 



21. Under the age of thirty a 
slave becomes by manumission 
a citizen of Rome, when his owner 
being insolvent leaves a will, in 
which he gives him his freedom 
and institutes him his heir (2 
154), provided that no other 
heir accepts the succession. 



22. Slaves manumitted in 
writing, or in the presence of 
witnesses, or at a banquet, are 
called Latini Juniani: Latini be- 
cause they are assimilated in 
status to Latin colonists ( 131), 
Juniani because they owe their 
freedom to the lex Junia, before 
whose enactment they were slaves 
in the eye of the law. 

23. These freedmen, however, 
are not permitted by the lex 
Junia either to make a will or 
to take under the will of another, 
or to be appointed testamentary 
guardians. 

24. Their incapacity to take 
under a will must only be under- 
stood as an incapacity to take 
directly as heirs or legatees, not 
to take indirectly as beneficiaries 
of a trust. 

25. Freedmen classed with 



I. 13-27.] 



DE LIBERTINIS 



23 



rum numero sunt nullo modo 
ex testamento capere possunt, 
non magis quam quilibet pere- 
grinus, -nee ipsi testamentum 
facere possunt secundum id 
quod magis placuit, 

26. Pessima itaque libertas 
eorum est qui dediticiorum 
numero sunt ; nee ulla lege 
aut senatusconsulto aut con- 
stitutione principali aditus illis 
ad ciuitatem Romanam datur. 

27. Quin etiam in urbe 
Roma uel intra centesimum 
urbis Romae miliarium morari 
prohibentur; et si qui contra 
ea fecerint, ipsi bonaque eorum 
publice uenire iubentur ea con- 
dicione, ut ne in urbe Roma 
uel intra centesimum urbis 
Romae miliarium seruiant neue 
umquam manumittantur ; et si 
manumissi fuerint, serui populi 
Romani esse iubentur. et haec 
ita lege Aelia Sentia cowpre- 
hensa sunt. 



surrendered enemies are incapable 
of taking under a will in any 
form, as are other aliens, and are 
incompetent to make a will ac- 
cording to the prevalent opinion. 

26. It is only the lowest 
grade of freedom, then, that is 
enjoyed by freedmen assimilated 
to surrendered aliens, nor does 
any statute, senatusconsult, or 
constitution open to them a way 
of obtaining] Roman citizen- 
ship. 

27. Further, they are forbidden 
to reside in the city of Rome or 
within the hundredth milestone 
from it ; and if they disobey the 
prohibition, their persons and 
goods are directed to be sold on 
the condition that they shall be 
held in servitude beyond the 
hundredth milestone from the 
city, and shall be incapable of 
subsequent manumission, and, if 
manumitted, shall be the slaves 
of the Roman people : and these 
provisions are dispositions of the 
lex Aelia Sentia. 



14. Peregrini dediticii. Cf. Livy 1, 38 ; Theoph. 1, 5, 3. 

15. Pleno jure. Cf. 54 and 2 41. 

17. The earliest forms of manumission depended on the fiction 
that the slave is a freeman. They therefore carry us back to a time 
when manumission was not legally recognized. Cf. Sohm, p. 174, 
n. 4, and p. 58, n. 4. Manumission was either a public or a private 
act. When manumission, besides freeing a slave from the dominion 
of his proprietor, converted him into a citizen of Rome, it was not 
a matter of merely private interest to be accomplished by the sole 
volition of the proprietor. Accordingly, the three modes of manu- 
mission which conferred Roman citizenship on the manumitted 
slave, vindicta, censu, testamento, involved in different forms the 
intervention of the State. 

In manumission by Vindicta the State was represented by the 
praetor. The vindicta or festuca was a rod or staff, representing 
a lance, the symbol of dominion, with which the parties in a real 
action (vindicatio) touched the subject of litigation as they solemnly 



24 DE PEKSONIS [i. 13-27. 

pronounced their claim, 4 16. Accordingly it was used in a suit 
respecting freedom (liberalis causa), for this, as status is a real right 
(jus in rem), was a form of real action, and was sometimes pro- 
secuted by way of genuine litigation, sometimes was merely a solemn 
grant of liberty, that is, a species of alienation by surrender in the 
presence of the magistrate (in jure cessio). In a liberalis causa the 
slave to be manumitted, being the subject of the fictitious litigation, 
could not himself be a party, but was advocated by a vindex or 
adsertor libertatis, who in later times was usually represented by 
the praetor's lictor. The adsertor grasping the slave with one of 
his hands, and touching him with the vindicta, asserted his freedom. 
The proprietor quitting his grasp of the slave (manu mittens) and 
confessing by silence or express declaration the justice of the claim, 
the magistrate pronounced the slave to be free. This procedure, 
which came to be much curtailed, belonging to the praetor's volun- 
tary, not his contentious, jurisdiction, did not require the praetor to 
be seated on his elevated platform in the comitium (pro tribunali), 
but might be transacted by him on the level ground (de piano) ; and 
as the mere presence of the praetor constituted a court (jus), he was 
usually seized upon for the purpose of manumissions as he was 
preparing to take a drive (gestatio), or to bathe, or to go to the 
theatre, 20 (for the different accounts given of this mode of manu- 
mission see Roby, Private Law, 1, p. 26, n. 1). 

In manumission by the Census the interests of the State were 
represented by the censor. Censu manumittebantur olim qui 
lustrali censu Romae jussu dominorum inter cives Romanos 
censum profitebantur, Ulpian, 1, 8. 'Registry by the censor was 
an ancient mode of manumission by the quinquennial census at 
Rome when a slave at his master's order declared his right 
to make his return of property (professio) on the register of 
Roman citizens.' Ex jure civili potest esse contentio, quum 
quaeritur, is qui domini voluntate census sit, continuone an ubi 
lustrum conditum liber sit, Cic. De Orat. 1, 40. 'It is a question 
of civil law, when a slave is registered with his owner's sanction, 
whether his freedom dates from the actual inscription on the 
register or from the close of the censorial period.' The census 
was a republican institution, which had been long obsolete when 
Gaius wrote. Ulpian, 1. c., speaks of it as a thing of the past. 
Since the Christian era only three had been held, the last under 
Vespasian, A. D. 74. 

Wills were originally executed at the Comitia calata, 2 101, 
where the dispositions of the testator, including his donations of 
freedom, received legislative sanction, being converted into a private 
law by the ratification of the sovereign assembly. When a new 



i. 13-27.] DE LIBERTINIS 25 

form of will was introduced, 2 102, testators retained their power 
of manumission, although the people here at the utmost were 
only symbolically represented by the witnesses of a mancipation. 
Bequests of liberty were either direct or indirect. A direct bequest 
of liberty (directo data libertas) made the manumitted slave a freed- 
man of the testator (libertus orcinus, Inst. 2, 24, 2): an indirect 
bequest, that is, a request to the heir to manumit the slave (fidei- 
commissaria libertas), made the slave on manumission a freedman 
of the heir, 2 266. 

18. The lex Aelia Sentia passed in the reign of Augustus, A.D. 4, 
and named after the consuls Sextus Aelius Catus and Caius Sentius 
Saturninus, was intended to throw obstacles in the way of acquir- 
ing Koman citizenship (Sueton. Aug. 40). One of its enactments 
provided that a slave under the age of thirty could not be made 
a citizen unless manumitted by vindicta, after proof of adequate 
motive before a certain judicial board. We may inquire what would 
be the effect of manumission if the causae probatio were omitted. 
Inscription on the censor's register, if in use, would probably have 
been null and void, as this ceremony was either a mode of making 
a Eoman citizen or it was nothing. Testamentary manumission, as 
we learn from Ulpian, 1, 12, left the man legally a slave, but gave 
him actual liberty (possessio libertatis, in libertate esse, as opposed 
to libertas), a condition recognized and protected by the praetor. 
Manumission by vindicta left him still a slave (according to the 
MS. of Ulpian, ib. the slave of Caesar). Either the lex Aelia Sentia 
or lex Junia, it is uncertain which (cf. 29, 31 ; Ulpian, 1. c.), 
apparently provided that, in the absence of causae probatio, the 
minor triginta annis manumissus should belong to the new class 
which it introduced, namely, the Latini. 

19. Alumnus denotes a slave child reared by the manumitter, 
as appears from the following passage : Alumnos magis mulieribus 
conveniens est manumittere, sed et in viris receptum est, satisque 
est permitti eum manumitti in quo nutriendo propensiorem animum 
fecerint, Dig. 40, 2, 14 pr. 'Foster children are more naturally 
manumitted by women than by men, though not exclusively ; and 
it suffices to allow the manumission of a child who has won his 
master's affection in the course of his education.' (For the custom 
derived from Greece of employing slaves as paedagogi in Koman 
households see Smith's Diet, of Greek and Koman Antiq. s. v.) 

20. The Equites Romani, who at Rome composed a moiety 
of the council mentioned in the text, were either Equites or Equites 
equo publico (for the title eques Romanus equo publico, which appears 
in inscriptions, see Wilmann's Index Inscriptionum, 2178, 2182 ; cf. 
Greenidge, Infamia, p. 88). Eques was such merely by his census : 



26 DE PERSONIS [i. 13-27. 

Eques equo publico was a youth nominated by the emperor to the 
turmae equitum ; not, however, intended for actual service with the 
legions, but merely marked out as an expectant of future employ- 
ment in higher public functions, military or civil. The title of 
Princeps juventutis, often conferred by the emperors on their suc- 
cessors designate, denoted the leader of the Equites equo publico. 
This distinction of classes among Equites lasted down to the time 
of Hadrian, and perhaps later. In the time of Augustus, and sub- 
sequently, the list of judices (album judicum) was, according to 
Mommsen (Staatsr. 3, p. 535), taken simply from the Equites 
equo publico, the Senatores being no longer a decuria. Augustus 
added a new decuria, the Ducenarii, those whose census amounted 
to 200,000 sesterces, who judged minor cases ; and subsequently 
Caligula added a fifth (cf. Greenidge's Koman Public Life). 

Kecuperators are judges not taken from the panel (album judi- 
cum) ; see Greenidge's Legal Procedure of Cicero's Time, p. 266. 

21. Ulpian says, 1, 14, that a slave either under thirty years of 
age, or one who otherwise would only have become dediticius, or 
a freedman of the lowest class, if he is instituted the heres neces- 
sarius of an insolvent, becomes civis Komanus; cf. 2 154. 
Mommsen would supplement the text in this section with the 
following words ' relictum alius heres nullus excludit neque ullus 
alius ex eo testamento heres existat idque eadem lege cautum est.' 
In respect of what is missing in the remainder of the lacuna cf. note 
to Huschke's Gaius. 

When manumission was a purely private act, it could not confer 
Koman citizenship ; it could only make a dediticius or a latinus. 

The codex Alaricianus or Breviarium Alaricianum, a code pro- 
mulgated A.D. 506 by Alaric II, king of the Visigoths of Spain and 
Gaul, contained, besides extracts from the codex Theodosianus (pro- 
mulgated A.D. 438), a selection from the Sententiae of Paulus and 
an epitome of these Institutes of Gaius. From this epitome it 
appears that in the paragraphs now obliterated Gaius proceeded to 
explain the modes of private manumission by which a slave became 
Latinus Junianus, and instanced writing (per epistolam), attestation 
of witnesses (inter amicos), invitation of the slave to sit with other 
guests at the table of his master (convivii adhibitione). 

22. The lex Junia, as this law is called by Gaius and Ulpian 
(3, 3), or lex Junia Norbana, the title given to it by Justinian 
(Inst. 1, 5, 3), may be regarded a.s of uncertain date ; the common 
opinion based on the word Norbana has been that it was passed in 
the reign of Tiberius, A. D. 19, fifteen years after the lex Aelia 
Sentia in the consulate of Marcus Junius Silanus and Lucius 
Norbanus Balbus, but it is now thought by some well-known 



I. 13-27.] DE LIBERTINIS 27 

writers to be earlier than the lex Aelia Sentia ; thus Mommsen 
(Staatsr. 3, 626) is inclined to put it back to the end of the free republic 
(cf. Schneider, Zeitschr. d. Sav. Stiftung v. E. A. 1884). It denned 
and modified the status conferred by such acts of private manu- 
mission as were probably mentioned in this paragraph, converting 
Praetoris tuitione liber into ipso jure liber, or possessio libertatis 
into genuine libertas ; with, however, sundry grievous stints and 
deductions. Under this statute the freedman was nominally assimi- 
lated to Latinus coloniarius, the citizen of a Koman colony in 
Latium ; that is, had a moiety of the private rights composing civitas 
Komana or jus Quiritium, possessing commercium without con- 
nubium. As incapable of connubium or civil marriage, the Latinus 
was incapable of patria potestas over his children and of agnatio or 
civil relationship. Though incapable of civil marriage he was of 
course capable of gentile marriage (matrimonium, uxorem liberorum 
quaerendorum causa ducere) and of natural relationship (cognatio), 
just as an alien (peregrinus), though, by want of commercium, 
incapable of dominion ex jure Quiritium, was capable of bonitary 
ownership (in bonis habere) under the jus gentium. 

In virtue of commercium, the Latinus Junianus was capable of 
Quiritary ownership, of civil acquisition and alienation (usucapio, 
mancipatio, in jure cessio), contract (obligatio), and action (vindi- 
catio, condictio), like a Koman citizen ; but in respect of testamentary 
succession his rights were very limited. He was said to have 
testamentary capacity (testamenti factio), Ulpian, 20, 8 ; but this 
only meant that he could perform the part of witness, or familiae 
emptor, or libripens (2 104), i.e. could assist another person to 
make a valid will ; not that he could take under a will either as 
heir or as legatee, or could dispose of his own property by will, 
Ulpian, 20, 14. At his death all his property belonged to his 
patron, as if it were the peculium of a slave, 3 56. In fact, as 
Justinian says : Licet ut liberi vitam suam peragebant, attamen 
ipso ultimo spiritu simul animam atque libertatem amittebant, 
Inst. 3, 7, 4. ' Though free in their lifetime, the same moment 
that deprived them of life reduced them to the condition of slaves.' 

Although in the person of libertus himself, Latinitas retained 
many traces of its servile origin, yet it was not so for his posterity ; 
these disabilities only attached to the original freedman, not to his 
issue. The son of the dediticius or Latinus Junianus, though 
reduced to absolute penury by the confiscation of the parental 
property to the patron, began, and continued, the world with 
the ordinary capacities, respectively, of peregrinus and Latinus 
coloniarius, and was under no legal obligations to the patron of his 
father. 



DE PERSONIS 



[i. 28-35. 



Long before the time of Gaius, Latinitas or Latium had only 
a juristic, not an ethnographic signification. Cf. 79. Soon after 
the Social War (B.C. 91) all Italy received the ci vitas Komana. 
Originally Gallia Cispadana (Southern Lombardy) had civitas 
Komana, while Gallia Transpadana (Northern Lombardy) had only 
Latinitas, but Gallia Transpadana afterwards obtained civitas. 
Latinitas was a definite juristic conception, and Latin status was 
conferred as a boon on many provincial towns and districts that had 
no connexion with Latium or its races. Vitellius is carped at by 
Tacitus for his lavish grants of Latinity (Latium vulgo dilargiri, 
Hist. 3, 55). Hadrian made many similar grants (Latium multis 
civitatibus dedit, Spartian, Had. 21), and Vespasian conferred Latin 
rights on the whole of Spain, Pliny, Hist. Nat. 3, 4. See 131 
Comm. 



[QVIBVS MODIS LATINI AD civi- 

TATEAf KOMANAJf PEEVENIANT.] 

28. Latini uero multis 
modis ad ciuitatem Romanam 
perueniunt. 

29. Statim enim ex lege 
Aelia Sentia minores triginta 
annorum manumissi et Latini 
facti si uxores duxerint uel 
clues Romanas uel Latinas co- 
loniarias uel eiusdem condi- 
cionis, cuius et ipsi essent, idque 
testati fuerint adhibitis non 
minus quam septem testibus 
ciuibus Romania puberibus, et 
filium procreauerint, cum is 
films anniculus esse coeperit, 
datur eis potestas per earn 
legem adire praetorem uel in 
prouinciis praesidem prouinciae, 
et adprobare se ex lege Aelia 
Sentia uxorem duxisse et ex ea 
filium anniculum habere ; et si 
is apud quern causa probata 
est id ita esse pronuntiauerit, 
tune et ipse Latinus et uxor 
eius, si et ipsa (eiusdem con- 
dicionis sit, etfilius, si et ipse) 
eiusdem condicionis sit, ciues 
Roman! esse iubentur. 

Ulp.3,3. 



MODES BY WHICH LATIN FREEDMEN 
BECOME ROMAN CITIZENS. 

28. Latins have many avenues 
to the Roman citizenship. 

29. For instance, the lex Aelia 
Sentia enacts that when a slave 
below the age of thirty becomes 
by manumission a Latin, if he 
take to himself as wife a citizen of 
Rome, or a Latin colonist, or a 
freedwoman of his own condition, 
and thereof procure attestation by 
not less than seven witnesses, 
citizens of Rome above the age of 
puberty, and begets a son, on the 
latter attaining the age of a year, 
he is entitled to apply to the 
praetor, or, if he reside in a pro- 
vince, to the president of the 
province, and to prove that he 
has married a wife in accordance 
with the lex Aelia Sentia, and 
has had by her a son who has 
completed the first year of his age : 
and thereupon if the magistrate 
to whom the proof is submitted 
pronounce the truth of the de- 
claration, that Latin and his wife, 
if she is of the same condition, 
and their son, if he is of the same 
condition, are declared by the 
statute to be Roman citizens. 



I. 28-35.] Q. M. LATINI AD CIVITATEM R. P. 29 



30. Ideo autem in huius 
persona adiecimus ' si et ipse 
eiusdem condicionis sit,' quia 
si uxor Latini ciuis Romana 
est, qui ex ea nascitur, ex nouo 
senatusconsulto, quod auctore 
diuo Hadriano factum est, ciuis 
Romanus nascitur. 

Cf. 80 ; Ulp. 1. c. 

31. Hoc tamen ius adi- 
piscendae ciuitatis Romanae 
etiamsi soft minores triginta 
annorum manumissi et Latini 
facti ex lege Aelia Sentia habue- 
runt, tamen postea senatuscon- 
sulto, quod Pegaso et Pusione 
consulibus factum est, etiam 
maioribus triginta annorum 
manu missis Latinis factis con- 
cess um est. 

32. Ceterum etiamsi ante 
decesserit Latinus, quam anni- 
culi filii causam probauerit, 
potest mater eius causam pro- 
bare, et sic et ipsa fiet ciuis 

Romana, si Latina fuerit 1 

permissum 1 <?ui- 

busdam 1 ipse filius 

ciuis Romanus sit, quia ex ciue 
Romana matre natus est, tamen 
debet causam probare ut suus 
heres patri fiat. 



32 a. (quae) uero diximus 
de filio annicul(o, eadem et de 
filia annicula) dicta intelle- 



gemus. 



326. 



id 



est fiunt ciues Romani, si 
Romae inter uigiles sex annis 
militauerint. postea dicitur 
factum esse senatusconsultum, 
quo data est illis ciuitas 



30. The reason why I added, 
when I mentioned the son, if of 
the same condition, was this, that 
if the wife of the Latin is a citizen 
of Rome, the son, in virtue of the 
recent senatusconsult made on 
the motion of the late Emperor 
Hadrian, is a citizen of Rome 
from the date of his birth. 

31. This capacity of acquiring 
Roman citizenship, though by 
the lex Aelia Sentia exclusively 
granted to those under thirty 
years of age who had become 
Latins by this statute, by a sub- 
sequent senatusconsult, made in 
the consulship of Pegasus and 
Pusio, was extended to all freed- 
men who acquire the status of 
Latins, even though thirty years 
old when manumitted. 

32. If the Latin die before 
proof of his son's attaining the 
age of a year the mother may 
prove his condition, and there- 
upon both she and her son, if she 
be a Latin, become citizens of 
Rome. And if the mother fails 
to prove it, the tutors of the son 
may do so or the son himself 
when he has attained the age of 
puberty. If the son himself is a 
Roman citizen owing to the fact 
of his having been born of a 
Roman citizen mother, he must 
nevertheless prove his condition 
in order to make himself his 
father's self successor. 

32 a. What has been said 
about a son of a year old, must 
be understood to be equally ap- 
plicable to a daughter of that 
age. 

32 &. By the Visellian statute 
those either under or over thirty 
years of age, who when manu- 
mitted become Latins, acquire the 
jus quiritium, i. e. become Roman 
citizens, if they have served for 
six years in the guards at Rome. 



30 



DE PERSONIS 



[i. 28-35. 



Romana, si triennium militiae 
expleuerint. Ulp. 3, 5. 



32 c. Item edicto Claudii 
Latini ius Quiritium conse- 
cuntur, si nauem marinam ae- 
dificauerint, quae non minus 
quam decem milia modiomm 
frumenti capiat, eaque nauis 
uel quae in eius locum sub- 
stituta stt sex annis frumen- 
tum Romam portauerit. 

Ulp. 3, 6. 

33. Praeterea a .ZVerone 
constitutum est ut si Latinus 
qui patrimonium sestertium cc 
m ilium plurisue habebit in 
urbe Roma donmm aedifica- 
uerit, in quam non minus quam 
partem dimidiam patrimonii 
sui inpenderit, ius Quiritium 
consequatur. 

Tac.Ann.15,43; Ulp. 3,1. 

34. Denique Traianus con- 
stituit ut si Latinus in urbe 
trienmo pistrinum exercuerit, 
in quo in dies singulos non 
minus quam centenos modios 
frumenti ^)inseret, ad ius Quiri- 
tium peruenia. Ulp. 1. c. 

35. . -| 1 1 

sequi 1 maiores tngmta 

annorum manumissi et Latini 
facti 1 ius Quiri- 
tium consequi n|ginta 

annorum manumittant 1 

1 manumissus uindicta 

aut censu aut testamento 

ciuis Romanus] libertus 

fit qui euro, iterauerit. ergo si 
seruus in | bonis tuis, ex iure 
Quiritium meus erit, Latinus 
quidem a te solo fieri potest, 
iterari autem a me, non etiam 
a te potest, et eo modo meus 
libertus fit. sed et ceteris modis 



A subsequent senatusconsultum 
is said to have been passed, by 
which Roman citizenship was con- 
ferred on Latins, who completed 
three years' active military service. 
32 c. Similarly by an edict of 
Claudius Latins acquire the right 
of citizenship, if they build a ship 
which holds 10,000 modii of corn, 
and this ship or one substituted 
for it imports corn to Rome for 
six years. 



33. Nero further enacted that 
if a Latin having property worth 
200,000 sesterces or more, build 
a house at Rome on which he ex- 
pends not less than half his pro- 
perty, he shall acquire the right 
of citizenship. 



34. Lastly, Trajan enacted that 
if a Latin carry on the business of 
miller in Rome for three years, 
and grinds each day not less than 
a "hundred measures of wheat, he 
shall attain Roman citizenship. 

35. Slaves who become Latins 
either because they are under 
thirty at the time of their manu- 
mission, or having attained that 
age because they are informally 
manumitted, may acquire Roman 
citizenship by re-manumission in 
one of the three legal forms, and 
they are thereby made freedmen 
of their re-manumitter. If a slave 
is the bonitary property of one 
person and the quiritary property 
of another he can be made a Latin 
by his bonitary owner, but his 
re-manumission must be the act 
of his quiritary owner, and even 
if he acquires citizenship in other 



I. 28-35.] Q. M. LATINI AD CIVITATEM R. P. 31 

ius Quiritium consecutus meus ways he becomes the freedman of 

libertus fit. bonorum autem his quiritary owner. The praetor, 

quae -, cum is morietur, however, invariably gives the 

reliquerit tibi possessio datur, bonitary owner possession of the 

quocumque modo ius Quiritium inheritance of such freedman. A 

fuerit consecutus. quodsi cuius slave in whom his owner has both 

et in bonis et ex iure Quiritium *??*?* and q^tary property, 

., . r j if twice manumitted by his owner, 

sit manumissus, ab eodem sci- ire b the ^ manu . 

licet et Latinus fieri potest et mi i ion 4 the La t in statuSj and by 
ius Quiritium consequi. the second Koman citizenship. 

Ulp. 3, 1-4. 

29. This enactment is stated by Ulpian to belong to the lex 
Junia (Ulp. 3, 3), cf. 18, comm. 

Pronuntiaverit. The decision (sententia) of the judex in a judicium 
ordinarium was either condemnatio or absolutio of the defendant. 
In actions in which the case was left to the arbitrium of a judex 
this was apparently preceded by pronuntiatio, a declaration of the 
rights of the parties. This appears from the following, among 
other passages: Sed et si fundum vindicem meum esse, tuque 
confessus sis, perinde teneberis atque si dominii mei fundum esse 
pronuntiatum esset, Dig. 42, 2, 6, 2. Si quum de hereditate inter 
me et te controversia esset, juravero hereditatem meam esse, id 
consequi debeo quod haberem si secundum me de hereditate pro- 
nuntiatum esset, Dig. 12, 2, 10, 3. When the pronuntiatio was for 
the plaintiff, if the defendant obeyed the arbitrium or provisional 
order of the judex by making restitution, there was no subsequent 
condemnatio. Cf. 4 49. In the form of real action, called a prae- 
judicium, that is, a preliminary issue of fact, the pronuntiatio formed 
the whole result of the trial, and was not followed by sententia. 
Similarly, when a Latinus laid his claim of Eoman citizenship 
before the praetor under this enactment of the lex Aelia Sentia, the 
result of the extraordinaria cognitio of the praetor was merely 
a pronuntiatio without any subsequent decretum. 

31. Pegasus and Pusius were consuls in the reign of Vespasian. 
Inst. 2, 23, 5. 

32 &- 35. For references to the Visellian law cf. Cod. 9, 21 
and 31. It was probably passed A.D. 24, when Serv. Cornelius 
Cethegus and L. Visellius Varro were consuls (but see Mommsen, 
Staatsr. 3, 424). Besides the method provided by the lex Aelia 
Sentia, and by the Senatusconsultum mentioned in 31, Latinus or 
Latina might attain the Eoman citizenship under the following con- 
ditions : 

1. By erroris causae probatio, i.e. if Latinus marry Peregrina, 
believing her to be Latina or Civis, 70 ; or Latina marry Pere- 



32 DE PERSONIS [T. 28-35. 

grinus, believing him to be Latinus, 69 ; or if Civis, believing 
himself to be Latinus or Peregrinus, marry Latina, 71; or if Civis 
marry Peregrinus, believing him to be Civis or Latinus ; or if Civis 
marry Latina or Peregrina, believing her to be Civis Romana, 67 ; 
on birth of a child and on proof of this mistake, the Latinus or 
Latina and their offspring acquire the citizenship. 

2. By magistracy in a Latin colony Latinus becomes Civis Ro- 
manus, 95, 96. 

3. By re-manumission (iteratio), i.e. on slaves under thirty when 
manumitted acquiring Latinity by one of the private modes of 
manumission, a subsequent manumission by one of the public 
modes, vindicta, censu, or testamento, converted them from Latini 
into Gives, 35, and Ulp. 3, 4. 

4. Under the lex Visellia above mentioned by six years' service 
in the Eoman guards (si inter vigiles Komae sex annos militaverit, 
Ulp. 3, 5). A decree of the senate made three years' service a 
sufficient title, 32 &. Compare the provision of 13 Geo. II, c. 3, 
whereby 'every foreign seaman who in time of war serves two years 
on board an English ship, and all foreign protestants serving two 
years in a military capacity in the American colonies, are naturalized. 

5. Under a constitution of Nero by building a house in Eome 
(aedificio, Ulp. 3, 1), 33. 

6. Under an edict of Claudius by building a ship of 10,000 modii 
and importing corn to Kome for six years, 32 c, Sueton. Claud., 
Ulp. 3, 6. Compare the English law by which all foreign pro- 
testants employed three years in the whale fishery are naturalized, 
except as to capacity for public office. 

7. Under a constitution of Trajan by building a mill and bake- 
house for the supply of Rome (pistrino, Ulp. 3, 1), 34. 

8. By bearing three children, Ulp. 3, 1. 

9. By imperial grant (beneficio principali, Ulp. 3, 2). This and 
the previous mode of acquiring citizenship were perhaps men- 
tioned by Gaius at the beginning of 35. 

Civitas Romana and Jus Quiritium are synonymous, but the 
former term was always used when citizenship was conferred on 
a Peregrinus, the latter generally when it was conferred on Latinus 
Junianus : e. g. Quare rogo, des ei civitatem, est enim peregrinae 
conditionis, manumissus a peregrina. . . . Idem rogo, des ius 
Quiritium libertis Antoniae Maximillae . . . quod a te, petente 
patrona, peto, Pliny to Trajan, 10, 4. Ago gratias, domine, quod 
et ius Quiritium libertis necessariae mihi feminae et civitatem 
Romanam Harpocrati, iatraliptae meo, sine mora indulsisti, ibid. 
10, 5. Civitas Romana, however, was sometimes used in speaking 
of the enfranchisement of Latinus, as we see from 28. 



I. 36-41.] QVIBVS MANVMITTERE NON LICET. 33 



36. | Non tamen cuicum- 

que uolenti manumittere licet. 

Inst. 1, 6 pr. 

37. Nam is qui \ in 
fraudem creditorum uel in 
fraudem patroni manumittit, 
nihil agit, quia lex Aelia Sentia 
inpedit libertatem. 

Inst. 1. c.,Ulp. 1,15. 

38. Item eadem lege mi- 
nori xx annorum domino non 
aliter manumittere permittitur, 
quam [si] uindicta apud con- 
silium iusta causa manumis- 
sionis adprobata [fuerit]. 

Inst. 1, 6, 4. 

39. lustae autem causae 
manumissionis sunt ueluti si 
quis p'atrem aut matrem aut 
paedagogum. aut conlactaneum 
manumittat. sed et illae causae, 
quas superius in seruo minore 
xxx annorum exposuimus, ad 
hiinc quoque casum de quo 
loquimur adferri possunt. item 
ex diuerso hae causae, quas in 
minore xx annorum domino 
rettulimus, porrigi possunt et 
ad seruum minor em xxx an- 
norum. Inst. 1, 6, 4, 5. 

40. Cum ergo certus modus 
manumittendi minoribus xx 
annorum dominis per legem 
Aeliam Sentiam constitutus sit, 
euenit ut qui xnn annos aetatis 
expleuerit, licet testamentum 
facere possit et in eo heredem 
sibi instituere legataque relin- 
quere possit, tamen, si adhuc 
minor sit annorum xx, liberta- 
tem seruo dare non possit. 

Inst. 1, 6, 7. 

41. Et quamuis Latinum 
facere uelit minor xx annorum 
dominus, tamen nihilo minus 



36. Not every owner who is 
so disposed is permitted to manu- 
mit. 

37. An owner who would 
defraud his creditors or his own 
patron by an intended manumis- 
sion, attempts in vain to manumit, 
because the lex Aelia Sentia pre- 
vents the manumission. 

38. Again, by a disposition of 
the same statute, before attaining 
twenty years of age, the only 
process by which an owner can 
manumit is fictitious vindication, 
preceded by proof of adequate 
motive before the council. 

39. It is an adequate motive 
of manumission, if the father, for 
instance, or mother or teacher or 
foster-brother of the manumitter, 
is the slave to be manumitted. 
In addition to these, the motives 
recently specified respecting the 
slave under thirty years of age 
may be alleged when the manu- 
mitting owner is under twenty ; 
and, reciprocally, the motives 
valid when the manumitting 
owner is under twenty are ad- 
missible when the manumitted 
slave is under thirty. 

40. As, then, the lex Aelia 
Sentiaimposes acertain restriction 
on manumission for owners under 
the age of twenty, it follows that, 
though a person who has com- 
pleted his fourteenth year is com- 
petent to make a will, and therein 
to institute an heir and leave 
bequests ; yet, if he has not at- 
tained the age of twenty, he can- 
not therein enfranchise a slave. 



41. And even to confer the 
Latin status, if he is under the 
age of twenty, the owner must 



34 



DE PERSONIS 



[i. 42-47. 



debet apud consilium causam satisfy the council of the adequacy 
probare et ita postea inter of his motive before he manumits 
amicos manumittere. the slave in the presence of 

witnesses. 

41. Justinian, having first reduced the age from 20 to 17, 
or the beginning of the eighteenth year (Inst. 1, 6, 7), finally per- 
mitted minors to enfranchise by will as soon as they could make 
a valid will, i.e. at the age of 14 (Novella) 119, 2). He mentions 
that the lowest class of freedmen (dediticia libertas) had long been 
obsolete, and formally abolished the second class (latina libertas), 
converting informal modes of making Latinus, such as per epistolam, 
inter amicos, into modes of making Civis Komanus, and declaring 
the rest inoperative, Cod. 7, 6. Cf. Moyle, Comm. Inst* 1 , 5. 



DE LEGE FVFIA CANINIA. 



42. Praeterea lege Fufia 
Caninia certus modus consti- 
tutus est in seruis testamento 
manumittendis. Inst. 1, 7, 1. 

43. Nam ei qui plures 
quam duos neque plures quam 
decem seruos habebit usque ad 
partem dimidiam eiue numeri 
manumittere permittitur ; ei 
uero, qui plures quam x neque 
plures quam xxx seruos habebit 
usque ad tertiam partem eius 
numeri manumittere permitti- 
tur. at ei qui plures quam xxx 
neque plures quam centum 
habebit usque ad partem 
quartam potestas manumit- 
tendi rfatur. nouissime ei qui 
plures quam c nee plures quam 
D habebit, non plures manumit- 
tere permittitur qua?rt quintain 

partem; neque plures { ) 

tur : sed praescribit lex, ne cui 
plures manumittere liceat quam 
C. quodsi quis unum seruum 
omnino aut duos habet, ad bane 
legem non pertinet et ideo 
liberamhabetpotestatern manu- 
mittendi. 



42. Moreover, by the lex Fufia 
Caninia a certain limit is fixed to 
the number of slaves who can 
receive testamentary manumis- 
sion. 

43. An owner who has more 
than two slaves and not more 
than ten is allowed to manumit 
as many as half that number ; he 
who was more than ten and not 
more than thirty is allowed to 
manumit a third of that number ; 
he who has more than thirty 
and not more than a hundred is 
allowed to manumit a fourth ; 
lastly, he who has more than a 
hundred and not more than five 
hundred is allowed to manumit 
a fifth : and, however many a man 
possesses, he is never allowed to 
manumit more than this number, 
for the law prescribes that no one 
shall manumit more than a hun- 
dred. On the other hand, if a 
man has only one or only two, 
the law is not applicable, and the 
owner has unrestricted power of 
manumission. 



I. 42-47.] DE LEGE FVFIA CANINA 



35 



44. Ac ne ad eos quidem 
omnino haec lex pertinet qui 
sine testam#fto manumittuni. 
itaque licet iis, qui uindicta aut 
censu aut inter amicos inanu- 
mittunt, totam fainiliam libe- 
rare, scilicet si alia causa non. 
inpediat libertatem. 

46. Nam et si iestamento 
scriptis in orbem seruis libertas 
data sit, quia nullus ordo manu- 
missionis inuenitur, nulli liberi 
erunt, quia lex Fuh'a Caninia 
quae in fraudem eius facta sint 
rescindit. sunt etiam specialia 
senatusconsulta,quibus rescissa 
sunt ea quae in fraudem eius 
legis excogitata sunt. 

47. In summa sciendum 
est, (cum) lege Aelia Sentia 
cautum sit, ut creditorum frau- 
dandorum causa manumissi 
liberi non fiant, hoc etiam ad 
peregrines pertinere (senatus 
ita censuit ex auctoritate 
Hadriani), cetera uero iura eius 
legis ad peregrines non per- 
tinere. 



44. Nor does the statute apply 
to any but testamentary manu- 
mission, so that by the form 
of vindicta or inscription on 
the censor's register, or by at- 
testation of friends, a proprietor 
of slaves may manumit his whole 
household, provided that there is 
no other let or hindrance to im- 
pede their manumission. 

46. If a testator manumits in 
excess of the permitted number, 
and arranges their names in a 
circle, as no order of manumission 
can be discovered, none of them 
can obtain their freedom, as 
both the lex Fufia Caninia itself 
and certain subsequent decrees 
of the senate declare null and 
void all dispositions contrived 
for the purpose of eluding the 
statute. 

47. Finally, it is to be noted 
that the provision in the lex Aelia 
Sentia making manumissions in 
fraud of creditors inoperative, was 
extended to aliens by a decree of 
the senate passed on the proposi- 
tion of the Emperor Hadrian ; 
whereas the remaining disposi- 
tions of that statute are inapplic- 
able to aliens. 



47. The lex Fufia Caninia, passed under Augustus (Sueton. 
Aug. 40), to prevent the degradation of citizenship by testators abusing 
their testamentary right of manumission, was generally called the 
lex Furia Caninia before the manuscript of Gaius was re-examined 
by Studemund ; it was abrogated by Justinian. See Inst. 1, 7. 
The clause of the lex Aelia Sentia referred to in the text was retained 
by Justinian. Inst. 1, 6 pr. 



DE HIS QVI SVI VEL ALIENI IVEIS SINT. 



48. Sequitur de iure per- 
sonarum alia diuisio. nam 
quaedam personae sui iuris 
sunt, quaedam alieno iuri 
subiectae sunt. Inst. 1, 8 pr. 



48. Another division in the 
law of Persons classifies men as 
either dependent or independent 



D 2 



36 



DE PERSONIS 



[i. 48-54. 



49. Rursus earum per- 
sonarum, quae alieno iuri sub- 
iectae sunt, aliae in po testate, 
aliae in manu, aliae in mancipio 
sunt. Inst. 1. c. 

50. Videamus mmc de his 
quae alieno iuri subiectae sint ; 
{nam,} si cognouerimus quae 
ist&e personae sint, simul in- 
tellegemus quae sui iuris sint. 

O * Til 

Inst. 1. c. 

51. Ac prius dispiciamus 
de iis qui in aliena potestate 
sunt. list. 1. c. 

52. In potestate itaque 
sunt serui dorainorum. quae 
quidem potestas iuris gentium 
est : nam apud omnes peraeque 
gentes animaduertere possumus 
dominis in seruos uitae necis- 
que potestatem esse ; et quod- 
cumque per seruum adquiritur, 
id domino adquiritur. 

Inst. 1,8, 1. 

53. Sed hoc tempore neque 
ciuibus Romanis, nee ullis aliis 
hominibus qui sub imperio po- 
puli Romani sunt, licet supra 
modum et sine causa in seruos 
suos saeuire ; nam ex constitu- 
tions imperatoris Antonini qui 
sine causa seruum suum occi- 
derit, non minus teneri iubetur, 
quam qui alienum seruum occi- 
derit. sed et maior quoque 
asperitas dominorum per eius- 
dem principis constitutionem 
coercetur ; nam consultus a 
quibusdam praesidibus pro- 
uinciarum de his seruis, qui ad 
fana deorum uel ad statuas 
principum confugiunt, prae- 
cepit ut si intolerabilis uideatur 
dominorum saeuitia cogantur 
seruos suos uendere. et utrum- 
que recte fit ; male enim nostro 
iure uti non debemus; qua 



49. Those who are dependent 
or subject to a superior, are either 
in his power, in his hand, or in 
his mancipation. 

50. Let us first explain what 
persons are dependent on a 
superior, and then we shall know 
what persons are independent. 



51. Of persons subject to a 
superior, let us first examine who 
are in his power. 

52. Slaves are in the power of 
their proprietors, a power recog- 
nized by jus gentium, since all 
nations present the spectacle of 
masters invested with power of 
life and death over slaves; and 
(by the Roman law) the owner 
acquires everything acquired by 
the slave. 



53. But in the present day 
neither Roman citizens, nor any 
other persons under the empire 
of the Roman people, are per- 
mitted to indulge in excessive or 
causeless harshness towards their 
slaves. By a constitution of the 
Emperor Antoninus, a man who 
kills a slave of whom he is 
owner, is as liable to punishment 
as a man who kills a slave of 
whom he is not owner : and in- 
ordinate cruelty on the part of 
owners is checked by another 
constitution whereby the same 
emperor, in answer to inquiries 
from presidents of provinces con- 
cerning slaves who take refuge at 
temples of the gods, or statues 
of the emperor, commanded that 
on proof of intolerable cruelty a 
proprietor should be compelled to 
sell his slaves: and both ordi- 
nances are just, for we ought not 



I. 48-54.] DE POTESTATE DOMINICA 37 

ratione et prodigis interdicitur to make a bad use of our law- 

bonorum suoruin administratio. ful rights, a principle recognized 

Inst. 1,8, 2. * n the interdiction of prodigals 

from the administration of their 

fortune. 

54. Ceterum cum apud 54. But as citizens of Rome 

ciues Romanes duplex sit domi- may have a double kind of domi- 

nium (nam uel in bonis uel ex nion, either bonitary or quiritary, 

iure Quiritium uel ex utroque or a union of both bonitary and 

iure cuiusque seruus esse in- quiritary dominion, a slave is in 

telleg^tur), ita demum seruum the power of an owner who has 

in potestate domini esse dice- bonitary dominion over him, even 

mus, si in bonis eius sit, etiamsi unaccompanied with quiritary 

simul ex iure Quiritium eius- dominion ; if an owner has only 

dem non sit ; narn qui nudrfm ^ are q^itary dominion he is not 

ius Quiritium in seruo habet, d to have the slave m hls 
is potestatem habere non in- 
tellegitur. 



52, 53. The condition of the slave was at its worst in the golden 
period of Roman history. As soon as Rome found her power 
irresistible she proceeded to conquer the world, and each stage of 
conquest was the reduction of a vast portion of mankind to slavery. 
30,000 Tarentines were sent as slaves to Rome by Fabius Cunctator, 
the captor of Tarentum ; 150,000 Epirots by Paulus Aemilius, the 
subjugator of Epirus. Julius Caesar retrieved his shattered fortunes 
by enormous operations in the slave market during his campaign 
in Gaul. Thus, unfortunately for the slave, the slave market was 
continually glutted and slave life was cheap. The condition of the 
slave gradually but slowly improved under the emperors. The 
killing of the slave of another was not an offence under the lex 
Cornelia de sicariis itself, but by the interpretation of later times 
it was brought under this law. A lex Petronia of uncertain date, 
but which must have been passed before the destruction of Pompeii, 
A. D. 79, being mentioned in an inscription found there, required 
a slave -owner to obtain the permission of a magistrate before 
exposing a slave to be torn to pieces by wild beasts, and only 
allowed such permission to be granted for some offence committed 
by the slave, Dig. 48, 8, 11, 2. Claudius prohibited a master 
killing his own slaves who fell sick, and enacted that the exposure 
of a slave to perish in his sickness should operate as a manumission, 
conferring Latinitas, Sueton. Claud. 25, Cod. 7, 6, 3. Hadrian is 
said to have deprived proprietors of the power of putting slaves 
to death without a judicial sentence, Spartian, Had. 18 (but see on 
this Mommsen, Strafr., p. 617, n. 2). Antoninus Pius declared a 



38 t)E PERSONIS [i. 48-54. 

master who killed his own slave to be responsible in the same way 
as if he had killed the slave of another, cf. 53, 3 213, i. e. guilty 
of murder, and subject to the penalty of the lex Cornelia de sicariis. 
We read in Justinian's Digest : Qui hominem occiderit punitur non 
habita differentia cujus conditionis hominem interemit, Dig. 48, 8, 2. 
The punishment was generally capital, Dig. 48, 8, 3, 5. It is to be 
remembered, however, that none of these laws deprive the master 
of the right of punishing his slaves himself for domestic offences. 
Hadrian prohibited the castration of a slave, consenting or not con- 
senting, under penalty of death, Dig- 48, 8, 4, 2. Antoninus Pius also 
protected slaves against cruelty and personal violation, Dig. 1, 6, 2, 
obliging the master, as we see by the text, to manumit them on 
account of his maltreatment. The Digest, 1, 6, 1, quoting 53, 
after sine causa, interpolates, legibus cognita, thus placing slaves 
under the protection of the law, and almost recognizing in slaves 
some of the primordial rights of humanity, except that, as already 
observed, obligation does not necessarily imply a correlative right. 
Koman law to the end, unlike other legislations which have recog- 
nized forms of slavery, refused to admit any rights in the slave. 
Florentinus, however, not long after the time of Gaius, admitted 
that slavery, though an institution of jus gentium, was a violation 
of the law of nature. Servitus est canstitutio juris gentium qua 
quis domino alieno contra naturam subicitur, Dig. 1, 5, 4. Ulpian 
says the same : Quod attinet ad jus civile, servi pro nullis habentur, 
non tamen et jure naturali ; quia quod ad jus naturale attinet, omnes 
homines aequales sunt, Dig. 50, 17, 32. 'Before the Civil law a 
slave is nothing, but not before the Natural law ; for in the eye of 
Natural law all men are equal.' The belief in a Natural law, more 
venerable than any Civil law, was very prevalent in the ancient 
world, and one of the principal contributions of Philosophy to 
civilization. 

The absolute privation of all rights was sometimes expressed by 
saying that a slave has no persona, caput, or status : e. g. Servos 
quasi nee personam habentes, Nov. Theod. 1 7. Servus manumissus 
capite non minuitur quia nullum caput habet, Inst. 1, 16, 4. Cum 
servus manumittitur, quia servile caput nullum jus habet, ideo nee 
minui potest, eo die enim incipit statum habere, Dig. 4, 5, 4. The 
word ' persona,' however, is sometimes applied to slaves ; e. g. in 
personam servilem nulla cadit obligatio, Dig. 50, 17, 22. So is caput 
in the last but one of the above-quoted passages. 

But though a Koman slave was incapable of being invested with 
rights for himself, yet he often filled positions of considerable 
importance both in public and private life and was allowed by his 
owner to hold a considerable peculium. It was because slaves were 



i. 55.] DE PATRIA POTESTATE 39 

ordinarily employed as procurators in commercial transactions, 
that Eoman law failed to develop the principle of contractual 
agency, as it is understood in modern systems of jurisprudence. 

DE PATEIA POTESTATE. 

55. Item inpotestatenostra 55. Again, a man has power 

sunt liberi nostri quos iustis over his own children begotten 

nuptiisprocreauimus. quodius i* civil wedlock, a right peculiar 

premium ciuium Romanorum to citizens of Borne, for there is 

estf fere enim nulli alii sunt f ff el ? any other nation where 

r ao '. . , . fll . fathers are invested with such 

homines qu* talem m nhos r over their ^^ ag afc 

suos habent potestatem qualem Qme and ^ the kte Emperor 

nos habemus ; idque dinus Hadrian dec i ared in the edict he 

Hadnanws edicto quod pro- published respecting certain peti- 

posuit de his, qui sibi liberisque tioners for a grant of Roman citi- 

suis ab eo ciuitatem Romanam ze nship to themselves and their 

petebant, significauit. nee me children ; though I am aware 

praeterit Galatarum gentem that among the Galatians parents 

credere in potestate parentum are invested with power over 

liberos esse. Inst. l } 9pr. their children. 

55. The most peculiar portion of the Roman law of status is 
that which refers to patria potestas, or the relation of paterfamilias 
to filiusfamilias. Patria potestas was founded on consuetudinary 
law (cum jus potestatis moribus sit receptum, Dig. 1, 6, 8), and 
may be considered under two heads, (1) as regarding the person 
of the son, (2) as regarding proprietary rights acquirable by 
the son. 

1. Over the person of the child the father had originally a power 
of life and death. Patribus jus vitae in liberos necisque potestas 
olim erat permissa, Cod. 8, 47, 10. So the lex Pompeia de parri- 
cidiis, enumerating the persons who could be guilty of parricide, or 
the murder of a blood relation, omits the father, Dig. 48, 9. Com- 
pare also the formula of Adrqgatio, 97-107, commentary. But in 
later times this power was withdrawn. Hadrian condemned to 
deportation a father who in the hunting-field killed his son who 
had committed adultery with his stepmother, Dig. 48, 9, 5. Con- 
stantine, A.D. 319, included killing by a father under the crime of 
parricide, Cod. 9, 17. Fathers retained the power of moderate 
chastisement, but severe punishment could only be inflicted by the 
magistrate, Cod. 8, 46, 3. Si atrocitas facti jus domesticae emen- 
dationis excedat, placet enormis delicti reos dedi judicum notioni, 
Cod. 9, 15. Trajan compelled a father to emancipate a son whom 
he treated with inhumanity, Dig. 37, 12, 5. It was originally at 



40 DE PERSONIS [i. 55. 

the option of the parent whether he would rear an infant or expose 
it to perish, but in later times such exposure was unlawful, as 
was declared by Valentinian, Valens, and Gratian, A. D. 374, Cod. 
8, 51, 2. 

Originally also parents had the power of selling (mancipandi) 
their children into bondage, thus producing a capitis minutio, or 
degradation of status. The patriarchs of the Roman race may 
perhaps have been slave-dealers who, like some savage tribes in 
Africa and elsewhere, trafficked in the bodies of their own children, 
but we must note that the bondage into which a Roman father sold 
his children was, at least at the time at which this institution is 
known to us, a limited degree of subjection : the mancipation, which 
if made three times released a son from his father's power according 
to a provision of the Twelve Tables, could only be made to another 
Roman citizen, and the bondsman continued to be liber and civis. 
And this power also was withdrawn in more civilized times. A 
law of Diocletian and Maximian, A.D. 294, declares the sale, dona- 
tion, pledging of children to be unlawful, Cod. 4, 43, 1. A rescript 
of one of the Antonines commences in the following terms, Cod. 
7, 16, 1 : 'You are guilty, by your own admission, of an unlawful 
and disgraceful act, as you state that you sold your freeborn 
children.' Justinian increased the penalties of the law against 
creditors who took possession of the freeborn child of a debtor 
as a security for a debt. He enacted that the creditor should 
forfeit the debt, should pay an equal sum to the child or parent, 
and in addition should undergo corporal punishment, Novella, 
134, 7. In the time of Gaius, the only genuine sale of a child into 
bondage was in the case of noxal surrender, i. e. when a father sued 
for the delict of a child, in lieu of damages, surrendered his delin- 
quent son or daughter as a bondsman (mancipium) to the plaintiff, 
140. The sale of the child in adoption and emancipation was 
merely fictitious ; even noxal surrender was practically obsolete 
in the time of Justinian, by whom it was formally abolished, 
Inst. 4, 8, 7. Constantine, however, A. D. 329, in cases of extreme 
poverty permitted parents to sell their children immediately after 
birth (sanguinolentos), and this constitution was retained in the 
code of Justinian, Cod. 4, 43, 2. 

2. In respect of property, filiusfamilias was capable of obligation 
but not of right ; he could be debtor but not creditor ; in any 
transaction where an independent person (sui juris) would have 
been creditor, filiusfamilias was merely a conduit-pipe through 
which a right vested in his father as creditor or proprietor. Even 
in domestic relations filiusfamilias could only figure as inferior, not 
as superior; he owed obedience, but could not exercise command 



I. 55.] DE PATRIA POTESTATE 41 

(jus, in the special sense which it has in the phrases, sui juris, alieni 
juris) ; he could only be an instrument by which his father acquired 
a right of command. Thus, filiusfamilias had commercium, and 
could take by mancipatio, but the property he thus took vested in 
his father ; he could make a valid contract, but the contractual 
right vested in his father ; he had testamentifactio, that is, he could 
be witness, libripens, familiae emptor, but he could not make a will, 
for he had no property to leave ; and if he took under a will as 
legatee or heir, the legacy or succession vested in his father: cf. 2 
87, 3 163, comm. He had the other element of civitas, con- 
nubium ; that is> he could contract a civil marriage and beget civil 
children ; but the patria potestas over these children vested not in 
the father but in the grandfather, and if the marriage was accom- 
panied with power of hand (manus), marital power over the wife, 
this vested not in the husband but in the husband's father. Any 
property which the son was allowed by his father to manage was 
called his peculium, i.e. was held on the same terms as property 
which a slave administered by permission of his proprietor. In 
respect of debts which he incurred, the son did not act as conduit- 
pipe, but (except for a loan of money, which the Sc. Macedonianum 
made irrecoverable) was liable in his own person, Dig. 44, 7, 39. 
' A son under power incurs obligation by the same titles, and may 
be sued on the same grounds of action as an independent person.' 
The same rule applied to the son as to the slave: Melior conditio 
nostra per servos fieri potest, deterior fieri non potest, Dig. 50, 17, 
133. 'The melioration of his proprietor's condition is in the power 
of a slave, but not the deterioration.' 

In his public functions, filiusfamilias was entirely beyond the 
sphere of patria potestas. Quod ad jus publicum attinet non sequitur 
jus potestatis, Dig. 36, 1, 14. Thus, a son could act as praetor or 
as judex in a suit to which his father was a party. He could 
even preside as magistrate over his own adoption or emancipation : 
Si consul vel praeses filiusfamilias sit, posse eum apud semetipsum 
vel emancipari vel in adoptionem dari constat, Dig. 1, 7, 3 (which 
makes it doubtful how far political functions were suspended 
even by the state of mancipium or bondage). He could also 
be appointed guardian (tutor), for guardianship (tutela) was held 
to be a public function, Dig. 1 , 6, 9. 'A filiusfamilias in his public 
relations is deemed independent, for instance, as magistrate or as 
guardian.' 

The above-stated incapacities of filiusfamilias were subject, how- 
ever, to certain exceptions and modifications, which may now be 
briefly considered. 

a. In certain cases filiusfamilias had an anomalous right of suing 



42 DE PERSONIS [i. 55. 

in his own name (suo nomine), i.e. not merely as procurator or 
attorney of his father, and even in opposition to his father's 
wishes, Dig. 44, 7, 9. 'A filiusfamilias can only, according to 
Julian, sue in his own name for outrage, by interdict for violent 
or clandestine disturbance, for a deposit, and for a thing he has 
lent for use.' These suits, which, in spite of the statement in 
the text, were not the only, though perhaps the oldest, actions 
maintainable by a person under power, deserve a brief explana- 
tion. Without the right to Honour, one of the primordial 
rights of humanity, a man is scarcely a freeman, and, accordingly, 
this right vests definitively in filiusfamilias, and does not again 
pass out of him to vest in his father. Any dishonouring outrage, 
therefore, gave filiusfamilias a right of bringing a civil action, 
called actio injuriarum, in his own name, though the pater- 
familias as a rule maintained the action both on his own account 
and that of his son ; if, however, he was unable to do so, or his 
character was dubious, the son could proceed by himself (cf. 3 221, 
and Dig. 47, 10, 17, 10, &c.), although any pecuniary damages that 
he thereby recovered, being in the nature of property, were recovered 
for his father. The son under power was recognized, then, as 
invested with a vindictive right, though not with a proprietary 
right. The actio injuriarum was one in bonum et aequum concepta 
(compare Dig. 47, 10, 11, 1, and Dig. 44, 7, 34 pr.), that is, the 
terms of the formula (conceptio) directed the judex to assess the 
damages not on any strict principle of law, but by his own. 
sense of natural equity (aequum et bonum), and this form may 
have helped to make the action maintainable by one who was 
generally incompetent to sue. The interdict quod vi aut clam 
was maintainable by filiusfamilias on the same principle as the 
actio injuriarum, being a means of vindicating a dishonouring 
outrage inflicted on filiusfamilias by some violent disturbance of real 
immovable property in defiance of his prohibitio or summons to 
stay operations and let the matter abide the result of a judicial trial. 
Cf. 4 138-170, comm. On the same principle a filiusfamilias 
disinherited or passed over in the will of his mother or maternal 
grandfather, as such disinheritance or pretermission was an implied 
imputation of turpitude or unworthiness and therefore dishonouring, 
might without the consent of his father (Dig. 5, 2, 22 pr.) vindicate 
his honour by impeaching the will of inofficiositas (immorality, or 
want of natural affection), although such querela inofficiosi testa- 
menti, being an action having a right to property for its object, would 
not otherwise have been maintainable by a filiusfamilias. If the 
plaintiff filiusfamilias could show that the disinheritance or omission 
was not due to his own demerits, he invalidated the will by a 



I. 55.] DE PATKIA POTESTATE 43 

fictitious presumption of the testator's lunacy and made the testator 
intestate ; and thus filiusfamilias vindicated his own character, though 
whatever share he recovered in the intestate succession vested in his 
father. Cf. 2 152-173, comm. ; Inst. 2, 18. 

The right of filiusfamilias to sue by actio commodati or depositi 
was founded on a different principle. Suppose that filiusfamilias 
had borrowed or hired a thing that he afterwards lent or deposited ; 
his father, not being responsible for his son's debts, would not be 
interested in the recovery of the thing, and therefore was not 
entitled to sue the depositary or borrower : the soil, however, would 
be answerable to the original lender or letter, and accordingly was 
allowed to sue in his own name. To avoid, however, contravening 
the civil law by affirming a proprietary right vested in a filiusfami- 
lias, he did not sue by a formula in jus concepta, i. e. of the form, si 
paret oporte,re, 'if the plaintiff establish a right,' but by a formula 
in factum, of the form, si paret factum esse, ' if the plaintiff establish 
a fact.' It is remarkable that Gaius instances precisely the actio 
commodati and the actio depositi as having two forms, one in jus 
and another in facturA (4 47) ; and we may conjecture that the 
latter was invented to be used under these very circumstances by 
filiusfamilias. 

&. The latter periods of Eoman law present a gradual emanci- 
pation of filiusfamilias by successive inventions of new kinds of 
peculium. As early as the time of Augustus filiusfamilias was 
allowed to dispose freely by will of his earnings in military service, 
castrense peculium, which came to be treated in all respects as his 
individual property, except that till the time of Justinian the rules 
of intestate succession did not apply to it. Filiifamilias in castrensi 
peculio vice patrumfamiliarum funguntur, Dig. 4, 6, 2, Subsequently 
to the time of Gaius, under Constantine and his successors, the earn- 
ings of filiifamilias in the civil service of the State, in holy orders, in 
the liberal professions, were assimilated to their earnings in the army, 
and came to be called peculium quasi castrense. Further, in the time 
of Constantine, it was also established that whatever came to the 
son from his mother or, as the law was under Justinian, from the 
maternal line, or from any source but the paternal estate (ex re 
patris), should be acquired for the father, and held by him only as a 
usufruct or life estate, while, subject to this, the son had the owner- 
ship of it (peculium adventicium). Peculium adventicium thus 
included everything acquired by the son whiph was not castrense 
peculium, nor quasi-castrense peculium, nor acquired by means of 
the father's property (ex re patris). Only this latter peculium 
derived from the paternal estate continued, under the name of 
peculium profecticium, subject to the old rules, and belonged in 



44 



DE PERSONIS 



[i. 56-64. 



absolute property to the father. Cf. 2 87, comm. ; Inst. 2, 9, 1 ; 3, 
19, 6; 4, 8, 7; 3, 10, 2, 28 pr. 

The Gallic race, of which the Galatians were a branch, are men- 
tioned by Caesar as having the institution of patria potestas: Viri 
in uxores, sicuti in liberos, vitae necisque habent potestatem, De 
Bello Gall. 6, 19. St. Paul in his Epistle to the Galatians may 
perhaps allude to the peculiarity of their law : ' The heir, as long as 
he is a child, differeth nothing from a servant (slave), though he be 
lord of all' ; 4, 1, though the Apostle seems to be directly referring 
to the cognate institution of guardianship. 



NVPTIIS. 



56. I ,1 si 

ciues Romanas uxores duxerint, 
uel etiam Latinas peregrinasue 
cum quibus conubium habeani ; 
cum enim conubium id etiiciat, 
ut liberi patris condicionem 
sequantur, euenit ut non 
(solum} ciues Romani fiant, 
sed etiam in potestate patris 
sint. Inst. 1,10 pr. 

57. Unde et ueteranis qui- 
busdam concedi solet princi- 
palibus constitutionibus conu- 
bium cum his Latinis pere- 
grinisue quas primas post 
missionem uxores duxerint ; et 
qui exeo matrimonio nascuntur, 
et ciues Romani et in potestate 
parentum fiunt. 

58. | Non tamen omnes 
nobis uxores ducere licet ; \ nam 
a quarundam nuptiis abstinere 
debemus ; Inst. 1. c. 

59. inter eas enim per- 
sonas quae parentum libero- 
rumue locum inter se optinent 
nuptiae contrahi non possunt, 
nee inter eas conubium est, 
ueluti inter patrem et filiam, 
uel inter matrem et filium, uel 
inter auum et neptem; et si 



56. A Roman citizen contracts 
civil wedlock and begets children 
subject to his power when he 
takes to wife a citizen of Rome 
or a Latin or alien with whom a 
Roman has capacity of civil wed- 
lock ; for as civil wedlock has the 
effect of giving to the children the 
paternal condition, they become 
by birth not only citizens of 
Rome, but also subject to the 
power of the father. 

57. And for this purpose vete- 
rans often obtain by imperial con- 
stitution a power of civil wedlock 
with the first Latin or alien 
woman they take to wife after 
their discharge from service, and 
the children of such marriages 
are born citizens of Rome and 
subject to paternal power. 

58. But it is not any woman 
that can be taken to wife, for 
some marriages are prohibited. 

59. Persons related as ascend- 
ent and descendent are incapable 
of lawful marriage or civil wed- 
lock, father and daughter, for in- 
stance, mother and son, grand- 
father and granddaughter ; and if 
such relations unite, their unions 
are called incestuous and ne- 
farious; and so absolute is the 



I. 56-64.] 



DE NVTTIIS 



45 



tales personae inter se coierint, 
nefarias et incestas nuptias 
contraxisse dicuntur. et haec 
adeo ita- sunt, ut quamuis per 
adoptionem parentum libero- 
rumue loco sibi esse coeperint, 
non possint inter se matrimonio 
coniungi, in tantum, ut etiam 
dissoluta adoptione idem iuris 
maneat ; itaque earn quae mihi 
per adoptionem filiae aut neptis 
loco esse coeperit non potero 
uxorem ducere, quamuis earn 
emancipauerim. Inst. 1. c. 

60. Inter eas quoque per- 
sonas quae ex transuerso gradu 
cognatione iunguntur est quae- 
dam similis obseruatio, sed non 
tanta. 

61. Sane inter fratrem et 
sororem prohibitae sunt nuptiae, 
siue eodem patre eademque ma- 
tre nati fuerint, siue alter utro 
eorum : sed si qua per adoptio- 
nem soror mihi esse coeperit, 
quamdiu quidem constat ado- 
ptio, sane inter me et earn 
nuptiae non possunt consis- 
tere ; cum uero per emancipa- 
tionem adoptio dissoluta sit, 
potero earn uxorem ducere ; 
sed et si ego emancipatus 
fuero, nihil inpedimento erit 
nuptiis. 

62. Fratris filiam uxorem 
ducere licet, idque primum in 
usum uenit, cum diuus Claudius 
Agrippinam fratris sui filiam 
uxorem duxisset; sororis uero 
filiam uxorem ducere non licet, 
et haec ita principalibus co-nsti- 
tutionibus significantur. Item 
amitam et materteram uxorem 
ducere non licet. 

Inst. 1,10,3-5. 

63. Item earn quae mihi 
quondam socrus aut nurus aut 
priuigna aut nouerca fuit. ideo 



rule that merely adoptive as- 
cendents and descendents are 
for ever prohibited from inter- 
marriage, and dissolution of the 
adoption does not dissolve the 
prohibition : so that an adoptive 
daughter or granddaughter can- 
not be taken to wife even after 
emancipation. 



60. Collateral relatives also 
are subject to similar prohibi- 
tions, but not so stringent. 



61. Brother and sister, indeed, 
are prohibited from intermarriage 
whether they are born of the same 
father and mother or have only 
one parent in common: butthough 
an adoptive sister cannot, during 
the subsistence of the adoption, 
become a man's wife, yet if the 
adoption is dissolved by her 
emancipation, or if the man is 
emancipated, there is no impedi- 
ment to their intermarriage. 



62. A man may marry his 
brother's daughter, a practice first 
introduced when Claudius married 
his brother's daughter Agrippina, 
but may not marry his sister's 
daughter, a distinction laid down 
in imperial constitutions, nor may 
he marry his father's sister or his 
mother's sister. 



63. He may not marry one 
who has been his wife's mother 
or his son's wife or his wife's 



46 



DE PERSONIS 



[i. 56-64, 



autem diximus ' quondam,' quia 
si adhuc constant eae nuptiae, 
per quas tails adfinitas quaesita 
est, alia ratione mihi nupta 
esse non potest, quia neque 
eadem duobiis nupta esse potest, 
neque idem duas uxores habere. 
Inst. 1, 10, 6. 

64. Ergo si quis nefarias 
atque incestas nuptias con- 
traxerit, neque uxorem habere 
uidetur neque liberos ; itaque 
hi qui ex eo coitu nascuntur 
matrem quidem habere uiden- 
tur, patrem uero non utique: 
nee ob id in potestate ems 
(sunt, sed tales} sunt quales 
sunt hi quos mater uulgo con- 
cepit ; nam et hi patrem habere 
non intelleguntur, cum is etmm 
incertus sit ; unde solent spurii 
filii appellari, uel a Graeca uoce 
quasi (nropabrjv concepti, uel 
quasi sine patre filii. 

Inst. 1, 10, 12. 



daughter or his father's wife. I 
say, one who has been so allied, 
because during the continuance of 
the marriage that produced the 
alliance there would be another 
impediment to the union, for a 
man cannot have two wives nor 
a woman two husbands. 

64. A man who contracts a 
nefarious and incestuous marriage 
is not deemed to have either a 
wife or children ; for the offspring 
of such a union are deemed to 
have a mother but no father, 
and therefore are not subject to 
paternal power ; resembling chil- 
dren born in promiscuous inter- 
course, who are deemed to have 
no father, because their true father 
is uncertain, and who are called 
bastards either from the Greek 
word denoting illicit intercourse 
or because they are fatherless. 



In any treatise on the law of marriage that we open we shall 
meet the expression, the marriage contract ; and this suggests the 
inquiry, is marriage a contract, and, if so, to which class of Roman 
contracts, Verbal, Literal, Real, Consensual, 3 89, is Roman 
marriage to be referred? Most writers assume that it was a Con- 
sensual contract, on the strength of texts like the following : Nuptias 
non concubitus sed consensus facit, Dig. 35, 1, 15. 'Marriage does 
not depend on cohabitation, but on consent.' Ortolan, however, 
remarks that consensual contracts could be formed by absent con- 
tractors, Inst. 3, 22, 2, whereas a marriage could not be contracted 
in the absence of the wife, Paul, 2, 19, 8 ; and shows that, besides 
the consent of the parties, delivery of possession of the wife to the 
husband was required, from which he infers that Roman marriage 
was not a Consensual but a Real contract. It is true that marriage 
might be contracted in the absence of the husband ; but this was 
only under certain conditions, Dig. 23, 22, 5. 'A man in his 
absence may marry by letter or message, provided the woman is 
led to his house : a woman in her absence cannot marry by letter 
or message, for the leading must be to the husband's house, as the 
domicile of the married pair.' And precisely the same conditions 



I. 56-64] DE NVPTIIS 47 

were sufficient in other cases to constitute delivery of possession, 
Dig. 41, 2, 18, 2. 'If a vendor deposit any article in my house by 
my order, I have possession of it though I have never touched 
it.' Consensus, then, in the above-quoted passage, is not opposed 
to delivery of possession, but to cohabitation, or to the use of 
certain words or certain documents, or to the solemn and grace- 
ful ceremonial with which custom surrounded the matrimonial 
union. 

Eeal contracts, however, are executory on one side and executed 
on the other, whereas in the conjugal relation both parties are on 
the same footing in respect of execution ; and we may ask whether 
marriage is a contract at all ; whether it does not rather fall under 
the opposite category of alienation or conveyance. Instead of finding 
its analogon in locatio-conductio or societas (consensual contracts) 
or pignus or commodatum (real contracts), may we not rather, with 
Savigny, find it in transfer of dominion or other creations of real 
right, such as adoption, the concession of patria potestas, or emanci- 
pation ? This seems the truer view, and if we use the expression, 
marriage contract, we must use the term contract not in a specific 
sense, as opposed to conveyance, but in the generic sense of 
bilateral disposition (as opposed to unilateral disposition, e.g. testa- 
tion), a sense embracing both contract proper and conveyance, and 
extending beyond the sphere of Property into the relations of 
domestic life. Contract proper and conveyance, though generally 
contrasted in jurisprudence, have much in common. If contract 
in its narrower sense is defined to be the concurrence of two 
manifestations of will creating a jus in personam, and conveyance 
the concurrence of two manifestations of will creating a jus in 
rem, the concurrence of two manifestations of will creating a jus 
is an element common to both terms of the comparison, and this 
common element may be denominated in a generic sense a con- 
tract. Contract in the narrower sense may then be distinguished 
as an obligative contract and conveyance as a translative contract, 
and the latter head will include the contract of marriage, if we 
continue to employ this expression. 

As in respect of property or dominion we find in Eoman law the 
distinction of Quiritary and Bonitary, that is, of civil and gentile, 
ownership, so in respect of the conjugal relation we find the distinc- 
tion of Roman or civil marriage (connubium, justae nuptiae, justum 
matrimonium) and gentile marriage (nuptiae, matrimonium), of 
which the former alone was valid at civil law (connubium est uxoris 
jure ducendae facultas, Ulpian, 5, 3 ; ' connubium is the capacity of 
marriage valid by civil law ') and capable of producing patria potestas 
and agnatio, though the latter produced legitimate children (justi 



48 DE PERSONIS [i. 56-64. 

as opposed to naturales liberi) and cognatio or natural relation- 
ship. 

Capacity of civil marriage (connubium) is (a) absolute and (&) 
relative. (a) Only citizens have the absolute capacity of civil 
marriage, and such Latins and aliens as are specially privileged, 
56 : slaves are incapable both of civil and gentile marriage. 
(6) Capacity of civil marriage is, however, always relative to another 
person who forms the other party to the union. A citizen only 
has connubium with a citizen or with such Latins and aliens 
as are specially privileged ; and, before the lex Papia Poppaea 
was passed, a freeborn citizen (ingenuus) had no connubium 
with a citizen by manumission (libertinus). Lege Papia cavetur 
omnibus ingenuis, praeter senatores eorumque liberos libertinam 
uxorem habere licere, Dig. 23, 2, 23. 'The lex Papia permits all 
freeborn citizens, except senators and their children, to marry freed- 
women.' 

58-63. The prohibition of marriage between collateral rela- 
tions, originally perhaps extended as far as there were legal names for 
the relationship, i. e. as far as the sixth degree, for Tacitus mentions 
that second cousins were once incapable of intermarriage, sobrinarum 
diu ignorata matrimonia, Ann. 1 2, 6 ; and Livy (20, see Hermes, 4, 372), 
in a fragment discovered by Krueger, expressly says that marriage 
was once restricted within this limit. ' P. Coelius patricius primus 
ad versus veterem morem intra septimum cognationis gradum duxit 
uxorem. Ob hoc M. Eutilius plebeius sponsam sibi praeripi novo 
exemplo nuptiarum dicens sedicionem populi concitavit adeo, ut 
patres territi in Capitolium perfugerent ' (cf. Karlowa, Rom. Rechtsg., 
p. 175) ; but though marriages within this limit may still have been 
regarded as contrary to religion (fas), the law (jus) was gradually 
relaxed. The prohibition was subsequently reduced to the fourth 
degree, i. e. to the intermarriage of first cousins (consobrini), Ulpian, 
5, 6, with this restriction, however, that if one of the collaterals was 
only removed by one degree from the common ancestor (stipes com- 
munis), he was regarded as a quasi ascendent (loco parentis) and 
incapable of intermarriage at any degree : thus, a man could not 
marry his brother's or sister's granddaughter, though only related 
in the fourth degree, Cod. 5, 4, 17. Degrees in the direct line were 
reckoned by counting the generations or births to which a person 
owed his descent from an ancestor : thus, a man is one degree from 
his father, two from his grandfather : in the transverse or collateral 
line, by adding the degrees which separate each collateral from the 
common stock; thus, a man is two degrees from his sister, three 
from his niece. 

Constantinus, A. D. 355, restored the ancient law and prohibited 



1. 65-75.] DE ERRORIS CAVSAE PROBATIONE 49 

marriage with a brother's daughter as incestuous, Cod. Theod. 
3, 12, 1. 

Affinity (affinitas) is the relationship of a person to the kin 
(cognates) of a spouse. The husband is allied to the kin of the wife, 
the wife to the kin of the husband ; but there is no alliance between 
the kin of the husband and the kin of the wife. The following are 
some of the names given to these relationships. In the ascending 
line the father and mother of the wife or husband are socer and 
socrus (father-in-law, mother-in-law), and in relation to them the 
husband of the daughter and wife of the son are gener and nurus 
(son-in-law, daughter-in-law). In the descending line the children 
of the spouse are privignus and privigna (step-son, step-daughter), 
and in relation to them the husband of the mother and the wife of 
the father are vitricus and noverca (step-father and step-mother). 
In the collateral line the husband's brother is levir (brother-in-law), 
the husband's sister is glos (sister-in-law). Intermarriage with affines 
in the direct line, or their ascendents or descendents, was absolutely 
prohibited ; collateral alliance appears to have been no impediment 
in the time of Gaius, but at a later period marriage with a deceased 
brother's wife or a deceased wife's sister was forbidden, Cod. Theod. 

2, 3, 12; Cod. 5, 5, 5. 

To the marriage of a filius- or filia-familias the consent of the 
father was required : but if he withheld it without a reason he 
could be compelled by the magistrate to give it, and, in the case of 
a daughter, to provide a dower, Dig. 23, 2, 19: one of several in- 
stances in which, as the condition of the validity of a title, when 
a voluntary action could not be obtained, the legislator substituted 
a compulsory action, instead of simply declaring the action unne- 
cessary. See 190, comm. 

DE ERKOKIS CAVSAE PROBATIONE. 

65. I Aliquando autem 65. It sometimes happens 

euenit ut liberi qui ttatim ut that children when first born are 

7ia|ti sunt parentum in pote- not in their father's power, but 

state non fiant, ii postea tamen are subsequently brought under 

redigantur in potestatem. ik 
Inst. 1,10,13. 

66. Veluti^si Latinua ex 66> Thus, under the lex Aelia 

lege Aelia Sentia uxore ducta s en ti a a Latin who marries and 

tilium procreauerit aut Latinum begets a son of Latin status by 

ex Latina aut ciuem Romanum a Latin mother, or a citizen of 

ex ciue Romana, non habebit Eome by a Eoman mother, has 

eum in potestate ; sed si postea, not power over him ; but on proof 

causa probB,i&ius{Qui'ritiurtiy of his case as required by the 



50 



DE PEESONIS 



[i. 65 -75. 



consecitfats fuerit, simul eum in 
potestate sua habere incipit. 

67. Item si ciuis Romanus 
Latinam autperegrinamuxorem 
duxerit per ignorantiam, cum 
earn ciuem Romanam esse cre- 
deret, et filium procreauerit, 
hie non est in potestate eius, 
quia ne qmdem ciuis Romanus 
est, sed aut Latinus aut pere- 
grinus, id est eius condicionis 
cuius et mater fuerit, quia non 
aliter quisque ad patris con- 
dicionem accedit, quam si inter 
patrern et matrem eius conu- 
bium sit; sed ex senatuscon- 
sulto permittitur causam erroris 
probare, et ita uxor quoque et 
films ad ciuitatem Romanam 
perueniunt, et ex eo tempore 
incipit filius in potestate patris 
esse. idem iuris est, si earn per 
ignorantiam uxorem duxerit 
quae dedi^ciorum numero est, 
nisi quod uxor non fit ciuis 
Romana. 

68. Item si ciuis Romana 
per errorem nupta sit peregrine 
tamquam ciui Romano, per- 
mittitur ei causam erroris pro- 
bare, et ita filius quoque eius 
et maritus ad ciuitatem Ro- 
manam perueniunt, et aeque 
simul incipit filius in potestate 
patris esse. idem iuris est, si 
peregrine tamquam Latino ex 
lege Aelia Sentia nupta sit ; 
nam et de hoc specialiter se- 
natusconsulto cauetur. idem 
iuris est aliquatenus, si ei qui 
deditficiorum numero est tam- 
quam ciui Romano aut Latino 
e lege Aelia Sentia nupta sit ; 
nisi quod scilicet qui dediti- 
ciorum numero est, in sua con- 
dicione permanet, et ideo filius, 
quamuis fiat ciuis Romanus, 



statute, he becomes a Roman citi- 
zen along with his son, who is 
henceforth subject to his power. 
67. Again, if a Roman citizen 
marry a Latin or an alien woman, 
in a mistaken belief that she is a 
Roman citizen, the son whom he 
begets is not in his power, not 
indeed being born a Roman citi- 
zen, but a Latin or an alien, that 
is to say, of the same status as his 
mother, for a child is not born 
into the condition of his father 
unless his parents had capacity 
of civil marriage : but a senatus- 
consult allows the father to prove 
a cause of justifiable error, and 
then the wife and son become 
Koman citizens, and the son is 
thenceforth in the power of the 
father. The same relief is given 
when a Roman citizen under a like 
misconception marries a freed- 
woman having the status of a 
surrendered foe, except that the 
wife does not become a Roman 
citizen. 



68. Again, a female Roman 
citizen who marries an alien, be- 
lieving him to be a Roman citizen, 
is permitted to prove a cause of 
justifiable error, and thereupon 
her son and husband become Ro- 
man citizens, and simultaneously 
the son becomes subject to the 
power of his father. Similar relief 
is given if she niarry an alien as 
a Latin intending^) comply with 
the conditions of the lex Aelia 
Sentia, for this case is specially 
provided forinthesenatusconsult. 
Similar relief is given to a certain 
extent if she many a freedman 
having the status of a surrendered 
foe instead of a Roman citizen, 
or instead of a Latin, whom she 
intended to marry according to 
the provision of the lex Aelia 
Sentia, except that the freedman 



i; 65-75.] DE ERRORIS CAVSAE PROBATIONE 51 



in potestatem patris non redi- 
gitur. 



69. Item si Latina pere- 
grino, cum eum Latinum esse 
crederet, (e lege Aelia Sentia} 
nupserit, potest ex senatuscon- 
sulto filio nato causam erroris 
probare, et ita omnes fiunt 
ciues Romani et films in pote- 
state patris esse incipit. 

S 70. Idem constitutum est, 

T 

si Latinus per errorem pere- 
grinam quasi Latinam aut 
ciuem Romanam e lege Aelia 
Sentia uxorem duxerit. 

71. Praeterea si ciuis 
Romanus, qui se credidisset 
Latinum esse, ob id Latinam 
(uxorem duxerit}, permittitur 
ei filio nato erroris causarn pro- 
bare, tamquam (si) e lege 
Aelia Sentia uxorem duxisset. 
Item his qui cum ciues Romani 
essent, peregrinos se esse credi- 
dissent et peregrinas uxores 
duxissent, permittitur ex se- 
natusconsulto filio nato causam 
erroris probare ; quo facto fiet | 

uxor ciuis Rom ana et films 

non solum ad cmia]tem Ro- 
manam peruenit, sed etiam in 
potestatem patris redigitur. 

72. Quaecumque de filio 
esse diximus, eadem et de filia 
dicta intellegemus. 

73. Et quantum ad erroris 
causam probandam attinet, 
nihil interest cuius aetatis filius 

sit | 1 1 , si minor 

anniculo sit filius filiaue, causa 
probari | non potest. nee me 
praeterit in aliquo rescripto 
diui Hadriani ita esse consti- 



husband continues of the same 
status, and therefore the son, 
though he becomes a Eoman citi- 
zen, does not fall under paternal 
power. 

69. Also a Latin freed woman 
married according to the provision 
of the lex Aelia Sentia to an alien 
whom she believed to be a Latin, 
is permitted by the senatuscon- 
sult, on the birth of a son, to prove 
a cause of justifiable error, and 
thereupon they all become Roman 
citizens, and the son becomes 
subject to paternal power. 

70. Exactly the same relief is 
given if a Latin freedman mis- 
takenly marry an alien woman 
believing her to be a Latin f reed- 
woman, or a Roman citizen, 
when he intended to comply with 
the lex Aelia Sentia. 

71. Further, a Roman citizen 
who marries a Latin freed woman, 
believing himself to be a Latin, is 
permitted on the birth of a son to 
prove the cause of his mistake as 
if he had married according to the 
provisions of the lex Aelia Sentia. 
So, too, a Roman citizen, who 
marries an alien, believing him- 
self to be an alien, is permitted 
by the senatusconsult on the birth 
of a son to prove the cause of the 
mistake, and then the alien wife 
becomes a Roman citizen, and the 
son becomes a Roman citizen and 
subject to the power of the father. 



72. Whatever has been said 
of a son applies to a daughter. 

73. And as to the proof of the 
cause of error, the age of the son 
or daughter is immaterial, except 
that, if the marriage was con- 
tracted with an intention to satisfy 
the requirements of the lex Aelia 
Sentia, the child must be a year 
old before the cause can be proved. 



E 2 



52 



DE PERSONIS 



[i. 65-75. 



tutum, tamquam quocZ ad er- 
roris quoque \ causam pro- 

bandam 1 1 im- 

perator dedit. 



74 (Bed) si peregrinus 
ciuem Romanam uxorem du- 
xerit, an ex senatusconsulto 
causam prepare possit, quae- 

situm est, probare \ causam 

non potest, quamuis ipse 

| hoc ei specialiter concessum 
est. sed cum peregrinus ciuem 
Romanam uxorem duxisset et 
filio nato alias ciuitatem Ro- 
manam consecutus esset, deinde 
cum quaereretur, an causam 
probare posset, rescripsit im- 
peratorAntoninusproindeposso 
eum causam probare, atque si 
peregrinus mansisset. ex quo 
colligimus etiam peregrinum 
causam probare posse. 

75. Ex his quae diximus 
apparet, siue ciuis Romanus 
peregrinam siue peregrinus 
ciuem Romanam uxorem du- 
xerit, eum qui nascitur pere- 
grinum esse. sed siquidem per 
errorem tale matrimonium con- 
tractum fuerit, emendari uitium 
eius ex senatusconsulto licet 
(secundum} ea quae superius 
diximus. si uero null us error 
interuenerit, (sedy scientes 
suam condicionem ita coierint, 
nullo casu ememfatur uitium 
euts matrimonii. 



I am aware that a rescript of the 
late Emperor Hadrian speaks as 
if it was a condition of proof of 
the cause of error that the son 
must be a year old, but this is to 
be explained by the particular 
circumstances of the case in which 
this rescript was granted. 

74. It is a question whether an 
alien, who has married a Roman 
wife, can prove cause of error 
under the S. C. But when an 
alien, believed to be a Roman 
citizen, married a Roman wife, 
and subsequently to the birth of a 
son acquired Roman citizenship, 
on the question arising whether 
he could prove the cause of error, 
a rescript of Antoninus Pius de- 
cided that he was just as com- 
petent to prove as if he had con- 
tinued an alien : from which may 
be gathered that an alien is com- 
petent to prove the cause of error. 



75, Hence it appears that a 
person born in marriage is an 
alien if his father was a Roman 
citizen and his mother an alien, 
or if his father was an alien and 
his mother a Roman citizen, 
though if the marriage was con- 
tracted under a mistake, a remedy 
is supplied by the S. C. as above 
explained. No relief is given in 
any case, where the parties did 
not contract marriage under an 
error, but were aware of their 
condition. 



Mistake or error sometimes conferred a right which a party 
could not have acquired if he had not acted under a mistake. Thus, 
the lender of money to a filiusfamilias without the father's consent 
had no legal claim to recover, unless he lent believing the borrower 
to be independent (sui juris), and possession could not mature by 
usucapion into ownership, unless it had a bona fide inception, i.e. 



I. 76-87.] DE STATV LIBERORVM 



53 



unless it commenced in an honest misunderstanding. The relief of 
error had similarly important results in questions of status. Erroris 
causam probare seems to mean 'to make good a title by error/ 
i. e. to establish, as title (causa) to relief, a probabilis error or justa 
ignorantia ; i. e. a mistake not due to negligence ; for negligence 
would exclude from relief. 

The subjection of a child to patria potestas by erroris causae 
probatio operated to invalidate a previously executed will, like the 
subsequent birth (agnatio) of a child in civil wedlock (suus postu- 
mus), 2 142. 



DE STATV LIBERORVM. 



76. Loquimur autem de 
his scilicet, {inter} quos conu- 
bium non sit ; nam alioquin 
si ciuis Romanus peregrinam 
cum qua ei conubium est uxo- 
rem duxerit, sicut supra quoque 
diximus, iustum matrimonium 
contrahiiur ; et tune ex his qui 
nascitur ciuis Romanus est et 
in potestate patris erit. 

77. Item si ciuis Romana 
peregrine, cum quo ei conu- 
bium est, nupserii, peregrinum 
sane procreatf et is iustus patris 
filius est, tamquam si ex pere- 
grina eum procreasset. hoc 
tamen tempore (ex) senatus- 
consulto, quod auctore diuo 
Hadriano factum est, etiamsi 
non fuerit conubium inter 
ciuemRomanam et peregrinum, 
qui nascitur iustus patris filius 
est. 

78. Quod autem diximus 
inter ciuem Romanam pere- 

grinurnque qui \ nascitur 

peregrinum esse, lege Minicia 

c&uetur,( ) jest, ut a 

parentis condicionem sequatur.\ 
eadem lege enim ex diuerso 
cauetur, ut si peregrinam, cum 
qua ei conubium non sit, uxo- 
rem duxerit ciuis Romanus, 



76. It is to be remembered 
that we are speaking of a marriage 
between persons who have not 
the capacity of entering into a 
civil marriage with one another. 
When, however, a Roman citizen 
takes to wife an alien privileged as 
I described ( 56), he contracts 
a civil marriage, and his son is 
born a Roman citizen and subject 
to his power. 

77. So if a female Roman 
citizen many an alien with whom 
she has capacity of civil marriage, 
her son is an alien and a lawful 
son of his father, just as if his 
mother had been an alien. At 
the present day, by a senatus- 
consult passed on the proposition 
of the late Emperor Hadrian, even 
without civil marriage the off- 
spring of a Roman woman and 
alien is a lawful son of his father. 

78. The rule we have stated 
that when a female Roman citizen 
marries an alien, the offspring is 
an alien, if there is no capacity of 
civil marriage between them, is 
enacted by the lex Minicia, which 
also provides that when a Roman 
citizen marries an alien woman, 
and there is no capacity of civil 
marriage between them, their off- 
spring shall be an alien. This 



54 



DE PERSONIS 



[r. 76-87. 



peregrinus ex eo coitu nascatur. 
sed hoc maxime casu necessaria 
lex Minicia ; nam remota ea 
lege diuersam condicionem 
sequi debebat, quia ex eis, 
inter quos non est conubium, 
qui nascitur iure gentium 
matris condicioni accedit. qua 
parte autem iubet lex ex cine 
Romano et peregrina pere- 
grinum nasci, superuacua uide- 
tur; nam et remota ea lege 
hoc utique iure gentium | fu- 
turum erat. 

79. Adeo autem hoc ita 

est, ut 1 1 

iion | solum exterae nationes et 
gentes, sed etiam qui Latini 
nominantur ; sed ad alios 
Latinos pertinet qui proprios 
populos propriasque ciuitates 
habebant et erant peregrinorum 
numero. 



80. Eadem ratioue ex con- 
trario ex Latino et ciue Romana, 
siue ex lege Aelia Sentia siue 
aliter contractum fnerit matri- 
monium, ciuis Romanus nasci- 
tur. fuerunt tamen qui puta- 
uerunt ex lege Aelia Sentia 
contracto matrimonio Latinum 
nasci, quia uidetur eo casu per 
legem Aeliam Sentiam et 
luniam conubium inter eos 
dari, et semper conubium efficit, 
ut qui nascitur patris condi- 
cioni accedat ; aliter uero con- 
tracto matrimonio eum qui 
nascitur iure gentium matris 
condicionem sequi et ob id 
esse ciuem Romanum. sed hoc 
iure utimur ex senatusconsulto, 
quo auctore diuo Hadriano 
significatur, ut quoquo modo 
ex Latino et ciue Romana 



special enactment was required in 
the first case, as otherwise the 
child would follow the condition 
of the mother ; for when there 
is no capacity of civil marriage 
between parents, their offspring 
belongs to the condition of his 
mother by jus gentium. But the 
part of this law which ordains 
that the offspring of a Roman 
citizen and an alien Woman is an 
alien seems to be superfluous, 
since* without any enactment this 
would be so under the rule of 
jus gentium. 

79. Somuchsothatitisunder 
this rule of jus gentium that the 
offspring of a Latin freedwoman 
byaRoman citizen with whom she 
has no capacity of civil marriage 
is a Latin, since the statute did 
not refer to those who are now 
designated Latins ; for the Latins 
mentioned in the statute are 
Latins in another sense, Latins 
by race and members of a foreign 
state, that is to say, aliens. 

80. By the same principle, 
conversely, the son of a Latin 
and a Roman woman is by birth 
a Roman citizen, whether their 
marriage was contracted under 
the lex Aelia Sentia or otherwise. 
Some, however, thought that if 
the marriage was contracted in 
accordance with the lex Aelia 
Sentia, the offspring is a Latin 
by birth, because on this hypo- 
thesis the lex Aelia Sentia and 
Junia confer a capacity of civil 
marriage, and a civil marriage 
always transmits to the offspring 
the status of the father: if the 
marriage was otherwise contract- 
ed, they held the offspringacquires 
by jus gentium the status of his 
mother. However, the law on 
this point is now determined by 
the senatusconsult passed on the 
proposition of the late Emperor 



r. 76-87.] DE STATV LIBERORVM 



55 



natus ciuis Romanus nasca- 
tur. 



81. His omuenienter etmm 
illud senatuseonsultum diuo 
Hadriano auctore significauit, 
ut (qui) ex Latino et pere- 
grina, item contra (qui) ex 
peregrino et Latina nascititr, 
is matris condicionem sequatur. 

82. Illud quoque his con- 
sequens est, quod ex ancilla 
et libero iure gentium seruus 
nascitur, et contra ex libera et 
seruo liber nascitur. 

83. Animaduertere tamen 
debemus, ne iuris gentium regu- 
lam ue lex aliqua uel quod 
legis uicem optinet, aliquo casu 
commutauerit. 

84. Ecce enim ex senatus- 
consulto Claudiano poterat 
ciuis Romana quae alieno seruo 
uolente domino eius coiit, ipsa 
ex pactione libera permanere, 
sed seruum procreare ; nam 
quod inter earn et dominum 
istius serui conuenerit, eo se- 
natusconsulto ratum esse iu- 
betur. sed postea diuus Ha- 
drianus iniquitate rei et inele- 
gantia iuris motus restituit 
iuris gentium regulam. ut cum 
ipsa mulier libera permaneat, 
liberum pariat. 

85. (Item e lege } 

ex aTicilla et libero poterant 
liberi nasci ; nam ' ea lege 
cauetur, ut si quis cum aliena 
ancilla quam credebat liberam 
esse coierit, siquidem mascuft 
nascantur, liberi sint, si uero 
feminae, ad euro, pertineafit 
cuius mater aTicilla fuerit. sed 
et in hac specie diuus Vespa- 
sianus inelegantia iurie motus 



Hadrian, which enacts that the 
son of a Latin and a Koman 
woman is under every hypothesis 
a Roman citizen. 

81. Consistently here with Ha- 
drian's senatusconsult provides 
that the offspring of the marriage 
of a Latin freedman with an alien 
woman or of nn alien with a 
Latin freedwoman follows the 
mother's condition. 

82. Consistently herewith the 
offspring of a female slave and a 
freeman is by jus gentium a slave, 
the offspring of a freewoman and 
a slave is free. 

83. We must observe, how- 
ever, whether the jus gentium 
in any given instance is overruled 
by a statute or ordinance having 
the authority of a statute. 

84. For instance, the Sc. Clau- 
dianum permitted to a female citi- 
zen of Rome having intercourse 
with a slave with his owner's 
consent, to continue herself in 
virtue of the agreement free, 
while she gave birth to a slave, 
her agreement to that effect with 
the owner being made valid by the 
senatusconsult. Subsequently, 
however, the late Emperor Ha- 
drian was induced by the injustice 
and anomaly of the ordinance to 
re-establish the rule of jus gen- 
tium, that as the mother continues 
free the offspring follows her 
status. 

85. By a law (the name of 
tvJiich is unknown] the offspring 
of a female slave by a freeman 
might be free, for that law pro- 
vided that the offspring of a free- 
man by another person's female 
slave whom he believed to be free 
shall be free if they are male, but 
shall belong to their mother's 
proprietor if they are female: 
but here too the late Emperor 
Vespasian was moved by the 



56 



DE PERSONIS 



[i. 76-87. 



restituit iuris gentium regulam, 
ut omni modo, etiamsi masculi 
nascantur, serui sint eius cuius 
et mater fuerit. 




86. Sed ilia pars eiusdem 
legis salua est, ut ex libera et 
seruo alieno, quern sciebat 
seruum esse, serui nascantur. 
itaque apud quos talis lex non 
est, qui nascitur iure gentium 
matris condicionem sequitur et 
ob id liber est. 

87. Quibus autem casibus 
matris et non patris condi- 
cionem sequitur qui nascitur, 
isdem casibus in potestate eum 
patris, etiamsi is ciuis Romanus 
sit, non esse plus quam mani- 
festum est. et ideo superius 
rettulimus quibusdam casibus 
per errorem non iusto contracto 
matrimonio senatuminteruenire 
et emendare uitium matrimonii, 
eoque modo plerumque efficere, 
ut in potestatem patris filius 
redigatur. 

76, &c. The rules relating to the status of the offspring of parents 
of unequal status are at first sight chaotic and bewildering, but they 
are reducible to a few canons. The most general canon is the rule 
of jus gentium, that children follow the condition of the mother. 
This is subject to two exceptions. 

1. Children born in civil wedlock follow the condition of the 
father. Cf. 88, 89, 94. 

2. Children born in gentile (lawful) wedlock of a Eoman mother 
and alien father follow the condition of the father: this was a 
special enactment of the lex Minicia. 

These rules are stated in the following passages : Lex naturae 
haec est ut qui nascitur sine legitimo matrimonio matrem sequatur 
nisi lex specialis aliud inducat, Dig. 1, 5, 24. 'By the law of 
nature children not born in civil wedlock follow the status of the 
mother, in the absence of a special statute to the contrary.' Con- 
nubio interveniente liberi semper patrem sequuntur: non inter- 
veniente connubio, matris condition! accedunt, excepto eo qui ex 



anomalous character of the rule 
to re-establish the canon of jus 
gentium, and declared that the 
offspring in every case, whether 
male or female, should be slaves 
and the property of their mother's 
owner. 

8 6. But another clause of that 
law continues in force, providing 
that the offspring of a freewoman 
by another person's slave whom 
she knows to be a slave are born 
slaves, though where this law is 
not established the offspring by 
jus gentium follow the mother's 
condition and are free. 

87. When the child follows 
the mother's condition instead of 
the father's, it is obvious that he 
is not subject to the power of 
the father, even though the father- 
is a Roman citizen : but in some 
cases, as I mentioned above (67), 
when a mistake was the occasion 
of a non-civil marriage being con- 
tracted, the senate interferes and 
purges the defect of the marriage, 
and this generally has the effect of 
subjecting the son to the power 
of the father. 



I. 88-92.] DE STATV LIBERORVM 57 

peregrine et cive Romana peregrinus nascitur, quoniam lex Minicia 
(in MS. Mensia) ex alterutro peregrine natum deterioris parentis 
conditionem sequi jubet, Ulpian, 5, 8. 'In civil wedlock the 
children have the status of the father, in the absence of civil 
wedlock of the mother ; except that the children of an alien father 
and Roman mother are aliens, as the lex Minicia makes the children 
aliens when either parent is an alien.' 

The Sc. Claudianum introduced some special enactments respect- 
ing the intercourse of freewomen with slaves, which, however, were 
subsequently abolished. 

a. If a freewoman had intercourse with a slave with the consent 
of his proprietor she retained her freedom, though degraded to the 
class of a freedwoman, but her issue was the slave of the proprietor. 
The slavery of the issue was abolished by Hadrian. 84. 

b. If a freewoman persisted in intercourse with the slave of another 
person against the will and in spite of the prohibition of the pro- 
prietor, after three denunciations on his part she was awarded to him 
by the magistrate as a slave, and her issue, whether born before or 
after the adjudication, became slaves of the same person, who also 
acquired her estate by a species of universal succession. Cf. 91, 
160. This terroristic law, which, from the minuteness with which 
the details are developed (Paulus, 2, 21), appears to have been often 
applied, was not abrogated till the time of Justinian, Inst. 3, 12, 1 . 

c. If a freeman had intercourse with a slave whom he supposed 
to be free by a law the title of which is lost, but which possibly may 
be the Sc. Claudianum, her male children were born into freedom. 
This relief of error was abolished by Vespasian as anomalous 
(inelegans), 85. 

80. There was some ground for the view that a marriage 
under the lex Aelia Sentia, because it was statutory (regulated 
by statute), was therefore a civil marriage ; and we may regard the 
senatusconsult of Hadrian, which denied its civil character, as not 
purely declaratory. 

88. Sed si ancilla ex ciue 88 if a f ema le slave conceive 

Romano concepmt, delude by a Eoman citizen and become 

manumissa cmis Romana facta herself by manumission a Roman 

sit et tune pariat, licet ciuis citizen before giving birth toa son, 

Rowawus sit qui nascitur, sicut her son, though a Roman citizen 

pater eius, non tamen in pote- like his father, is not in his father's 

state patris est, quia neque ex power, because he was not be- 

iusto coitu conceptus est ne- gotten in civil wedlock, and there 

que ex ullo senatusconsulto is no senatusconsult which cures 

tails coitus quasi iustus con- the defect of the intercourse in 

stituitur. which he was begotten. 



58 



DE PERSONIS 



[i. 88-92. 



89. Quod autem placuit, si 
ancilla ex ciue Romano con- 
ceperit, deinde manumissa 
pepererit. qui nascitur liberum 
nasci, -natural! ratione fit ; nam 
hi qui illegitime concipiuntur, 
statum suniunt ex eo tempore 
quo nascuntur ; itaque si ex 
libera nascuntur, liberi fiunt, 
nee interest ex quo mater eos 
conceperit, cum ancilla fuerit ; 
at hi qui legitime concipiuntur 
ex conceptionis tempore statum 
sumuni. 

90. Itaque si cm mulieri 
ciui Romanae praegnati aqua 
et igni interdictum fuerit, eoque 
modo peregrina i'acta tune 
pariat, conplures distinguurit et 
puta-nt, siquidem ex iustis nup- 
tiis conceperit, ciuem Romanum 
ex ea nasci, si uero uulgo con- 
ceperit, peregrinum ex ea nasci. 

91. Item si qua mulierciuis 
Romana praegnas ex senatus- 
consulto Claudiano ancilla facta 
sit ob id, quod alieno seruo 
inuito et denuntiante domino 
eius (coierif), conplures distin- 
(/itunt et existimant, siquidem 
ex iustis nuptiis concepts sit, 
ciuem Romanum ex ea nasci, 
si uero uulgo conceptus sit, 
seruum nasci eius cuius mater 
facta esset ancilla. 

92. Peregrina quoque si 
uulgo conceperit, deinde ciuis 
Romana {fiat} et tune pariat, 
ciuem Romanum parit ; si uero 
ex peregrine secundum leges 
moresque peregrinorum con- 
ceperit, ita uidetur ex sena- 
tusconsulto quod auctore 
diuo Hadriano factum est 
ciuem Romanum parere, si et 
patri eius ciuitas Romana do- 



89. The decision that when a 
female slave conceives by aEoman 
citizen and is manumitted before 
childbirth, her offspring is born 
free, is a rule of natural law ; for 
in illegitimate or non-civil con- 
ception the status of the offspring 
depends on the moment of birth, 
and the mother's freedom at the 
moment of birth makes the off- 
spring free, and the status of the 
father is immaterial; but in 
statutory or civil conception the 
status of the child is determined 
by the time of conception. 

90. Accordingly, if a female 
citizen of Eome being pregnant is 
interdicted from fire and water, 
and becoming thus an alien gives 
birth to a child, many jurists 
distinguish and hold that her 
offspring is a Roman citizen if 
begotten in civil wedlock, but if 
in promiscuous intercourse, an 
alien. 

91. So if a female citizen of 
Eome being pregnant is reduced to 
slavery under the Sc. Claudianum 
for having intercourse with a slave 
in spite of the dissent and de- 
nunciation of his owner, many 
jurists make a distinction and 
hold that her offspring, if con- 
ceived in civil wedlock is a citizen 
of Rome, if conceived in illicit 
intercourse is a slave of the person 
who becomes proprietor of the 
mother. 

92. Also if an alien woman 
conceive in illicit intercourse and 
afterwards becomes a Roman citi- 
zen and gives birth to a child, the 
child is a Roman citizen ; but if 
she conceived by an alien, to 
whom she was married in accord- 
ance with alien laws and customs, 
it seems that upon Hadrian's 
senatusconsult her offspring is 
only born a Roman citizen, if the 
father also has acquired the Roman 
citizenship. 



T. 88-92.] DE STATV LIBERORVM 59 

Supposing the status of a parent changes during the period of 
gestation (if, for instance, the mother is a slave at the time of 
conception and free at the time of birth), what effect has this on 
the status of the issue ? The following rule was adopted : in cases 
where the child follows the status of the father, that is, when it is 
begotten in civil marriage, the status of the father at the time of 
conception determines the status of the child ; where the child 
follows the status of the mothei', that is, when it is begotten in 
gentile marriage or in promiscuous intercourse, the status of the 
child is determined by the status of the mother at the moment of 
birth. Ulpian, 5, 1 0. ' Children born in civil wedlock have their 
status fixed at the time of conception ; children born out of civil 
wedlock have their status fixed at the time of delivery.' That is to 
say, the legal position of the issue is made to follow the analogy of its 
physical condition. The physical influence of the father terminates 
with conception : his subsequent health, life, or death, does not 
affect the physical state of the child ; but the child is affected by 
every change in the physical condition of the mother, her health, 
life, or death, up to the moment of birth. In imitation of this 
analogy, the status of the child, when it depended on the status of 
the father, was not affected by any change in that status subsequent 
to the period of conception ; but when it depended on the status of 
the mother it varied with every change in that status up to the 
moment of birth. By the time of Gaius, though the change is not 
mentioned in the text, this rule was modified in favour of liberty, 
and it was established that if the mother was free either at 
the date of conception or at the date of birth or at any interme- 
diate period, the issue was born free. Si libera conceperit et ancilla 
facta peperit, liberum parit, id enim favor libertatis exposcit. Si 
ancilla conceperit et medio tempore manumissa sit, rursus facta ancilla 
peperit, liberum parit, media enim tempora libertati prodesse, non 
nocere etiam possunt, Paulus, 2, 24, 2. Cf. Inst. 1, 4 pr. 

88. The issue of a mother who was a slave at the date of con- 
ception but is a citizen at the date of birth, though it is born a 
Roman citizen, is not subject to patria potestas, because it does not 
satisfy the definition in 55, liberi quos justis nuptiis procreavimus, 
'a child begotten in civil wedlock.' 

90. Aquae et ignis interdictio was originally a permission to avoid 
punishment under the penal code by voluntary exile. Subsequently 
it was employed as a punishment, and under the emperors assumed 
the form of deportatio in insulam. It was attended with confiscation 
of goods, and involved loss of ci vitas but not of libertas, 128, 161. 

92. The offspring of a wedded mother who was an alien at the 
date of conception and is a citizen at the date of birth, according 



60 



DE PERSONIS 



[i. 93-96. 



to the general rule of jus gentium, should be born a Roman citizen ; 
but this would contravene the above-mentioned lex Minicia, which 
enacted that the issue of a marriage is an alien whenever either 
parent is an alien, 78. 



93. Si peregrinus sibi 
liberisque suis ciuitatem Ro- 
man am petierit, non aliter filii 
in potestate eius Hent, quam si 
imperator eos in potestatem 
redegerit ; quod ita demum is 
facit, si causa cognita aesti- 
mauerit hoc filiis expedire. 
diligentius autem exactiusque 
causam cognoscit de inpuberi- 
bus absentibusque ; et haec ita 
edicto diui Hadriani signifi- 
ca?itur. 

94. Item si quis cum 
uxore praegnate ciuitate Ro- 
mana donatus sit, quamuis is 
qui nascitu?', ut supra diximus, 
ciuis Romanus sit, tamen in 
potestate patris non fit ; idque 
subscriptione dim Hadriani 
significatur ; qua de causa qui 
intellegit uxorem suam esse 
praegnatem, dum ciuitatem sibi 
et uxori ab imperatore petit, 
simul ab eodem petere debet, 
ut eum qui natus erit in pote- 
state sua habeat. 

95. Alia causa est eorum 
qui Latii iure cum liberis suis 
ad ciuitatem Romanam per- 
ueniunt ; nam horum in pote- 
state fiunt liberi. quod ius qui- 
busdam peregrinis ciuitatibus 
datum est uel a populo Romano 
uel a senatu uel a Caejsare. 



96. 



aut maius est 



Lati|um aut minus: maius est 
Latium, cum et hi qui decu- 
riones leguntur et ei qui hono- 
rem aliquem aut magistratum 
gerunt ciuitatem Romanam 



93. If an alien has obtained 
by petition for himself and his 
children a grant of Roman citi- 
zenship, the children do not fall 
under the power of the father 
except by express ordinance of 
the emperor, which he only makes 
if, on hearing the facts of the 
case, he deems it expedient for 
the interest of the children, and 
he makes a still more careful and 
minute inquiry if they are below 
the age of puberty and absent, as 
an edict of the Emperor Hadrian 
intimates. 

94. Also if an alien and his 
pregnant wife receive a grant of 
Roman citizenship, the child, 
though a Roman citizen, as above 
mentioned, is not born in the 
power of his father according to 
a rescript of the late Emperor 
Hadrian ; wherefore, if he knows 
his wife to be pregnant, an alien 
who petitions the emperor for 
Roman citizenship for himself 
and his wife ought at the same 
time to petition that his son may 
be subjected to his power. 

95. The rule is different for 
those who with their children are 
made Roman citizens by right 
of Latinity, for their children fall 
under their power ; this right 
has been conceded to certain alien 
states either by the Roman people, 
or by the senate or by the 
emperor. 

96. The right of Latinity is 
either greater or lesser. Greater 
Latinity is the right whereby those 
who are chosen decuriones or hold 
some high office or magistracy ac- 
quire Roman citizenship : lesser 






T. 93-96.] DE STATV LIBERORVM 61 

consecuntur ; minus Latium est, Latinity is when only those who 

cum hi tantum qui magistra- are magistrates or hold high office 

turn uel honorem gerunt ad acquire Eoman citizenship, a 

ciuitatemRomanamperueniunt: distinction intimated by several 

idqueconpluribusepistulisprin- imperial rescripts. 
cipum significatur. 

The grant of civitas was either made to communities or to 
individuals. It was a lucrative source of revenue to the emperors. 
The fees to be paid were not small, Acts of the Apostles, 22, 28, 
and the new-made civis was regarded as a manumitted slave of the 
emperor, and was expected to remember the emperor in his will. 
The philosophic emperor, Marcus Aurelius, under whom Gaius 
flourished, granted Eoman citizenship to all who were ready to 
pay the fees, data cunctis promiscue civitas Romana, Aurelius 
Victor, 16. Antoninus Caracalla, A.D. 212-217, after raising from 
one-twentieth to one-tenth the tax on manumissions and the testa- 
mentary succession and legacy duty, which was only levied on 
Roman citizens, exhausted for a time this source of revenue by 
conferring at a stroke Roman citizenship on every free subject 
of the empire : In orbe Romano qui sunt ex constitutione impera- 
toris Antonini cives Romani effecti sunt, Dig. 1, 5, 17. This was 
not a general manumission of slaves nor an abolition of the status of 
Latin or alien, but a grant of citizenship to all existing Latins 
and aliens, imposing in effect a capitation tax on the individuals, 
and leaving those orders to be again replenished by subsequent 
manumissions of Latini and dediticii. The value of the privileges 
of civis Romanus was gradually declining. The political portions 
of civitas had been extinguished by the establishment of the empire, 
and Rome was destined at last to undergo the fate she had inflicted 
on so many other cities. She was sacked by Alaric, king of the 
Goths, A. D. 410. She was entered by Genseric, king of the Vandals, 
and, after a sack of fourteen days, left a heap of ruins, A.D. 455. 
The splendour of the title of civis Romanus was sadly dimmed before 
Justinian made it acquirable by every form of manumission. 

94. Subscriptio was an imperial rescript written under the peti- 
tion to which it was an answer : a rescript written on a separate 
document was called epistola. The latter was addressed to public 
functionaries, the former to private individuals, and by its connexion 
with the petition enabled a tribunal to which it was submitted 
to investigate the truth of the allegations on which it was founded. 
Cf. 5, comm. ; and see Roby, Private Law, Intr. p. 6, n. 2. 

The grant of patria potestas by the Emperor to the new-made 
citizen, 93, may be assimilated to the legislative grant of patria 
potestas in adrogatio. Its different effects may be compared with 



62 DE PERSONIS [i. 97-107. 

the incidents of Naturalization and Denization in English law. 
Naturalization formerly only effected by act of parliament is retro- 
spective, and puts an alien in exactly the same state as if he 
had been born in the king's ligeance, and his son born before 
the naturalization may inherit : whereas the issue of a Denizen 
(an alien born who has obtained ex donatione regis letters patent 
to make him an English subject) cannot inherit to him, but his 
issue born after may. Blackstone. 

95, 96. Before the recension of the text by Studemund Gaius 
was supposed to have denned greater Latinity in this section as the 
right whereby the magistrates of certain towns acquire the Roman 
franchise along with their wives and children, and lesser Latinity 
as the right whereby the magistrates themselves acquire the Eoman 
franchise, but not their wives and children. The distinction made 
by Gaius between these two kinds of Latinity is not found in any 
other writer (cf. note to Muirhead's Gaius, h. 1.). 

The name of a senate in a municipality was ordo decurionum 
or simply ordo or curia, its members being decuriones or curiales. 
The office of decurio, which was at one time a coveted distinction, 
became very burdensome ; and in order to make it more acceptable, 
privileges were from time to time attached to it, as e.g. Latium 
majus, and in later times legitimatio per oblationem curiae (Inst. 
1, 10, 13). (Dig. 50, 2 de decurionibus.) 

It is to be noticed that the jus Latii could, according to Gaius, 95, 
be constitutionally granted in three ways, either by the people itself 
(in Comitia), or by the senate (representing the people), or by the 
Emperor (in whom the power of the people was to a great extent vested). 

DE ADOPTIONIBVS. 

97. I Non solum tamen 97. Not only natural children 

naturales liber i secundum ea are subject, as mentioned, to pa- 

quae \ diximus in potestate ternal power, but also adoptive 

nostra sunt, uerum et hi quos children, 
adoptamus. Inst. 1, 11 pr. 

98. Adoptio autem duobus 98. Adoption is of two forms, 

modis fit, aut populi auctori- adoption by authority of the 

tate, aut imperio magistratus, people and adoption by the 

ueluti praetoris. executive command of a magis- 

Inst 1111 trate, as of the praetor. 

99. Populi auctoritateadop- 99p Aut hority of the people 

tamus eos qui sm mris sunt; is require d for the adoption of 

quae species adoptioms dicitur an independent person, and this 

adrogatio, quia et is qui adoptat form is called adrogation, be- 

rogatur, id est interrogatur, an cause the adopter is interrogated 

uelit eum quern adoptaturus sit whether he wishes to have the 



I. 97-107.] 



DE ADOPTIONIBVS 



63 



iustum sibi filium esse ; et is 
qui adoptatur rogatur an id 
fieri patiatur; et populus ro- 
gatur an id fieri iubeat. im- 
perio magistratus adoptamus 
eos qui in potestate parentum 
sunt, siue primum gradum li- 
berorum optineant, qualis est 
filius et filia, siue inferiorem, 
qualis est nepos neptis, prone- 
pos proneptis. Inst. 1. c. 



100. Et quidera ilia adop- 
tio quae per populum fit nus- 
quain nisi Romae fit ; at haec 
etiam in prouinciis apud prae- 
sides earum fieri solet. 



1. Item per populum 
IP i 

/lemmae non adoptantur, nani 

jid magis placuit ; apud prae- 
korem uero uel in prouinciis 
apud proconsulem legatumue 
etiam feminae solent adoptari. 



102. Item inpuberem apud 
populum adoptari aliquando 
prohibitum est, aliquando per- 
missum est ; nunc ex epistula 
optimi imperatoris Antonini 
quam scripsit pontificibus, si 
iusta causa adoptionis esse ui- 
debitur, cum quibusdam condi- 
cionibus permissum est. apud 
praetorem uero et in prouinciis 
apud proconsulem legatumue 
cuiuscumque aetatis( personas") 
adoptare possumus. 

Inst. 1,11,3. 

103. Ill-ud utriusque adop- 
tionis commune est, quod et 
hi qui generare non possunt, 



person adopted for his lawful 
son, the person adopted is inter- 
rogated whether he thereto con- 
sents, and the people (in comitia) 
is interrogated whether such is 
its command. The executive 
command of a magistrate is the 
proceeding for the adoption of a 
person subject to the power of 
an ascendent, whether a de- 
scendent in the first degree, as 
a son or daughter, or in a re- 
moter degree, as a grandson or 
granddaughter, great-grandson or 
great-granddaughter. 

100. Adoption by vote of 
the people (in comitia) can only 
be solemnized at Borne, the 
other process is usually effected 
in the provinces in the court of 
the president. 

101. Adoption by vote of the 
people is inapplicable to females, 
as has finally been ruled ; but 
females may be adopted by the 
other mode of adoption, at Koine 
in the court of the praetor, in pro- 
vinces of the people it is usually 
effected in the court of the pro- 
consul, in provinces of the em- 
peror in the court of the legate. 

102. The legislative adoption 
of a child below the age of 
puberty by vote of the people 
was at one time prohibited, at 
another permitted ; at the present 
day, by the epistle of the Em- 
peror Antoninus addressed to the 
pontifices, on evidence of a just 
cause of adoption, it is permitted, 
subject to certain conditions. In 
the court of the praetor at Rome, 
in the court of the proconsul in 
a province of the people, and 
in the court of the legate in a 
province of the emperor, a person 
of any age may be adopted. 

103. Both forms of adoption 
agree in this point, that per- 
sons incapable of procreation by 



DE PERSONIS 



[i. 97-107. 



quales sunt spadones, adoptare 
possunt. Inst. 1, 11,9. 

104. Feminae uero nullo 
modo adoptare possunt, quia ne 
quidem naturales liberos in 
potestate habent. 

Inst. 1,11,10. 

105. Item si quis per po- 
pulum siue apud praetorem 
uel apud praesidem prouinciae 
adoptauerit, potest eundem alii 
in adoptionem dare. 

106. Sed et ilia quaestio, 
an minor natu maiorem natu 
adoptare possit, utriusque ad- 
optionis communes est. 

107. Illud proprium est 
eius adoptionis quae per popu- 
lum fit, quod is qui liberos in 
potestate habet, si se adro- 
gandum dederit, non solum ipse 
potestati adrogatoris subicitur, 
sed etiam liberi eius in eiusdem 
fiunt potestate tamquam ne- 
potes. Inst. 1,11,11. 



natural impotence are permitted 
to adopt. 

104. Women cannot adopt 
by either form of adoption, for 
even their natural children are 
not subject to their power. 

105. He who has adopted a 
person either by the vote of the 
people or by the authority of 
the praetor or of the president 
of a province, can transfer his 
adoptive son to another adoptive 
father. 

106. Whether a younger- 
person can adopt an older is a 
disputed point in both forms of 
adoption. 

107. It is peculiar to adoption 
by the vote of the people that 
children in the power of the 
person adrogated, as well as their 
father, fall under the power of the 
adrogator, assuming the position 
of grandchildren. 



Adrogation, or the adoption of an independent person (pater- 
familias), reducing him to a dependent status (filiusfamilias), was a 
legislative act of the Comitia Curiata ; but though, as representing 
the people, this assembly was legally omnipotent, it was unconstitu- 
tional to deprive a person either of the citizenship or of domestic 
independence without his own consent. We learn from Cicero 
the formula by which this assent was ascertained. De Domo, 29. 
' As it is an immemorial rule of law that no citizen of Kome shall be 
deprived of the independent position of paterfamilias or of citizenship 
against his will, as you have had occasion of learning by your own ex- 
perience, for I suppose that, illegal as your adrogation was in all points, 
you at least were asked whether you consented to become subject to 
the adrogator's power of life and death as if you were his son ; if 
you had opposed or been silent, and the thirty Curiae had neverthe- 
less passed the law, tell me, would their enactment have had any 
binding force ? ' The form in which the law was proposed to the 
legislative assembly is given by Gellius, 5, 19. 'Adrogation is 
the subjection of an independent person with his own consent to the 
power of a superior, and is not transacted in the dark or without 



I. 97-107.] DE ADOPTIONIBVS 65 

investigation. The Comitia Curiata, at which the College of Pon- 
tiffs is present, are convened, and examine whether the age of the 
adrogator does not rather qualify him for the natural procreation of 
children, and whether the estate of the adrogatus is not the object 
of fraudulent cupidity, and an oath, said to be framed by Q. Mucius, 
the high pontiff, has to be taken by the adrogator. . . . Adroga- 
tion, the name given to this transmit into a strange family, is 
derived from the interrogation of the legislative body, which is in 
the following form : ' May it please you to will and command that 
L. Valerius shall be as completely by law and statute the son of 
L. Titius as if he were born of L. Titius and his wife, and that 
L. Titius shall have power of life and death over L. Valerius as 
a father has over his son. Do you will and command as I have 
said, Quirites?' Those who voted in affirmation of the measure 
proposed said (at least in other similar assemblies) : Uti rogas ; those 
who voted against it said : Antique. Women were originally in- 
capable of being adrogated, 101, because they were incapable of 
appearing in the Comitia Curiata, Quoniam cum feminis nulla comi- 
tiorum communio est, Gellius, ibid. ; but this incapacity vanished 
as soon as the lex Curiata, as form of adrogation, was superseded by 
imperial rescript (principale rescriptum), Gaius in Dig. 1, 7, 21. 
Women, being incapable of exercising parental power, could not, 
properly speaking, adrogate, 104 ; but they were permitted, under 
Diocletian A.D. 291, by quasi adrogation to establish the same legal 
relation as existed between a mother and her natural children, Cod. 
8, 48, 5; Inst. 1, 11, 10. An adrogator was usually required to be 
sixty years old, Dig. 1, 7, 15, 2, and to be eighteen years (plena 
pubertate) older than adrogatus, Inst. 1, 11, 4. Originally a youth 
must have attained the age of puberty before he could be adrogated, 
102, and Gellius, ibid. : Sed adrogari non potest nisi jam vesticeps 
. . . quoniam tutoribus in pupillos tantam esse auctoritatem pote- 
statemque fas non est, ut caput liberum fidei suae commissum alienae 
ditioni subiciant. ' A youth cannot be adrogated before he has 
assumed the toga virilis, because a guardian has no authority or 
power to subject an independent person, with whose charge he is 
entrusted, to the domination of a stranger.' The purple-edged praetexta 
was generally laid aside by boys along with the bulla aurea which 
they wore round their neck, on the first Liberalia, the 17th March, 
Ovid, Fasti, 3, 771, after the completion of their fourteenth year. 
Females did not lay aside the praetexta till their marriage. Anto- 
ninus Pius permitted the adrogation of youths below the age of 
puberty (impubes, investis) under certain conditions ; e. g. the adro- 
gator entered into a stipulation, originally with a public slave, in 
later times with a public notary (tabularius), in the event of the 



WH1TTUCK 



66 DE PERSONIS [i. 108-115 6. 

death of adrogatus before the age of puberty, to restore his estate 
to his natural heirs, and, in the event of emancipation, to adrogatus 
himself: and adrogatus became entitled to a fourth part of the 
estate of adrogator (called quarta Antonini), of which he could not 
be deprived by disinherison or by unmerited emancipation, 102 ; 
cf. Inst. 1, 11, 3. In the time of Justinian the adrogator only 
acquired a usufruct for life in the property, subject to which the 
adrogatus was owner of it ; that is to say, the property of adrogatus 
was transformed by adrogation into peculium adventicium. Cf. 
3, 84, comm. 

The form of simple adoption is explained below, 134, under the 
head of dissolution of patria potestas, for as patria potestas is vested 
by adoption in the adoptive father, so it is divested from the natural 
father. 

The effect of adoption was much reduced by a constitution of 
Justinian. If the adoption was by an ascendent, maternal or 
paternal, it retained its old character : but if it was by a stranger 
it neither created nor extinguished patria potestas ; it did not 
transfer the adopted son from his old family into a new family, and 
therefore it neither destroyed nor created any tie of agnation : its 
only effect was to give to the adopted son, in the event of intestacy, 
a claim against the estate of the intestate adoptive father ; Cod. 8, 
47, 10 ; Inst. 1, 11, 2 and 3, 1, 14. 

DE MANY. 

108. Nunc de his per- 108. Let us next proceed to 

sonis uideamus quae in manu consider what persons are subject 

nostra sunt. quod \ et ipsum to the hand, which also relates 

ius proprium ciuium Roma- to law quite peculiar to Roman 

norum est. citizens. 

109. Sed in potestate qui- 109. Power is a right over 

dem et masculi et feminae males as well as females: hand 

esse solent ; in manum autem relates exclusively to females, 
feminae tantum cowueniunt. 

110. Olim itaque fribus no. In former days there 

modis in manum conueniebant, were three modes of becoming 

usu farreo coemptione. subject to hand, use, confarrea- 

tion, coemption. 

111 Usu in manum con- ul Uge inyested the husband 

uemebat quae anno continue with right of hand after a whole 

nuptaperseuerabat; qmaernm year of un broken cohabitation, 

ueluti annua possessions usuca- g uc h annual possession operated 

piebatur, in familiam uiri trans- a kind of usucapion, and brought 

ibat filiaeque locum optinebat. the wife into the family of the 

itaque lege XII tabularum cau- husband, where it gave her the 



I. 108-115 &.] 



DE MANY 



turn est, ut si qua nollet eo 
modo in manum raariti con- 
uenire, ea quotannis trinoctio 
abesset atque eo modo (usum) 
cuiusque anni interrumperet. 
sed hoc totuua ius partim legi- 
bus sublatum est, partim ipsa 
desuetudine oblitteratum est. 



112. Farreo in manum con- 
ueniunt per quoddam genus 
sacrificii, quod loui Farreo fit ; 
in quo farreus panis adhibetur, 
unde etiam confarreatio dicitur; 
conplura praeterea huius iuris 
ordinandi gratia cum certis et 
sollemnibus uerbispraesentibus 
decem testibus aguntur et fiunt. 
quocZ ius etiam nostris tempori- 
bus in usu est ; nam flamines 
maiores, id est Diales Martiales 
Quirinales, item reges sacro- 
rum nisi ex farreatis nati -non 
leguntur ; ac ne ipsi quidem 
sine confarreatione sacerdotium 
habere possunt. 



113. Coemptione uero in 
manum conueniunt per manci- 
pationem, id est per quandam 
imaginariam uenditionem ; nam 
adhibitis non minus quam V 
testibus ciuibus Romanis pube- 
ribus, item libripende, emit is 
mulierem, cuius in manum con- 
uenit. 

114. fotest autem coem- 
ptionem facere mulier non so- 
lum cum marito suo, sed etiam 
cum extraneo ; scilicet aut ma- 
trimonii causa facta coemptio 
dicitur aut fiduciae ; quae enim 
cum marito suo facit coem- 
ptionem, (u) apud eum filiae 



status of a daughter. Accordingly, 
the law of the Twelve Tables 
provided that a wife who wished 
to avoid subjection to the hand 
of the husband should annually 
absent herself three nights from 
his roof to bar the annual usuca- 
pion : but the whole of this law 
has been either partly abolished 
by statute, or partly obliterated 
by mere disuse. 

112. Confarreation, another 
mode in which subjection to 
hand originates, is a sacrifice 
offered to Jupiter Farreus, in 
which they use a cake of spelt, 
whence the ceremony derives its 
name, and various other acts and 
things are done and made in the 
solemnization of this disposition 
with a traditional form of words, 
in the presence of ten witnesses : 
and this law is still in use, for 
the functions of the greater 
flamens, that is, the flamens of 
Jove, of Mars, of Quirinus, and 
the duties of the ritual king, can 
only be performed by persons 
born in marriage solemnized by 
Confarreation. Nor can such per- 
sons themselves hold a priestly 
office if they are not married by 
Confarreation. 

113. In coemption the right 
of hand over a woman attaches 
to a person to whom she is con- 
veyed by a mancipation or imagi- 
nary sale : for the man purchases 
the woman who comes into his 
power in the presence of at least 
five witnesses, citizens of Kome 
above the age of puberty, besides 
a balance holder. 

114. By coemption a woman 
may convey herself either to a 
husband or to a stranger, that is to 
say there are two forms of coemp- 
tion, matrimonial and fiduciary. 
A coemption with a husband in 
order to acquire the status of 
daughter in his house is a matri- 



F a 



68 



DE PERSONIS 



[i. 108-1156. 



loco sit, dicitur matrimonii 
causa fecisse coemptionem ; 
quae uero alterius rei causa 
facit coemptionem aut cum 
uiro suo aut cum extraneo, 
ueluti tutelae euitandae causa, 
dicitur fiduciae causa fecisse 
coemptionem : 

115. quod est tale: si qua 
uelit quos habet tutores depo- 
nere et alium nancisci, illis auc- 
toribus coemptionem facit ; de- 
inde a coemptionatore reman- 
cipata ei cui ipsa uelit, et ab 
eo uindicta manumissa incipit 
eum habere tuforem, (a) quo 
manumissa est ; qui tutor fidu- 
ciarius dicitur, sicut inferius 
appare6it. 



monial coemption: a coemption 
for another purpose, whether with 
a husband or with a stranger, for 
instance, for avoiding a guardian- 
ship, is a fiduciary coemption. 



1 1 5. This is accomplished by 
the following process : the woman 
who desires to set aside her 
present guardians and substitute 
another makes a coemption of 
herself to some one with their 
sanction : thereupon the party to 
this coemption remancipates her 
to the person intended to be sub- 
stituted as guardian, and this 
person manumits her by the form 
of vindicta, and in virtue of this 
manumission becomes her guar- 
dian, being called a fiduciary 
guardian, as will hereafter be 
explained. 

1 1 5 a. In former times testa- 
mentary capacity was acquired by 
fiduciary coemption, for no woman 
was competent to dispose of her 
property by will, with the excep- 
tion of certain persons, unless she 
had made a coemption, and had 
beenremancipated andthenmanu- 
mitted: but this necessity of co- 
emption was abolished by a sena- 
tusconsult made on the motion of 
Hadrian, of divine memory. 

1 15 &. Even if a woman makes 
only a fiduciary coemption with 
her husband, she acquires the 
status of his daughter, for it is 
held that from whatever cause 
a woman is in the hand of her 
husband, she acquires the position 
of his daughter. 

In early Eoman law a woman on marriage necessarily passed out 
of her own agnatic family into that of her husband, taking the place 
of a filiafamilias in it. If her husband was paterfamilias, she 
came into his hand, if he was filiusfamilias into that of his father. 
This power (manus) was the same in its nature as patria potestas. 



115 a. Olim etiam testa- 
menti faciendi gratia fiduciarm 
fiebat coemptio ; tune enim non 
aliter feminae testamenti fa- 
ciendi ius habebant, exceptis 
quibusdam personis, quam si 
coemptionem fecissent remanci- 
pataeque et manumissae fuis- 
sent : sed hanc necessitatem 
coemptionis faciendae ex aucto- 
ritate diui Ha|driani senatus 
remisit. 

1 15 b. 1 femina > 

fi|duciae causa cum mro suo 
fecerit coemptionem, nihilo mi- 
nus filiae loco incipit esse ; nam 
si omnino qualibet ex causa 
uxor in manu uiri sit, 
earn filiae iura nancisci. 



i. 108-115 6.] DE MANY 69 

By manus the husband, or the husband's father, had power of life and 
death over the wife, Livy, 39, 18 ; Tac. Ann. 1 3, 32 ; and all the property 
of the wife, even more absolutely than by the common law of English 
jurisprudence, vested in the husband or his paterfamilias, 2 98. 

The patriarchs of the Koman nation could probably not conceive 
of the conjugal union as disjoined from manus. Yet at a very early 
period of Roman history these were recognized as separable, and in 
later times they were almost universally dissociated, and wedlock 
was unaccompanied by manus. In a marriage celebrated without 
confarreation and without coemption before the expiration of the 
first year of cohabitation, there was civil wedlock without manus, and 
the Twelve Tables provided a method (trinoctio abesse) by which this 
state could be indefinitely prolonged, 111: and as soon as gentile 
marriages were recognized by the law the Romans were still more 
familiarized with the spectacle of lawful matrimony without manus. 
As the ages advanced the wife acquired more and more indepen- 
dence ; manus was almost obsolete in the time of Gaius, and it has 
quite vanished from the legislation of Justinian. (For a detailed 
account of the law of marriage see Sohm, pp. 470-498.) 

Confarreation was a form of marriage which made the issue 
eligible for certain high sacerdotal functions, and may therefore be 
regarded as characteristic of the patrician caste. Originally it prob- 
ably produced marital power in its full extent ; but when Augustus, 
B. c. 10, after a vacancy of seventy-five years, renewed the priesthood 
of Jove (flaminium diale) he limited by statute the legal effect of 
confarreation in that particular instance, 136; and Tiberius, A.D. 23, 
extended the limitation to all future cases of confarreation, Tac. 
Ann. 4, 1 6. Henceforth it only operated a change of family in respect 
of sacred rites (sacra): the woman ceased to have the domestic gods 
and domestic worship of her father, and took in exchange the 
domestic gods and domestic worship of her husband. But in 
secular matters her family was unchanged : she remained, if filia- 
familias, subject to patria potestas, and did not become quasi filia- 
familias in the household of her husband : her old ties of agnation 
in her father's family were not snapped, and no new ties of agna- 
tion in her husband's family were acquired. Divorce (diffarreatio, 
Festus, s.v.) was almost impossible, and this indissol ability of the 
connexion contributed to the unpopularity of confarreatio. More- 
over, it was a religious ceremonial, requiring the presence of the 
pontifex maximus and flamen dialis, and as such it vanished with 
vanishing paganism. The ten witnesses apparently represented the 
ten curiae of which the tribe was composed, or the ten gentes of 
which the curia was composed, or, if the decimal division continued 
further, the ten families of which the gens was composed. 



70 DE PERSONIS [i. 108-115 b. 

The purchase of the wife by the husband, a widespread custom in a 
primitive state of society, was no doubt one of the ways in which Koman 
marriage originated. The exact nature of Coemption, in consequence 
of the defective state of the Veronese manuscript, must, however, 
remain a mystery. Coemption was a form of mancipation, 113, but 
in virtue of the provision of the Twelve Tables, Cum nexum faciet 
mancipiumque, uti lingua nuncupassit, ita jus esto, the nature of every 
mancipation depended on the mancipii lex, the accompanying nuncu- 
pation or verbal declaration of its condition, intentions, purposes ; as 
in English conveyancing the nature of a grant is limited and deter- 
mined by the habendum and tenendum of the deed. We are informed 
that in coemption, the formula was not the same as in other mancipa- 
tions, 123, but we are not informed what it was. Even in Cicero's 
time many advocates were ignorant of the legal effect of a coemption 
because they were ignorant of the precise terms of the formula in 
which it was concluded, De Orat. 1, 56. The word itself may suggest 
a conjecture that it was a conveyance of the husband to the wife as 
well as of the wife to the husband ; and this is supported by Servius 
on Georgics, 1, 34, and Isidorus, 5, 24, no great authorities, but who 
quoted apparently from Ulpian : ' An ancient nuptial form wherein 
husband and wife made a mutual purchase, to bar the inference 
that the wife became a slave.' Plutarch informs us that the wife 
asserted her equality by the terms, Ubi tu Caius, ego Caia, Quaest. 
Eom. 28: 'Where thou art master, I am mistress.' Boethius on 
Cicero, Topica, 3, 1 4, quoting from Ulpian, says : ' The man and 
woman interrogated one another. He asked her if she wished to 
be mother of his household ; she answered, Yes. She asked him 
if he wished to be father of her household ; he answered, Yes. 
And thus the woman passed into the hand of the man, and was 
called the mother of his household, with the status of filiafamilias.' 
According to Cicero, the wife was only called materfamilias when 
subject to hand : Genus est uxor ; ejus duae formae ; una matrum- 
familias, eae sunt, quae in manum convenerunt, altera earum quae 
tantummodo uxores habentur, Top. 3, 14. Gellius says the same, 
18, 6, 7 : Tradiderunt matremfamilias appellatam esse earn solam 
quae in mariti manu mancipioque aut in ejus, in cujus maritus manu 
mancipioque esset. Boethius (in Cic. Top. 3, 14) further limits the 
title to a wife who has become subject to manus by coemption : 
Quae autem in manum per coemptionem convenerant, hae matres- 
familias vocabantur, quae vero usu et farreatione, minime, ibid. 
However this may have been, in one sense the name was a mis- 
nomer, for a wife subject to hand was not sui juris (materfamilias), 
but alieni juris (filiafamilias) : and that materfamilias denoted a 
woman sui juris, whether married or unmarried, as opposed to 



i. 108-115 6.] DE MANY 71 

a filiafamilias or woman alieni juris, appears from Ulpian (4, 1) : Sui 
juris sunt familiarum suarum principes, id est paterfamiliae itemque 
materfamiliae. (See Muirhead's Eoman Law, App. B.) 

If the wife was subject to the power of her father, she required 
his sanction before she could make a coemption with her husband. If 
the wife was independent of parental control, she required the 
sanction of her guardians, who under the old law would have been 
her nearest agnates. 

Coemption was sometimes employed for other purposes than 
matrimony, and was then called fiduciary coemption. Sometimes 
the intention was to extinguish the obligation of onerous sacred 
rites attached to the estate of an heiress : Jure consultorum ingenio 
senes ad coemptiones faciendas interimendorum sacrorum causa re- 
perti sunt, Cic. Pro Murena, 12, 27. 'Juristic ingenuity invented 
coemptions with aged men for extinguishing sacred rites.' Savigny 
(Verm. Schr. 1, 190) gives the following conjectural explanation of 
the process. The obligation to the sacra belonged to the Quiritary 
ownership of the universitas of the woman's estate. This, by the 
effect of coemption, vested in the coemptionator, an old man ap- 
proaching dissolution (senex coemptionalis), with whom a fictitious 
marriage was contracted, and who took the estate as universal 
successor. He forthwith dismissed the woman from his manus by 
remancipation and manumission : and then, according to covenant, 
restored to her the estate in portions ; that is, released from the 
ritual obligations, which only attached to the universitas. On his 
death, as Quiritary owner of the empty universitas, the obligation 
to the rites was extinguished : for the succession (hereditas) to the 
coemptionator did not pass to the woman, as she by remancipation 
had ceased to be [such was the hypothesis of Savigny before the 
discovery of Gaius: instructed by Gaius we must rather say, as 
mere fiduciary coemption had not the effect of making her] his 
filiafamilias and sua heres. The phrase senex coemptionalis denotes 
a slave. From which it may be inferred that a slave, useless for 
any other purpose, and therefore very cheap, was sometimes bought 
and manumitted to serve as coemptionator. In such a case the 
whole transaction would be very inexpensive, if not very decorous. 
This mode of getting rid of sacred rites is compared by Ihering, 
58, with the institution of a slave as heir to bear the infamy 
of bankruptcy instead of the deceased testator, 2 154. Universal 
succession was an institution which Koman law only admitted in 
certain cases, 2 98, including the cases of Manus and Adrogatio. 
If universal succession was required for the purpose of extinguishing 
the obligation to sacred rites attaching to the estate of an heiress, we 
might have supposed that Adrogatio would have been a less offensive 



72 DE PERSONIS [i. 108-115 6. 

mockery than a fictitious marriage (fiduciary coemption) ; adrogatio, 
however, was inapplicable, because, as we have seen, up to a late 
period of Roman law women were incapable of being adrogated. 
Moreover, the Pontifices, who had a veto on adrogations, were not 
likely to lend themselves readily to the extinction of sacred rites. 
(Comments of other modern writers on this subject are noticed in 
Roby's Roman Private Law, 1, 71, n. 1.) 

At other times Coemption was employed to enable a woman to 
select a guardian, 115, 195 a. Cic. Pro Murena, 12 27. 'There 
are many wise legal provisions that juristic ingenuity has defeated 
and perverted. All women on account of their weakness of judge- 
ment were placed by our ancestors under a guardian's control : 
jurists invented a kind of guardian subject to female dictation.' 
(Cf. Sohm, 103, n. 2.) 

The latest employment of Coemption enabled a woman to break 
the ties of agnation and thus acquire testamentary capacity, 1 1 5 a ; 
Cic. Top. 4, 1 8. The coemptionator (party to the coemption) in virtue 
of the manus thereby acquired was able, and by a fiducia or trust was 
bound, to sell the woman into bondage as if she were filiafamilias : 
accordingly he remancipated her to a third person, who by manumit- 
ting her in accordance with another fiducia became her patron, and as 
patron, in accordance with the Twelve Tables, 165, 166, her statu- 
tory guardian (tutor legitimus), and, as having acted under a fiducia, 
her fiduciary guardian, 1 1 5. It may occur to us that as coemptio 
required the sanction of a father or guardian, this process could not 
be of much use in getting rid of a guardian or defeating the claims 
of agnatic guardians to a woman's intestate succession ; but it must 
be remembered that the nearest agnate, who alone was heir and 
guardian, was a variable person, and that a given nearest agnate 
might be not indisposed to allow a woman to acquire the free dis- 
position of her property and to defeat the claims of those who, after 
his death, would be nearest agnates and presumptive heirs. At all 
events, however indisposed the guardian might be to such a course, 
a period at last arrived when the auctoritas of the guardian, though 
still required as a formality, could be extorted, if not yielded volun- 
tarily, by appeal to the magistrate, 190. 

Agnatic guardianship of female wards was abolished by a lex 
Claudia, 171, and thus the woman would be free from the control 
of an interested guardian in the disposition of her property during 
her lifetime. She would still however have had little more than 
a life interest until she acquired the power of testation. For when 
wills could be only executed in the comitia, 2 101, she would be 
excluded from testation, as well as from adrogation, by exclusion from 
the comitia : and after the introduction of the mancipatory will she 



I. 108-115 6.] DE MANY 73 

was still barred by her agnates' indefeasible claims to her reversion. 
Agnation itself, however, was defeasible by means of coemptio and 
remancipatio and the consequent capitis minutio ; and when the 
auctoritas of the guardian for these proceedings could be extorted, 1 90, 
the woman had practically acquired power of testation, although its 
exercise was hampered by a tedious formality, which was not abolished 
by the emperor Claudius when he abolished agnatic guardianship. 
It was not till the senatusconsult of Hadrian that the rupture of 
the ties of agnation by means of coemptio ceased to be necessary to 
the validity of a woman's will, 115a;2112, 118; though it had 
probably been previously a mere formality (the woman having power 
to extort at pleasure the auctoritas of the agnatic guardian) even before 
the time of Claudius. As we learn from the text coemption had not 
been required previously in the case of certain privileged women. 
Cf. 145, 194 ; 3 44 ; Ulp. 29, 3. 

114. Fiducia was a declaration of the trusts of a mancipation, 
by which the party to whom the mancipation was made undertook 
to remancipate under certain conditions. Besides its use in co- 
emption, it was employed, as we shall see presently, in emancipation 
and adoption, and was the earliest form of constituting the contracts 
of deposit and mortgage, 2 59, 60 ; 3 90, 91, comm. 

The pactum fiduciae, or agreement by which the conditions or trusts 
were defined, must not be identified with nuncupatio. Nuncupatio 
forms an integral part of Mancipatio, and what was declared in it 
would constitute a title under the law of the Twelve Tables. Pactum 
fiduciae, on the other hand, never coalesces with Mancipatio, but 
remains a separate adjunct, originally only morally binding on the 
transferee, but afterwards forming an obligation of jus gentium, and 
affording ground to support a bonae fidei actio. Herein Mancipatio is 
contrasted with Tradition and the dispositions of natural law. Con- 
ventions accompanying Tradition unite with it, and form a single con- 
solidated disposition ; and the pacts annexed (pacta adjecta) to any 
contract of natural law (venditio, conductio, mandatum, &c.) become 
integral parts thereof, and are enforced by the action brought on the 
principal contract. Stipulatio, as a civil disposition, seems to have 
originally resembled Mancipation in this respect : at least it was a 
late period of the law when the rule was clearly established that : 
Pacta incontinent! facta stipulation! inesse creduntur, Dig. 12, 1, 40, 
i. e. Pacts made contemporaneously with a stipulation are deemed to 
be portions of the stipulation. Savigny, 268. It is true that 
a Pactum adjectum respecting interest and annexed to the gentile 
disposition Mutuum could not be enforced by an action brought upon 
the Mutuum: but that was a consequence of the nature of the 
action (condictio certi) whereby Mutuum was enforced, and which 



74 



DE PERSONIS 



[i. 116-123. 



could not embrace any sum beyond the original subject of the 
Mutuum ; 3 90, 91, comm. 



DE MANCIPIO. 



116. Superest ut expona- 
mus quae personae in manciple 
sint. 

117. Omnes igitur libero- 
rum personae siue masculini 
siue femimni sexus quae in 
potestate parentis sunt manci- 
pari ab hoc eodem modo pos- 
sunt, quo etiam serui manci- 
pari possunt. 

1 18. Idem iuris est in earum 
personis quae in manu sunt ; | 
coemptionatoribus eo- 



dem modo possunt 



-apud 



coemptionatorem fi|liae loco sit 

nupta sit, nihilo 

minus etiam quae ei nupta 
non sit nee ob id filiae loco sit, 
ab eo mancipari possit. 



118 a. Plerumque (uero 
turn) solum et a parentibus et 
a coemptionatoribus mancipan- 
tur, cum uelint parentes coem- 
ptionatoresque (ex} suo iure 
eas personas dimittere, sicut 
inferius euidentius apparebit. 

119. Est autem manci- 
patio, ut supra quoque diximus, 
imaoinaria quaedam uenditio ; 
quod et ipsum ius proprium 
ciuium Romanorum est, eaque 
res ita agitur: adhibitis non 
minus quam quinque testibus 
ciuibus Romanis puberibus et 
praeterea alio eiusdem condi- 
cionis, qui libram aeneam te- 
neat, qui appellatur libripens, 
is qui mancipio accipit, aes 



116. It remains to examine 
what persons are held in man- 
cipation. 

1 17. All children, male or fe- 
male, in the power of their father 
are liable to be mancipated by 
their father just as his slaves may 
be mancipated. 



118. A woman in the hand is 
subject to the same mode of aliena- 
tion, and may be mancipated by 
the person who has acquired her 
by coemption just as a daughter 
may be mancipated by her father : 
and although the acquirer of her 
by coemption otherwise than for 
the purpose of marriage has not 
the power of a father over her, 
nevertheless, though he is not her 
husband, and therefore has not 
the status of a father, he can dis- 
pose of her by mancipation. 

1 1 8 a. Almost the sole occa- 
sion of mancipation by a parent 
or by the acquirer of a woman by 
coemption is when the parent or 
acquirer by coemption designs to 
liberate the person mancipated 
from his lawful control, as will 
presently be more fully explained. 

119. Mancipation, as before 
stated, is an imaginary sale, belong- 
ing to that part of the law which 
is peculiar to Eoman citizens, and 
consists in the following process : 
in the presence of not fewer than 
five witnesses, citizens of Eome 
above the age of puberty, and an- 
other person of the same condition, 
who holds a bronze balance in his 
hands and is called the balance 
holder, thealieneeholdingabronze 
ingot in his hand, pronounces the 



J. 116-123.] 



DE MANCIPIO 



75 



tenens ita dicit : HVNC EGO HO- 

MINEM EX IVBE QVIBITIVM MEVM 
ESSE AIO ISQVE MIHI EMPTVS E- 
STO HOC AEKE AENEAQVE LIBRA ; 

deinde aere percutit libram id- 
que aes dat ei a quo manciple 
accipit quasi pretii loco. 

120. Eo modo et seruiles 
et liberae personae mancipan- 
tur ; animalia quoque quae 
mancipi sunt, quo in numero 
habentur boues, equi, muH, 
asini ; item praedia tarn urbana 
quam rustica quae et ipsa man- 
cipi sunt, qualia sunt Italica, 
eodem modo solent mancipari. 

121. In eo solo praediorum 
mancipatio a ceterorum manci- 
patione differt, quod personae 
seruiles et liberae, item anima- 
lia quae mancipi sunt, nisi in 
praesentia sint, mancipari non 
possunt; adeo quidem, ut eum 
(quiy mancipio accipit, adpre- 
hendere id ipsum quod ei man- 
cipio datur necesse sit; unde 
etiam mancipatio dicititr, quia 
manu res capitur ; praedia uero 
absentia solent mancipari. 

122. Ideo autem aes et li- 
bra adhibetur, quia olim aereis 
tan turn nummis utebantur, et 
erant asses, dupundii, semisses, 
quadrantes, nee ullus aureus 
uel argenteus nummus in usu 
erat, sicut ex lege xil tabula- 
rum intellegere possumus; eo- 
ruinque nummorum uis et po- 
testas non | in numero erat sed 

in pondere as|ses librales 

erant, et dupundii 1 ; unde 

etiam dupundius dictus est 
quasi duo pondo, quod nomen 
adhuc in usu retinetitr. semis- 
ses quoquQ et quadrantes pro 



following words: THIS MAN I 

CLAIM AS BELONGING TO ME BY 
BIGHT QUIRITARY AND BE HE (or, 
HE IS) PURCHASED TO ME BY THIS 
INGOT AND THIS SCALE OF BRONZE. 

He then strikes the scale with the 
ingot, which he delivers to the 
mancipator as by way of purchase 
money. 

120. By this formality both 
slaves and free persons may be 
mancipated, and also such animals 
as are mancipable, namely, oxen, 
horses, mules, and asses : im- 
movables also, urban and rustic, 
if mancipable, such as Italic lands 
and houses, are aliened by the 
same process. 

121. The only point wherein 
the mancipation of land and build- 
ings differs from the mancipation 
of other things is this, that manci- 
pable persons, whether slaves or 
free, and animals that are manci- 
pable, must be present to be manci- 
pated : it being necessary that the 
alienee should grasp the object to 
be mancipated with his hand, and 
from this manual prehension the 
name of mancipation is derived ; 
whereas land and buildings may 
be mancipated at a distance from 
them. 

122. The reason of using a 
bronze ingot and a weighing scale 
is the fact that bronze was the 
onlymetal used in the ancient cur- 
rency, which consisted of pieces 
called the as, the double as, the 
half as, the quarter as, and that 
gold and silver were not used as 
media of exchange, as appears by 
the law of the Twelve Tables : 
and the value of the pieces was 
not measured by number but by 
weight. Thus the as was a pound 
of bronze, the double as two 
pounds, whence its name (du- 
pondius), which still survives ;* 
while the half as and quarter as 



76 



DE PERSONIS 



[i. 116-123. 



rata scilicet portione ad pon|- 

dus examinati erant. qui 

daba olim \ pecuniara, non nu- 
merabat earn, sed appendebat ; 
unde serui quibus permittitur 
administratio pe|cuniae dispen- 

satores appellati sunt et 1 

123. coemptioj 

a quidem quae coemlptionem 

fac seruilem condici|onem 

a 1 mancipad mancipataeue 

seruorum loco con|stituuntur, 
adeo quidem, ut ab eo cuius in 
mancipio sunt neque heredi- 
tatem neque legata aliter capere 
possint, quam (si) simul eodera 
testamento liberi esse iubean- 
tur sicut iuris est in persona 
seruorum. sed differentiae ratio 
manifesto est, cum a parentibus 
et a coemptionatoribus isdem 
uerbis mancipio accipiantur 
quibus serui; quod non similiter 
jit in coemptione. 



were masses denned by weighing 
those respective fractions of a 
pound. Accordingly, money pay- 
ments were not made by tale, but 
by weight, whence slaves entrust- 
ed with the administration of 
money have been called cashiers. 

123. If it is asked in what 
respect coemptive conveyance dif- 
fers from mancipation, the answer 
is this, that coemption does not 
reduce to a servile condition, 
whereas mancipation reduces to 
so completely a servile condition 
that a person held in mancipation 
cannot take as heir or legatee 
under the will of the person to 
whom he is mancipated, unless 
he is enfranchised by such will, 
thus labouring under the same 
incapacity as a slave : the reason 
too of the difference is plain, 
as the form of words employed 
in mancipation by a parent or pre- 
vious acquirer by coemption is 
identical with that used in the 
mancipation of slaves, but it is 
not so in coemptive conveyance. 



In what respects did domestic bondage (mancipium or mancipii 
causa) differ from slavery (servitus) ? Bondage was an institute of 
jus civile, slavery an institute of jus gentium, 52. Bondage 
was the result of mancipation by a parent or coemptionator, and 
only a Koman citizen was capable of becoming a bondsman. The 
proprietor has possession of the slave, the lord has no possession 
of the bondsman, 2 90. The bondsman was civis Komanus, 
though what became of his political capacities during his bondage 
is uncertain ; and he was liber, though alieni juris ; he was free in 
respect of the rest of the world, he was only a bondsman in respect 
of the person in whose mancipium he was. Thus the status of man- 
cipium was relative ; a man could only be in mancipio in relation 
to a given domestic lord : whereas the status of slavery was absolute ; 
a man might be a slave without an owner (servus sine domino) : 
for instance, a person condemned for a capital crime, who was 
called the slave of punishment (servus poenae, Inst. 1, 12, 3), or 
a slave abandoned (derelictus) by his owner. Accordingly, falling 
into servitus was maxima capitis diminutio, while falling into man- 



i. 116-123.] DE MANCIPIO 77 

cipii causa was minima capitis diminutio, 162. The bondsman 
had no proprietary rights against his superior, 2 86, but he had 
some of the primordial rights ; for instance, he could sue his 
superior for outrage, 141 ; and he was capable of civil wedlock and 
could beget Roman citizens, though during his bondage his patria 
potestas was in abeyance, 135. Release from bondage, as from 
slavery, was by manumission, 138, and the manumitter became the 
patron of the released person, 166, 195 a, but the manumitted 
bondsman became ingenuus, whereas the manumitted slave became 
libertinus. Bondage did not exist in the time of Justinian. 

119. The libripens must not be dumb, Ulpian, 20, 7: probably 
because he had to utter the formula preserved by Festus, Raudusculo 
libram ferito, i. e. to invite the emptor to strike the scale with the 
ingot, in order to show by the ring that the metal was genuine. 
Ihering, 46, n. 708. 

120. Praedia Italica. Under the first emperors the body of the 
Roman world consisted of three members, the imperial city, Rome, 
Italy, and the provinces, the two former being highly privileged in 
comparison with the third. After the Social War, 91-88 B.C., all 
Italy had acquired Roman citizenship, but Italic soil was not a 
purely local appellation, as jus Italicum was conceded to many 
provincial cities. Jus Italicum, or Italian privileges, implied (i) a 
free municipal constitution with elective magistrates (generally 
called duumviri juri dicundo) possessed of independent jurisdiction ; 
and, what was still more important, (2) immunity from direct 
taxation, whether in the form of capitation tax (tributum capitis), 
imposed on all who were not holders of land (tributarii), or in the 
form of land tax (tributum agri), imposed on holders of land (pos- 
sessores), and paid in provinces of the people to the aerarium under 
the name of stipendium, in provinces of the emperor to the fiscus 
under the name of tributum, 2 21. Italic soil was (3) subject to 
Quiritary ownership (dominium ex jure Quiritium) and acquirable 
and transferable by usucapion and mancipation. Under the later 
emperors, as early as the time of Diocletian, the Roman world was 
equalized, not by the elevation of the depressed members, but by 
depression of those formerly favoured: Italy was shorn of her 
privileges, and all the empire became provincial. 

122. Chemical analysis shows that the aes of which Roman 
coins consisted was bronze, a mixture of copper (cuprum), tin, and 
lead. [English bronze is an alloy composed of ninety-five parts of 
copper, four parts of tin, and one part of zinc.] Brass, a mixture 
of copper and calamine (cadmeia) or zinc, was called orichalcum. 
Silver currency was first introduced B.C. 269. The primitive system 
of currency was everywhere currency by weight, and every system 



78 



DE PERSONIS 



[i. 124-131. 



of coinage was originally identical with a system of weights, the 
unit of value being the unit of weight of some selected metal 
(Jevons, Money, ch. 9). The pieces of which a currency by weight 
consists are not properly coins, for coins are ingots of which the 
weight and fineness are certified by the integrity of the designs 
impressed upon the surfaces of the metal (ibid. ch. 7). Money 
is legal tender (Mill, Pol. Econ. 12, 7). Legal tender is that 
which must be tendered by the debtor and accepted by the creditor 
in discharge of a debt ; e. g. in England silver coin is a legal 
tender only to the amount of forty shillings in any one payment, 
bronze coins are a legal tender only to the aggregate amount of 
one shilling. Bank of England notes are a legal tender everywhere 
in England but at the bank, i. e. are there convertible into gold. 

123. As coemptio was a form of mancipatio, how does it happen 
that manus, the result of coemptio, differs from mancipium, the 
result of mancipatio ? Because, Gaius answers, the formula of 
words used in the mancipatio that entered into coemptio was speci- 
fically different from the formula employed on other occasions of 
mancipation. 



QVIBUS MODIS IVS POTESTATIS SOLVATVR. 



124. Videamus nunc quo- 
modo hi qui alieno iuri subiecti 
sunt eo iure liberentur. 

Inst. l,12pr. 

125. Ac prius de his dispi- 
ciarnus qui in potestate sunt. 

126. Et quidem serui quem- 
admodum potestate liberen- 
tur, ex his inteUegere possuinus 
quae de seruis manumittendis 
superius exposuimus. 

Inst. 1. c. 

127. Hi uero qui in pote- 
state >arentis sunt, mortuo eo 
sui iurisfiunt. sed hoc disiin- 
ctionem recipit ; nam mortuo 
patre sane omni modo filii filiae- 
ue sui iuris efficiuntur ; mor- 
tuo uero auo non omni modo 
nepotes neptesue sui iuris fiunt, 
sed ita, si post mortem aui in 
patris sui potestatem recasuri 
non sunt. itoque si moriente 
auo pater eorum et uiuat et in 



124. Let us now examine the 
modes whereby persons depen- 
dent on a superior are freed from 
their dependence. 

125. And, first, let us con- 
sider persons subject to power. 

126. How slaves are liber- 
ated may be intelligible from 
what we have explained above 
about servile manumission. 



127. Children under paternal 
power become independent at the 
parent's death, subject, however, 
to this reservation : the death of 
a father always releases his sons 
and daughters from dependence : 
the death of a grandfather only 
releases his grandchildren from 
dependence, provided that it does 
not subject them to the power of 
their father : for if at the death 
of the grandfather the father is 
alive and in his power, the grand- 



I. 124^131.] Q. M. IVS POTESTATIS SOLVATVR 79 



potestate patris (sui) fuerit, 
tune post obitum aui in patris 
sui potestate fiunt; si uero is, 
quo tempore auus moritur, aut 
iam mortuus est aut exiit de 
potestate (patris, tune hi, quia 
in potestatem) eius cadere non 
possunt, sui iuris fiunt. 

Inst. 1. c. 

128. Cum autem is cui 
ob aliquod maleficium ex lege 
Cornelia aqua et igni interdici- 
tur ciuitatem Romanam amit- 
tat, sequitur ut, quia eo modo 
ex numero ciuium Romanorum 
tollitur, proinde ac mortuo eo 
desinant liberi in potestate eius 
esse ; nee enim ratio patitur, ut 
peregrinae condicionis homo 
ciuem Romanum in potestate 
habeat. pari ratione et si ei 
qui in potestate parentis sit 
aqua et igni interdictum fuerit, 
desinit in potestate parentis es- 
se, quia aeque ratio non patitur, 
ut peregrinae condicionis homo 
in potestate sit ciuis Romani 
parentis. Inst. 1, 12 ; 1. 

129. Quodsi ab hostibus 
captus fuerit parens, quamuis 
seruus hostium fiat, tamen pen- 
det ius liberorum propter ius 
postliminii, quo hi qui ab hosti- 
bus capti sunt, si reuersi fue- 
rint, omnm pristina iura reci- 
piunt ; itaque reuersus habebit 
liberos in potestate. si .uero 
illic mortuus sit, erunt quidem 
liberi sui iuris ; sed utrum ex 
hoc tempore quo mortuus est 
apud hostes parens, an ex illo 
quo ab hostibus captus est, du- 
bitari potest. ipse quoque 
films neposue si ab hostibus 
captus fuerit, similiter dicemus 
propter ius postliminii potesta- 
tem quoque parentis in suspense 
esse. Inst. 1, 12, 5. 



children, after the grandfather's 
death, are in the power of the 
father ; but if at the time of the 
grandfather's death the father is 
dead or not subject to the grand- 
father, the grandchildren will not 
fall under his power, but become 
independent. 

128. As interdiction from fire 
and water for an offence against 
the Cornelian law involves loss of 
citizenship, such removal of a man 
from the list of Roman citizens 
operates, like his death, to liberate 
his children from his power, for it 
is inconsistent with civil law that 
an alien should exercise parental 
power over a citizen of Rome : 
conversely, the interdiction from 
fire and water of a person subject 
to parental power terminates the 
power of the parent, because it is 
a similar inconsistency that a 
person of alien status should be 
subject to the parental power of 
a Roman citizen. 



1 29. Though the hostile cap- 
ture of the parent makes him a 
slave of the enemy, the status of 
his children is suspended by the 
jus postliminii, whereby on escape 
from captivity a man recovers all 
former rights : accordingly, if the 
father returns he will have his 
children in his power ; if he dies 
in captivity his children will be 
independent, but whether their 
independence dates from the death 
of the parent or from his capture 
by the enemy may be disputed. 
Conversely, if a son or grandson 
is captured by the enemy, the 
power of his ascendent is also 
provisionally suspended by the 
jus postliminii. 



80 DE PERSONIS [i. 132-136. 

130. Praeterea exeunt li- 130. Further, a son is liberated 

beri uirilis sexus de parentis from parental power by his in- 

potestate si Gamines Diales in- auguration as flamen of Jove, a 

augurentur, et feminini sexus daughter by her selection for the 

si uirgines Vestales capiantur. office of Vestal vir g in - 

131. Olim quoque, quo 131. Formerly, too, when 

tempore populus Romanus in Rome used to send colonies into 

Latinas regiones colonias de- the Latin territory, a son who by 

ducebat, qui iussu parentis in his parents' order enrolled his 

eolomam Latinam nomen dedis- name in a colony ceased to be 

sent, desinebant in potestate under parental power, since he 

parentis esse, quia efficerentur was made a tizen of another 

alterius ciuitatis dues. state. 



128. Relegation was a milder form of punishment than de- 
portation, and involved no loss of civitas nor of domestic rights, 
Inst. 1, 12, 2. 

129. Postliminium is the recovery of rights by a person re- 
turned from captivity, or the recovery of rights over a person or 
thing recovered from hostile possession. The word postliminium 
seems to be derived from pot, the root of potestas or possessio, 
and limen or stlimen = ligamen, and therefore would denote the 
bridging over of the interval of captivity by a fiction of continued 
capacity or possession, ot a doorway is bridged over by a lintel 
(limen). 

130. In imitation of the ancient law Justinian enacted that 
certain dignities should release from patria potestas ; for instance, 
patriciatus and the episcopate, the latter because it made a man 
spiritual father of all mankind, Novella, 81. 

131. The Latini or members of coloniae Latinae were an inter- 
mediate class between cives and peregrini. They differed from 
peregrini in that they had commercium, i.e. capacity of Quiritary 
ownership with its incidents, and they differed from cives in not 
having connubium, and consequently being incapable of patria 
potestas, Cic. Pro Caecina, 35. Cf. 22, comm. A Roman citizen 
could only become a Latin with his own consent. Qui cives 
Romani in colonias Latinas proficiscebantur, fieri non poterant 
Latini ni erant auctores facti nomenque dederant, Cic. De Domo, 30. 
' Roman citizens who went to Latin colonies did not lose their 
citizenship without voluntary enrolment among the colonists.' See 
also Cic. Pro Balbo, 11. 

132. Praeterea emancipa- 132. Emancipation also libe- 
tione desinunt liberi in pote- rates children from the power of 
state parentum esse. sed filius the parent, a son being liberated 



I. 132-136.] Q. M. IVS POTESTATIS SOLVATVR 



81 



quidem tribus mancipationibus, 
ceteri uero liberi siue masculini 
sexus siue feminini una manci- 
patione exeunt de parentum 
potestate ; lex enim xn tabu- 
larum tantum in persona filii 
de tribus mancipationibus lo- 
quitur his uerbis si PATER FI- 

LIVM (T.EB) VENVM DVIT, A PA- 

TBE FILTVS LIBER ESTO. eaque 
res ita agitur : mancipat pater 
filium alicui ; is eum uindicta 
manumittit ; eo facto reuertitur 
in potestatem patris ; is eum 
iterum mancipat uel eidem uel 
alii (sed in usu est eidem man- 
cipari) isque eum postea sirni- 
liter uindicta manumittit ; eo 
facto rursus in potestatem pa- 
tris reuertitur ; tertio pater eum 
mancipat uel eidem uel alii (sed 
hoc in usu est, ut eidem man- 
cipetur), eaque mancipatione 
desinit in potest&te patris esse, 
eftamsi nondum manumissus sit 
sed adhuc in causa mancipii. 
sj | 1 missi- 



(3 uersus in G legi nequeunt.) 
Inst. 1, 12, 6 ; Epit. 1, 6, 3. 



132 a. 



-pa- 



trono in bonis 
(3 ueraU8 in C legi nequeunt.) 
feminae una \ manci- 
patione exeunt de patris pote- 

state 1 manumissae 

fuerint s 1 ( 1 

Inst. 1. c. 



by three mancipations, other 
issue, male or female, by a single 
mancipation ; for the law of the 
Twelve Tables only mentions 
three mancipations in the case 
of the son, which it does in the 
following terms : IF A FATHER 

SELL A SON THREE TIMES, THE SON 
SHALL BE FREE FROM THE FATHER. 

The ceremony is as follows : the 
father mancipates his son to some 
one; the alienee manumits him by 
fictitious vindication, whereupon 
he reverts into the power of his 
father ; the father again manci- 
pates him to the same or a diffe- 
rent alienee, usually to the same, 
who again manumits him by 
fictitious vindication, whereupon 
he reverts a second time into the 
power of his father ; the father 
then mancipates him a third time 
to the same or a different alienee, 
usually to the same, and by this 
third mancipation the son ceases 
to be in the power of the father 
even before manumission, while 
still in the status of a person 
held in mancipation. [The alienee 
or fiduciary father should then 
remancipate him to the natural 
father, in order that thereupon 
the natural father by manumit- 
ting him may acquire the rights 
of patron instead of the fiduciary 
father.] 

1 32 a. A manumitter of a free 
person from the state of man- 
cipium has the same rights to the 
succession of his property as a 
patron has in respect of the pro- 
perty of his freedman. Women 
and male grandsons by a son 
pass out of the power of their 
father or grandfather after one 
mancipation ; but unless they are 
remancipated by their fiduciary 
father, and manumitted by their 
natural father, the latter has no 
rights of succession to their pro- 
perty. 



G 



82 



DE PERSONIS 



[i. 132-136. 



133. Admonendi autem 

sumus liberum esse arbitrium 
et qui filium et ex eo nepotem 
in potestate habebit, filium 
quidem de potestate dimittere, 
nepotem uero in pot&state re- 
tinere ; uel ex diuerso filium 
quidem in potestate retinere, 
nepotem uero manumittere, 
uel omnes sui iuris efficere. 
eadem et de pronepote dicta 

esse intellegemus. 

Inst. 1, 12, 7 ; Gaius in Dig. 
1,7,28. 



134. 



-et duae 



intercedentes manumissiones 
proinde fiunt, ac fieri solent 
cum ita eum pater de potestate 
dimittit, ut sui iuris efficicttur. 
deinde aut patri remancipatur, 
et ab eo is qui adoptat uindicat 
apud praetorem filium suum 
esse, et illo contra non uin^- 
cante (a) praetore uindicanti 
filius addicitur ; aut non reman- 
cipatiir patri, sed ab eo uindi- 
cat is qui adopa, apud quern 
in teitia mancipatione est ; sed 
sane commodius est patri re- 
mancipari: in ceteris uero 
liberorum personis sen mascu- 
lini seu feminini sexus una sci- 
licet mancipatio sufficit, et aut 
remancipan-tur parenti aut non 
remancipantur. Eadem et in 
prouinciis apud praesidem pro- 
uinciae solent fieri. 

Inst. 1,12,8. 



135. Qui ex filio semel ite- 
rumue mancipato conceptus 
est, licet post tertiam mancipa- 
tionem patris sui nascatur, 
tamen in aui potestate est, et 
ideo ab eo et ernancipari et in 
adoptionem dari potest. At is 



133. But it should be noticed 
that a grandfather who has 
both a son, and by his son a 
grandson, in his power, may either 
release his son from his power 
and retain the grandson, or retain 
the son and manumit the grand- 
son, or emancipate both son and 
grandson ; and a great grand- 
father has a similar latitude of 
choice. 



134. A father is also divested 
of power over his children by 
giving them in adoption. To give 
a son in adoption, the first stage 
is three mancipations and two 
intervening manumissions, as in 
emancipation ; after this the son is 
either remancipated to the father, 
and by the adopter claimed as son 
from him by vindication before 
the praetor, and in default of 
counterclaim by the natural father 
is awarded by the praetor to the 
adoptive father as his son; or 
without remancipation to the 
natural father is directly claimed 
by the adoptive father by vin- 
dication from the alienee of the 
third mancipation (fiduciary fa- 
ther) ; but it is more convenient 
to interpose a remancipation to 
the natural father. In the case 
of other issue, male or female, a 
single mancipation suffices, with 
or without remancipation to the 
natural father. In the provinces 
a similar ceremony can be per- 
formed before the president of 
the province. 

135. A grandson begotten 
after the first or second mancipa- 
tion of the son, though born after 
the third mancipation, is subject 
to the power of the grandfather, 
and may by him be given in 
adoption or emancipated: a grand- 



i. 132-136.] Q. M. IVS POTESTATIS SOLVATVR 



83 



qui ex eo filio conceptus est qui 
in tertia mancipatione est non 
nascitur in aui potestate. sed 
eum Labeo quidem existimat m 
eiusdem mancipio esse cuius et 
pater sit ; utimur autem hoc 
iure, ut quamdiu pater eius in 
mancipio sit, pendeat ius eius ; 
et siquidem pater eius ex man- 
cipatione manumissus erit, ca- 
dat in eius potestatem ; si uero 
is dum in mancipio sit deces- 
serit, sui iuris fiat. 

135 a. | Eadem scilicet 

1 nam ] ut supra 

diximus, quod in filio faciunt 
tres manci|pationes, hoc facit 
una mancipatio in nepote. 



136.-| 1 1 

Maximi et | Tuberonis cautum 
est, ut haec quod ad sacra tan- 
turn uideatur in manu esse, 
quod uero ad ceteras causas 
proinde habeatur, atque si in 

manum non conuenisset.| 1 

potestate parentis libe- 

rantur ; nee in terest, an in uiri 
sui manu smt an extranei, 
quamuis hae solae loco filia- 
rum habeawtur quae in uiri 
malnu sunt. 



son begotten after the third man- 
cipation is not born in the power 
of the grandfather, but, according 
to Labeo, is born in mancipation 
to the person to whom his father 
is rnaneipated. The rule, how- 
ever, which has obtained accept- 
ance with us is, that so long as the 
father is in mancipation the status 
of the child is in suspension, and if 
the father is manumitted the child 
falls under his power ; if the 
father dies in mancipation the 
child becomes independent. 

135 a. The rule is the same 
in the case of a child begotten 
of a grandson who has been 
once mancipated, but not yet 
manumitted ; for, as before men- 
tioned, the result of three man- 
cipations of the son is obtained 
by a single mancipation of the 
grandson. 

136. A wife subjected to the 
hand of a husband by confarrea- 
tion is not thereby freed from 
the power of her father ; and this 
is declared by the senatusconsult 
of the consuls of Maximus and 
Tubero respecting the priestess of 
Jove, according to which she is 
only in the marital hand as far as 
the sacra are concerned, the status 
of the wife being unaffected in 
other respects by such subjection. 
Subjection to hand by coemption 
liberates from the power of the 
parent, and it is immaterial 
whether it is a coemption sub- 
jecting the woman to the hand 
of a husband or to the hand of 
a stranger, although the status 
of quasi daughter only belongs 
to a woman in the hand of a 
husband. 



132. The epitome of Gaius, 1, 6, 3, which throws light on this 
passage, mentions as present at an emancipation, besides the five 
witnesses and libripens, a seventh person called antestatus, who 
is also mentioned in the bronze tablet referred to in the remarks 

a a 



84 DE PERSONIS [i. 132-136. 

on pignus and fiducia. Book 3, 90, 91, comm. His duty may 
have been to ask the witnesses whether they were bearing witness 
to the transaction (antestari). Cf. Koby, Private Law, pp. 180, n. 2, 
423, n. 3. 

The vindicta or wand used in manumission, as already stated, was 
the rod or verge symbolizing a lance carried by the parties in a real 
action, 4 1 3. The status of freedom (libertas) whether as opposed to 
slavery or to bondage (mancipii causa) was a real right (jus in rem), 
and therefore a subject to be contested in a vindicatio. Manumis- 
sion by vindicta was a collusive vindicatio, in o.'her words, an in 
jure cessio. Cf. Roby, 1, p. 26, n. 1. 

The epitome of Gaius (1. c.) calls the person, to whom the son was 
mancipated by pater naturalis, pater fiduciarius, which implies that 
the mancipation was accompanied by a fiducia or declaration of 
trust. The trust would be that the pater fiduciarius should make 
default or confess in the subsequent in jure cessio. 

134. Assuming that in adoption, as in emancipation, the person 
to whom the son was mancipated was called pater fiduciarius, we 
find in adoption three fathers in the field, pater naturalis, pater 
fiduciarius, and pater adoptivus. Remancipation to the natural 
father added a stage to the process ; but is described as more con- 
venient, because it reduced the number of actors from three to two ; 
for it enabled the part of pater fiduciarius to be played .by pater 
adoptivus. It appears from 135 (cf. however 141) that though 
the status of bondage was purely formal, yet perhaps to give an 
air of reality to the drama, the status was sometimes made to 
have a certain duration. So when a prince is advanced from the 
rank of private to that of general, a certain interval is interposed 
between the intermediate promotions for the sake of decorum, 
though, the whole proceeding being unreal, all the steps, if the 
authorities were so disposed, might be compressed into a single day. 
Ihering, 46. 

The status of paterfamilias or of filiusfamilias being, like other 
kinds of status, a real right, the claim of a person as filiusfamilias 
was a matter to be contested in a real action or vindicatio brought 
against the person in whose possession he was. This would seem 
the more obvious in primitive times, when probably no distinction 
was made between patria potestas and dominica potestas, i.e. be- 
tween paternal power and absolute proprietorship. Such vindicatio 
was sometimes a matter of contentious (not voluntary) jurisdiction, 
i.e. of genuine litigation. Cf. Dig. 6. 1, 1, 2, where we are told that 
the ground of making a claim of this kind must be particularly 
specified (adfecta causa) in the vindication. The ordinary mode 
of judicially determining the status of a child in case of dispute was 



I. 137-141.] Q. M. MANY ET MANCIPIO LIBEEENTVR 85 

by a praejudicium, 4 44, comm. The father could compel any one, 
who had possession of his child, to produce him by the interdictum 
de liberis exhibendis or de liberis ducendis 4 138-170, comm. 
In case of dispute between paterfamilias and filiusfamilias inter 
se, recourse might be had to the extraordinaria cognitio of the 
magistrate. Sohm's Inst. 101. 

Justinian simplified the formalities of emancipation and adoption. 
He allowed the former to be accomplished by a simple declaration 
of the father before a competent judge or magistrate (Emancipatio 
Justinianea) ; and the latter after appearance of all the parties before 
such a judge, insinuatio, i.e. a memorandum of the transaction in the 
public records (actis intervenientibus) being in both cases required. 
Emancipation by imperial rescript had been previously instituted by 
the Emperor Anastasius (Emancipatio Anastasiana). Imperial rescript 
was required for effecting an arrogation. 

In English law children are enfranchised, and the limited power 
of the father over their person and property is terminated by 
two events which did not operate emancipation in Eoman law, 
marriage and arrival at years of discretion, that is, attainment of 
majority by the completion of twenty-one years of age. At 
these points, under English law, the empire of the father or other 
guardian gives place to the empire of reason ; whereas neither 
marriage nor majority released the Eoman son or daughter from 
potestas. 

136. Cf. 108-115 &, comm. Q. Aelius Tubero and Paulus 
Fabius Maximus were consuls B.C. 11, the year in which the office 
of flamen dialis was re-established. This cannot therefore be the 
law A.D. 23 referred to by Tacitus, Ann. 4, 16 (see note to Muirhead's 
Gaius). 

137. 1 1 j 137. A woman subjected to 

mancipatione desinunt in hand by coemption is, like a 

manu esse, et si ex ea mancipa- daughter, released therefrom by 

tione manumissae fuerint sui one mancipation, and on sub- 

iuris ef|fici^7iiur. sequent manumission becomes 

independent. 

xio-y^ -.,. i 137 a. Between a woman who 

V *wf w ' . ---(j UcttJ f - ' , . . . . ., 

cogere coem^onatorem ha * entered 1! l to a coem P tlon & 

potest, ut se remancipet, cui a stranger and a woman who has 

4 ,,., ...,^ . entered into a coemption with a 

lp sa ue l|it nihilo magis husband there is this difference, 

potest cogere quam et fi ha that the former has the power of 

patrem. sed film quidem nullo compelling the coemptionator to 

mpdo patrem potest cogere, remancipate her to any one she 

etiamsi adoptiua sit ; haec au- pleases, whereas the latter cannot 

tern {uirum} repudio misso compel him to do this any more 

proinde conpellere potest, at- than a daughter can her father. 



86 



DE PERSONIS 



[i. 137-141. 



que si ei numquam nupta 
fuisset. 



138. li qui in causa man- 
cipii sunt, quia seruorum loco 
habentur, uindicta censu testa- 
mento manumissi sui iuris 
fiuut. 

1 39. Nee tamen in hoc casu 
lex Aelia Sentia locum habet. 
itaque nib.il requirimus, cuius 
aetatis sit is qui manumittit et 
qui manumittitur ; ac ne illud 
quidem, an patronum credito- 
remue manumissor babeat. ac 
ne numerus quidem lege Fufia 
Caninia finitus in his personis 
locum babet. 

140. Quin etiam inuito 
quoque eo cuius in mancipio 
sunt censu libertatem consequi 
possunt, excepto eo quern pater 
ea lege mancipio dedit ut sibi 
remancip&tur ; nam quodam- 
modo tune pater potestatem 
propriam reseruare sibi uidetur 
eo ipso, quod mancipio recipit. 
1 ac ne is quidem dicitur inuito 
eo cuius in mancipio est censu 
libertatem consequi, quern pater 
ex noxali causa [mancipio de- 
dit], ueluti quod furti eius no- 
mine damnatus est, [et eum] 
mancipio actori dedit ; nam 
bunc actor pro pecunia habet. 



A daughter, however, has no 
means of compelling her father 
to emancipate her even if she is 
only such by adoption, whereas 
a wife by sending a message of 
divorce can compel her husband 
to release her from his hand, just 
as if they had never been married. 

138. As persons in mancipa- 
tion are in the position of slaves, 
manumission byfictitious vindica- 
tion, by entry on the censor's 
register, by testamentary disposi- 
tion, are the modes by which 
they acquire independence. 

139. But to them the lex 
Aelia, Sentia has no application : 
no age of the person manumitting 
or the person manumitted is 
required ; the manumission is 
subject to no proviso against 
fraud on the rights of patron or 
creditors, nor even to the nu- 
merical limitation of the lex 
Fufia Caninia. 

140. But even though the 
assent of the holder in mancipa- 
tion is withheld, freedom may 
be acquired by entry on the 
register of the censor, except 
when a son has been mancipated 
by a father with a condition of 
remancipation, then the father 
is deemed to have reserved in a 
way his own power in consequence 
of the condition that he is to 
have him back in mancipation ; 
nor can liberty be acquired with- 
out the assent of the holder in 
mancipation by entry on the 
censor's register when a delin- 
quent son has been surrendered 
by his father in consequence of 
a noxal suit ; when, for instance, 
the father has been condemned in 
an action for a theft committed by 
the son, and has by mancipation 
surrendered his son to the plaintiff, 
for in this case the plaintiff holds 
him in lieu of pecuniary damages. 



I. 142-154.] DE TVTELIS 87 

& 141. In summa admonendi 141. Finally, it is to be 

sumus aduersus eos quos in observed that contumelious treat- 

mancipio habemus nihil nobis ment of a person held m mancipa- 

contu^eliosefacerelieere: alio- fc 



qum mmriarumtenebimu^ ac *< n ^ 

ne dm quidem in eo mre deti- igtent but m * rel forma i and 

nentur homines, sed plerumque momentary except when it is 

hoc fit dicis gratia uno mo- the consequence O f surrender in 

mento, nisi scilicet ex noxali lieu of Damages in an action of 

causa mancipentur. trespass. 

137. Dissolution of marriage (divortium) could be effected either 
by the consent of both parties or by the act of one. The message of 
repudiation (repudium) contained the formula, Tuas res tibi habeto, 
' Take away thy property.' Mimam illam suam suas res sibi habere 
jussit claves ademit, exegit, Cic. Phil. 2, 28. ' The actress was ordered 
to pack, deprived of the keys, turned out of the house,' The lex Julia 
de adulteriis prescribed a form for repudium, and required the message 
to be delivered by a freedman of the family, in the presence of 
seven witnesses above the age of puberty and citizens of Rome. 
The party who made a causeless repudium, or whose misconduct 
justified a repudium, was punished by pecuniary losses in respect of 
dos and propternuptial donations. After much veering legislation 
under the Christian Emperors, Justinian enacted that a man or woman 
who divorced without a cause should retire to a cloister and forfeit 
all his or her estate, one moiety to his or her successors, and the other 
moiety to the cloister. Nov. 1 34, 1 1. But it was not till later times 
that the Church succeeded in making marriage indissoluble by law, 

140. Ihering, 32, infers from this that the census, like a year 
of jubilee, freed all but noxal and fictitious bondsmen at the end of 
five years : and that the Twelve Tables, in limiting a father to three 
mancipations, disabled him from selling the services of his son for 
more than fifteen years. As to noxal surrender of filiifamilias see 

4 75-81. 

141. Whereas no injuria could be done to a slave. 4 222. 

DE TVTELTS. 

& 142. Transeamus nunc ad 142. Let us now proceed to 
aliara diuisionem. nam ex his another classification: persons not 

subiect to power, nor to hand, 
personis quae neque in pote- ^ hdd mancipation) may 

state neque m manu neque in gtm be sub j ec t either to tutelary 

mancipio sunt quaedam uel in guardianship or to curatorship, 

tutela sunt uel in curatione, O r may be exempt from both 

quaedam neutro iure tenentur. forms of control. We will first 



88 



DE PERSONIS 



[i. 142-154. 



uideanras igitur quae in tutela 
quae in curatione sint ; ita enim 
intellegemus ceteras personas 
quae neutro iure tenentur. 

Inst. l,13pr. 

143. Ac prius dispiciamus 
de his quae in tutela sunt. 

Inst. 1. c. 

144. Permissum est itaque 
parentibus liberis quos in po- 
testate sua habent testament 
Stores dare : masculini quidem 
sexus inpuberibus, (feminini 
autem sexus cuiuscumque ae- 
tatis sint, et turn (?uo)que, 
cum nuptae sint. ueteres enim 
uoluerunt feminas, etiamsi per- 
fectae aetatis sint, propteranimi 
leuitatem in tutela esse. 

Inst. 1,13, 3. 

145, Itaque si quis filio 
filiaeque testamento tutorem 
dederit et ambo ad pubertatem 
peruenerint, filius quidem desi- 
nit habere tutorem, filia uero 
nihilo minus in tutela perma- 
net ; tantum enim ex lege lulia 
et PapiaPoppaea iure liberorum 
tutela liberanturfeminae. loqui- 
mur autem exceptis uirginibus 
Vestalibus quas etiam ueteres in 
honorem sacerdotii liberas esse 
uoluerunt, itaque etiam lege xn 
tabularum cautum est. 

Inst. 1. c. 

146. Nepotibus autem nep- 
tibusque ita demum possumus 
tesiamento tutores dare, si post 
mortem nostram in patris sui 
potestatem [iure] recasuri non 
sint. itaque si filius meus 
mortis meae tempore in pote- 
state mea sit, nepotes ex eo non 
poterunt ex testamento meo 
habere tutorem, quamuis inpote- 
state mea fuerint ; scilicet quia 
mortuo me in patris sui pote- 
state futuri sitnt. Inst. 1. c. 



examine what persons are subject 
to tutelary guardianship and 
curatorship, and thus we shall 
know who are exempt from both 
kinds of control. 

143. And first of persons 
subject to tutelary guardianship 
or tutelage. 

144. The law allows a parent 
to appoint guardians in his will 
for the children in his power, 
below the age of puberty, if they 
are males ; whatever their age, 
and notwithstanding their mar- 
riage, if they are females ; for, 
according to our ancestors, even 
women who have attained their 
majority, on account of their levity 
of disposition, require to be kept 
in tutelage. 

145. Accordingly, when a 
brother and sister have a testa- 
mentary guardian, on attaining 
the age of puberty the brother 
ceases to be a ward, but the sister 
continues, for it is only under 
the lex Julia and Papia Poppaea 
by title of maternity that women 
are emancipated from tutelage ; 
except in the case of vestal 
virgins, for these, even in our 
ancestors' opinion, are entitled 
on account of the dignity of their 
sacerdotal function to be free from 
control, and so the law of the 
Twelve Tables enacted. 

146. A grandson or grand- 
daughter can only receive a testa- 
mentary guardian provided the 
death of the testator does not 
bring them under parental power. 
Accordingly, if at the time of the 
grandfather's death the father 
was in the grandfather's power, 
the grandchildren, though in the 
grandfather's power, cannot have 
a testamentary guardian, because 
his death leaves them in the 
power of the father. 



I. 142-154.] 



DE TVTELIS 



89 



147. Cum tamen in con- 
pluribus aliis causis postumi 
pro iam natis habeantur, et in 
hac causa placuit non minus 
postumis quam iam natis testa- 
mento tutores dari posse, si 
modo in ea causa sint, ut si 
uiuis nobis nascantur, in pote- 
state nostra fiant. hos (enim) 
etiam heredes instituere possu- 
mus, cum extraneos postumos 
heredes instituere permissum 
non sit. Inst. 1,13, 4. 

148. { Vocoriy quae in manu 
est proinde ac filiae, item nurui 
quae in filii manu est proinde 
ac nepti tutor dari potest. 

149. Kectissime autem 
tutor sic dari potest : L. TITIVM 

LIBERIS MEIS TVTOBEM DO. Bed 

et si ita ecriptum sit LIBERIS 

MEIS uel VXOBI MEAE TITIVS 

TVTOB ESTO, recte datus intelle- 
gitur. 

150. In persona tamen 
uxoris quae in manu est recepta 
est etiam tutoris optio, id est 
ut liceat ei perrnittere quern 
uelit ipsa tutorem sibi optare, 
hoc modo : TITIAE \XORI MEAE 

TVTOEIS OPTIONEM DO. quo casu 

licet uxori (tutorem optare) uel 
in omnes res uel in unam forte 
aut duas. 

151. Ceterum aut plena 
optio datur aut angusta. 

152. Plena ita dari solet, 
ut proximo supra diximus. 
angusta ita dari solet TITIAE 

VXOBI MEAE TVTOEIS OPTIONEM 
DVMTAXAT SEMEL DO, aut DVM- 
TAXAT BIS DO. 

153. Quae optiones pluri- 
mum inter se ditferunt. nam 
quae plenam optionem habet 
potest semel et bis et ter et 



1 47. As in many other matters 
after-born children are treated on 
the footing of children born before 
the execution of the will, so it is 
ruled that after-born children, as 
well as children born before the 
will was made, may have guar- 
dians therein appointed, provided 
that if born in the testator's life- 
time they would be subject to 
his power [and self-successors], 
for such after-born children may 
be instituted heirs, but not after- 
born strangers. 

148. A wife in the testator's 
hand may receive a testamentary 
guardian as if she were a daughter, 
and a son's wife in the son's hand 
as if she were a granddaughter. 

149. The most regular form 
of appointing a guardian is in 
the following terms : ' I APPOINT 

LUCIUS TlTIUS GUAKDIAN TO MY 

CHILDREN'; the form, 'BE Lucius 

TlTTUS GUARDIAN TO MY CHILDREN* 

or, 'TO MY WIFE ' is also valid. 

150. To a wife in his hand a 
testator is permitted to devise the 
selection of her guardian, that is, 
he may authorize her to choose 
whom she pleases, in the follow- 
ing terms : i To TITIA MY WIFE 

I DEVISE THE SELECTION OF HER 

GUARDIAN'; whereupon she may 
nominate either a general guar- 
dian or a guardian for certain 
specified matters. 

151. The option of a guardian 
may be limited or unlimited. 

152. Unlimited option is 
usually devised in the form above 
mentioned ; limited option in the 
following terms: 'To TITIA MY 

WIFE I DEVISE NOT MORE THAN 

ONE OPTION ' or, 'NOT MORE THAN 

TWO OPTIONS OF A GUARDIAN.' 

153. The effect of these forms 
is very different : unlimited option 
is a power of choosing a guardian 
an indefinite number of times; 



90 DE PERSONIS [i. 142-154. 

saepius tutorem optare ; quae limited option is the right of a 

uero angustam habet optionem, single choice, or of two choices, 

si dumtaxat semel data est as may happen, 
optio, amplius quam semel op- 
tare non potes ; si dumtaxat 
bis, amplius quam bis optandi 
facultatem non habei. 

154. Vocantur autem hi 154. A guardian actually 

qui nominatim testamento tu- nominated by the will of the 

tores dantur datiui, qui ex testator is called a dative guardian; 

optione sumuntur optiui. **? by selection (of the 

widow) is called an optative 

guardian. 

Having examined those inferiorities of legal capacity which con- 
stituted a status, we now proceed to examine certain cases of inca- 
pacity of acting independently which, though analogous to the former 
as belonging to the sphere of unequal rights, were not included by 
the Romans under the denomination of status. The inferiorities of 
capacity in infancy, minority, tutelary wardship, curatel, were 
different in character and not so considerable as those which we 
have hitherto examined. The diminution of rights in a lapse 
from independence to curatel was less than the least capitis 
minutio, and accordingly a prodigal who was interdicted from 
the administration of his estate and subjected to the control of 
a curator, was not said to undergo a status mutatio : his patrimony 
still vested in him, though he was deprived of its administration ; 
whereas adrogatio and in manum conventio divested a person of the 
capacity of ownership and active obligation : inferior status, in a 
word, is incapacity of right ; wardship and curatel are only incapa- 
cities of disposition. 

Guardianship is thus defined : Est autem tutela, ut Servius definit, 
jus ac potestas in capite libero, ad tuendum eum qui propter aetatem 
se defendere nequit, jure civili data ac permissa, Inst. 1, 13, 1. 
' Guardianship is a right and power over an independent person 
conferred or authorized by the Civil law for the protection of one 
who is incapacitated by age for self-defence.' The duties of the 
guardian related both to the person and to the property of the ward. 
In respect of "his person, the guardian was charged with the care of 
his nurture and education : in respect of his property, the guardian's 
function was distinguished as either exclusive administration or 
concurrent interposition of authority (rem gerere et auctoritatem 
interponere). Up to the age of seven the ward was called infans, 3 
109, and during this period the guardian acted alone (administratio, 
negotiorum gestio) ; after the completion of seven years until the age 
of puberty (fourteen for males, as the time was ultimately fixed, 



I. 155-158.] DE LEGITIMA AGNATORVM TVTELA 91 

twelve for females) the ward acted, and the guardian concurrently 
gave his sanction (auctoritas). The sanction of the guardian was a 
legal act of a highly formal character (actus legitimus), by which such 
legal acts of his ward, as would otherwise have been imperfect, obtained 
validity. Accordingly the guardian could not give his sanction by 
letter or through an agent, but had to be present himself for the 
purpose at the time when the act of the ward was executed, so that 
he might be a subsidiary party to it. Ins.t. 1, 21, 2 Tutor autem 
statim in ipso negotio praesens debet auctor fieri, si hoc pupillo 
prodesse existimaverit. post tempus vero aut per epistulam inter- 
posita auctoritas nihil agit. 

The sanction of the guardian was necessary whenever the act of 
the ward was one which might possibly entail loss, but not otherwise. 
Of. 2 80-85, Inst. 1. c. pr. and 1 Auctoritas autem tutoris in quibus- 
dam causis necessaria pupillis est, in quibusdam non est necessaria. 
ut ecce si quid dari sibi stipulentur, non est necessaria tutoris aucto- 
ritas: quod si alias pupilli promittant, necessaria est: namque placuit 
meliorem quidem suam condicionem licere eis facere etiam sine 
tutoris auctoritate, deteriorem autem non aliter quam tutore auctore. 
unde in his causis, ex quibus mutuae obligationes nascuntur, in 
emptionibus venditionibus, ... si tutoris auctoritas non interveniat, 
ipsi quidem, qui cum his contrahunt, obligantur, at invicem pupilli 
non obligantur In respect of administration of property the 
guardian incurred a quasi-contractual obligation, and was accordingly 
liable to the judicium or actio tutelae. 

In the time of Gaius, women continued subject to guardianship 
after the age of puberty : the functions of the guardian were in their 
case confined to auctoritas, which in most cases was a mere formality ; 
the power of administration vested in the woman, 190. 

147. For an account of the different classes of Postumi see 2 
130, comm. 

148. In filii manu must be regarded as an inaccurate expression : 
for filiusfamilias was incapable of all civil rights, including manus, 
and could only serve as a conduit-pipe by which the right of manus 
vested in his father. 

154. In the Code and Digest of Justinian the term tutor dativus 
is used to signify a guardian appointed by a magistrate. Cod. 5, 50, 5 ; 
Dig. 46, 6, 7. 

DE LEGITIMA AGNATORVM TVTELA. 

155. Quibus testamento 155. In default of a testa- 

quidem tutor datus non sit, iis mentary guardian the statute of 

, ,, 7 7 \ ,. the Twelve Tables assigns the 

exlegexn<ta^amm>agnati guardianship to the nearest ag- 

sunt tutores, qui uocantur legi- nate s, who are hence called statu- 
timi. Inst. 1, 15 pr. tory guardians. 



DE PERSONIS 



[i. 155-158. 



156. Sunt autem agnati 
per uirilis sexuspersonas cogna- 
tione iuncti, quasi a patre 
cognati, ueluti frater eodem 
patre natus, fratris filius ne- 
posue ex eo, item patruus et 
patrui filius et nepos ex eo. at 
hi qui per feminini sexus per- 
sonas cognatione coniunguntur 
non sunt agnati, sed alias 
natural! iure cognati. itaque 
inter auunculum et sororis 
fiJiuin non agnatio est, sed 
cognatio. item amitae, mater- 
terae filius non est mini agnatus, 
sed cognatus, et inuicein scilicet 
ego illi eodem iure coniungor, 
quia qui nascuntur patris, non 
matris familiam secuntur. 

Inst. 1,15,1. 

157. Et olim quidem, 
quantum ad legern xii tabu- 
larum attinet, etiam feminae 
agnatos habebant tutores. sed 
postea lex Claudia lata est 
quae, quod ad feminas attinet, 
(agnatorum} tutelas sustulit ; 
itaque masculus quidem in- 
pubes fratrem puberem aut 
patruum habet tutorem, femina 
uero talem habere tutorem non 
potest. 

158. Sed agnationis quidem 
ius capitis deminutione peri- 
mitur, cognationis uero ius eo 
modo non commutatur, quia 
ciuilis ratio ciuilia quidem iura 
corrumpere potest, naturalia 
uero non potest. Inst. 1, 15, 3. 



156. Agnates (3 10) are 
persons related through males, 
that is, through their male ascen- 
dents : as a brother by the same 
father, such brother's son or son's 
son ; a father's brother, his son 
or son's son. Persons related 
through female ascendents are 
not agnates but simply cognates. 
Thus, between an uncle and his 
sister's son there is not agnation, 
but cognation : so the son of my 
aunt, whether she is my father's 
sister, or my mother's sister, 
is not my agnate, but my cog- 
nate, and vice versa ; for chil- 
dren are members of their father's 
family, not of their mother's. 



157. In former times, the 
statute of the Twelve Tables made 
females as well as males wards of 
their agnates : subsequently a law 
of the EmperorClaudius abolished 
this wardship in the case of fe- 
males : accordingly, a male below 
the age of puberty has his brother 
above the age of puberty or his 
paternal uncle for guardian, but 
a female cannot have such a 
guardian. 

158. Capitis deminutio extin- 
guishes rights by agnation, while 
it leaves unaffected rights by cog- 
nation, because civil changes can 
take away rights belonging to 
civil law (jus civile), but not rights 
belonging to natural law (jus 
naturale). 



156. As to this definition of agnati see Moyle's note to Inst. 
1, 15, 1. The maxim here enunciated is calculated to give a false 
idea of the relation of the institutes of jus gentium to those of jus 
civile. Title by cognation is just as much an institute of positive 
law as title by agnation, though cognation, or blood-relationship, is in 
itself a natural and permanent tie, while agnation is an artificial one, 
and therefore only occasional. The synthesis of title and right in jus 



I. 159-164.] DE CAPITIS MINVTIONE 93 

civile may be freakish and capricious, while that in jus gentium may 
be reasonable and expedient ; but both are equally positive institu- 
tions, and both are equally mutable and liable to be overruled. 
Accordingly, the specious-sounding maxim, that revolutions in status 
or civil condition cannot affect such rights as are annexed to natural 
titles, crumbles away as soon as we examine it, for we find that it 
only holds good of the most insignificant change, the minima 
capitis minutio, 3 27, and that maxima and media capitis minutio 
extinguish title by cognation, which belongs to jus gentium, as well as 
title by agnation, which belongs to jus civile. Inst. 1, 16, 6. 

The truth is, that the effects of a collision of Civil and Natural 
law fall under two very different classes, which it is important to 
distinguish. 

1. If the command of the civil lawgiver, under the sway of 
motives financial, political, ethical, or religious, is highly imperious 
and absolutely compulsive, all natural titles with which it may 
come in conflict are absolutely void and inoperative : e. g. the Sc. 
Velleianum, prohibiting suretyship of women, allowed no naturalis 
obligatio to be produced by any such suretyship : and so with the 
laws prohibiting gambling and usury. 

2. If the command of the civil law is less peremptory and abso- 
lute, it may deprive any conflicting natural title of plenary force, 
and yet leave to it a naturalis obligatio capable of acquiring efficacy 
by some machinery of positive law ; e. g. the Sc. Macedonianum, 
prohibiting money loans to a filiusfamilias without the sanction of 
his father, made them irrecoverable by action, and yet the courts 
recognized in the borrowing filiusfamilias a naturalis obligatio, which 
was capable of novation, Dig. 46, 2, 19, and a bar to recovery back 
(condictio indebiti) in case of actual repayment, Dig. 14, 6, 10. 

When Justinian consolidated the law of intestate succession and 
made the right of succession depend on cognation instead of agnation, 
he made a corresponding change in the obligation of guardianship, 
which henceforth devolved on cognates instead of agnates, women 
as formerly, with the exception of mothers and grandmothers, being 
excluded from the office, Nov. 118, 5. 

DE CAPITTS MINVTIONE. 

159. Est autem capitis 159. Capitis deminutio is a 

deminutio prioris status per- change of a former status which 

mutatio. eaque tribus modis occurs in three ways, i. e. it is 

accidit: nam aut maxima est either greatest, minor or mediate, 

capitis deminutio, aut minor or least, 
quam quidam mediam uocant, 
aut minima. Inst. 1, 16pr. 



94 



DE PERSONIS 



[i. 159-164. 



160. Maxima est capitis 
deminutio, cum aliquis simul 
et ciuitatem et libertatem 
amittit; quae accidit incensis, 
qui ex forma censuali uenire 

iubentur ; quod ius p 1 

ex lege | qui 

contra earn legem in urbe Roma 
do|micilium habuerint ; item 
feminae quae ex senatuscon- 
sulto Claudiano ancillae fitint 
eorum dominorum quibus inui- 
tis et denuntiantibus cum seruis 
eorum coierint. Inst. 1, 16, 1. 

161. Minor siue media 
est capitis deminutio, cum 
ciuitas amittitur, libertas reti- 
netur ; quod accidit ei cui aqua 
et igni interdictum fuerit. 

Inst. 1, 16, 2. 

162. Minima est capitis 
deminutio, cum et ciuitas et 
libertas retinetur, sed status 
hominis commutatur ; quod ac- 
cidit in his qui adoptantur, 
item in his quae coemptionem 
faciunt, et in his qui mancipio 
dantur quique ex mancipatione 
manumittuntur ; adeo quidem, 
ut quotiens quisque mancipe- 
tur aut manumittatur, totiens 
capite deminuatur. 

Inst. 1,16, 3. 

163. Nee solum maiori&ws 
(capitisy deminutionibus ius 
agnationis corrumpitur, sed 
etiam minima ; et ideo si ex 
duobus liberis alterum pater 
emancipauerit, post obitum 
eius neuter alter! agnationis 
iure tutor esse poterit. 

164. Cum autem ad agna- 
tos tutela pertineat, non simul 
ad omnes pertinet, sed ad eos 
tantum qui proximo gradu sunt. 



160. The greatest capitis de- 
minutio is the simultaneous loss 
of citizenship and freedom, which 
happens to those who having 
evaded inscription on the censo- 
rial register are sold into slavery 
according to the regulations of 

the census, also under the 

law when persons in violation of 
it make Rome their place of resi- 
dence, and also under the Sc. 
Claudianum in case of persistent 
intercourse on the part of a free 
woman with another person's 
slave in spite of the dissent and 
denunciation of the owner. 

161. Minor or intermediate 
loss of status is loss of citizenship 
unaccompanied by loss of liberty, 
and is incident to interdiction of 
fire and water. 



162. There is the least capi- 
tis deminutio retaining citizenship 
andfreedom when a man's position 
in the family only is changed, 
which occurs in adoption, coemp- 
tion, and in the case of those 
given in mancipium to be after- 
wards manumitted, so that after 
each successive mancipation and 
manumission a capitis deminutio 
takes place. 



163. Not only by the two 
greater losses of status are rights 
of agnation extinguished, but also 
by the least : accordingly, if one 
of two children is emancipated, 
the elder cannot on the father's de- 
cease be guardian to the younger 
by right of agnation. 

164. When agnates are en- 
titled to be guardians, it is not 
all who are so entitled, but only 
those of the nearest degree. 



I. 159-164.] DE CAPITIS MINVTIONE 95 

160. Ulpian also refers to the penalty incurred by incensi 
(11, 11 cum inceiisus aliquis venierit ; cf. Cic. Pro Caec. 34, 99). 
The lex, the name of which is now illegible, may possibly be the 
lex Aelia Sentia, which by one of its provisions recalled into slavery 
dediticii, who resided in Rome or within a certain distance from it 
( 27), though there is the difficulty that it would be inaccurate to 
speak of such freedmen suffering loss of citizenship as well as 
liberty. Other grounds of reducing to slavery existed at various 
times, as surrender by the pater patratus to a foreign state for an 
offence against international law, Livy, 5, 36, or evasion of military 
service (populus quum eum vendidit qui miles factus non est, Cic. 
Pro Caec. 34, 11 ; Ulp. 11, 11), or capture by the enemy, 129, or 
condemnation for a capital crime, which made the convict a slave 
of punishment (servus poenae, Inst. 1, 16, 1), i.e. reduced him to 
penal servitude, or condemnation of a freedman for ingratitude 
towards his patron (libertiis ingratus circa patromim condemnatus, 
ibid.) whereupon he forfeited his freedom, or collusion of a freeman 
in consenting to be sold as a slave on condition of sharing the 
purchase-money (cum liber homo, major viginti annis, ad pretium 
participandum sese venundari passus est, Inst. 1, 3, 4). After the 
price had been paid, the vendor disappeared, the supposed slave 
recovered his liberty by a liberalis causa, and the purchaser was left 
without his slave and without his money. The praetor, to check 
this fraud, allowed the purchaser to defend himself by exceptio doli, 
and senatusconsulta subsequently enacted, that if the person sold 
was twenty years old at the time of the sale or partition of the 
price, he should really become the slave of the purchaser, Dig. 
40, 12, 7 pr. 1. 

The libertus ingratus would exemplify a fall from the condition 
of libertinus to that of servus ; any of the other instances might be 
a case of a fall from ingenuus to servus ; the fall from ingenuus to 
libertinus would also be an analogous kind of degradation. Thus by 
the Sc. Claudianum a freewoman (ingenua) who had commerce with 
a slave with the consent of his proprietor procreated slaves without 
forfeiting her own freedom, 84 ; she lost status, however, for she 
became the freedwoman of the proprietor, Paulus, 4, 10, 2 Tac. 
Ann. 12, 53. 

161. Under the category of Civitas, as there are three classes, 
civis, latinus, peregrinus, so there are three possible degradations, 
the fall from civis to Latinus, instanced in the emigrant to a Latin 
colony, 131 ; the fall from civis to peregrinus, instanced in the 
interdiction or deportation of a civis ; and the fall from Latinus to 
peregrinus, instanced when the same events happened to Latinus. 
A lapse from liber to servus was a dissolution of marriage, for 



96 DE PERSONIS [i. 159-164. 

servus was incapable of matrimony : a lapse from civis to Latinus 
or peregrinus was a dissolution of civil wedlock (connubium), for 
this could only subsist between cives ; but if both parties consented, 
they might continue in gentile wedlock (matrimonium), Cod. 5, 17, 1. 
The confiscation of property or universal succession of the fiscus, 
which accompanied greatest and minor loss of status, was not an 
incident of the latter kind of capitis minutio (e. g. it did not happen 
when civis became Latinus by emigration ; and an alien, as 
a citizen became by deportation, was capable of holding property), 
but was a special provision of the criminal code. (For an account 
of the different Roman forms of banishment see Mommsen, Rom. 
Strafr. 5, pt. 7.) 

The political elements of civitas, suffragium and honores, were 
forfeited by infamy (infamia) or loss of civic honour (existi- 
matio) ; and hence arises the question whether infamia is to 
be regarded as a capitis minutio (see, on this subject, Greenidge, 
Infamia). 

Austin, in laying the bases of jurisprudence, has referred to the 
law of honour to illustrate the difference of positive law from all law 
not positive ; but in Kome the law of honour, as the law of reli- 
gion in most modern states, was partially taken up into positive 
legislation. The public sentiments of esteem and disesteem, that is 
to say, were armed with political sanctions, and thus certain pro- 
ceedings were discouraged which were not otherwise prohibited by 
positive law, and the due application of these sanctions was the 
function of a special organ appointed by the legislator. This 
organ was the censor, who had both a discretionary power of 
branding a man with ignominy by an annotation against his 
name in the civic register (notatio, subscriptio censoria), and, as 
revisor of the lists of the senate, the knights, and the tribes, 
enforced the disabilities of infamy by removing the infamous 
person from any of those bodies. As the Comitia Centuriata, 
as well as the Comitia Tributa, had in later times been con- 
nected with the division into tribes, the tribeless man (aerarius) 
forfeited his vote and became incapable of military service, Livy, 
7, 2. These graver consequences of infamy were not in the dis- 
cretion of the censor, but governed by strict rules of consue- 
tudinary law (jus moribus introductum). The law of infamia, 
as established by the censor, came to be also recognized by the 
praetor in his edict (cf. Dig. 3, 1, 1, 8 Qui edicto praetoris ut 
infancies notantur), who made infamy not only a consequence 
of condemnation in any criminal trial (publicum judicium), but 
also of condemnation in certain civil actions founded on delict, 
such as theft, rapine, outrage, fraud ; or on certain contracts, such 



I. 159-164.] DE CAPITIS MINVTIONE 97 

as partnership, agency (mandatum), deposit ; or on quasi contract, 
such as guardianship ; or of insolvency (bona possessa, proscripta, 
vendita) ; or, without any judicial condemnation, was annexed to 
certain violations of the marriage laws, such as bigamy or the 
marriage of a widow before the termination of her year of mourning, 
and to the pursuit of certain professions, such as that of stage- 
player or gladiator. In some of these latter instances consuetu- 
dinary law, as above intimated, inflicted positive sanctions on acts 
that originally had only been prohibited by the law of honour. 
In view of these consequences, infamia may at one time have been 
regarded as capitis minutio. Cicero pro Quinctio speaks of a 
suit involving existimatio as a causa capitis (cf. pro Kosc. Com. 6), 
and Tertullian, the father of the Church, who was noted for his 
knowledge of Roman law, and possibly was identical with the jurist 
of that name, of whom five fragments are preserved in the Digest, 
speaks of infamia as capitis minutio, De Spectaculis, 22, Scenicos 
manifesto damnant ignominia et capitis deminutio. But the poli- 
tical rights of civitas had ceased to be of importance under the 
emperors, and we are expressly told in the Digest that only death 
or loss of citizenship can be understood to affect a man's caput, 
Modestinus in Dig. 50, 16, 103. 

Besides extinguishing the political or public elements of civitas, 
infamia affected to a certain extent its private elements, both 
commercium and connubium ; the former, as we shall see, in respect 
of the office of cognitor, 4 124 (cf. Dig. 3, 1, de postulando), and 
the latter in respect of the disabilities of celibacy under the lex 
Julia, which were not removed by marriage with an infamis. Both 
these classes of disability had practically vanished even before they 
were abolished in the time of Justinian. 

This seems the proper place to notice certain inequalities of con- 
dition, analogous to the old distinctions of status, which grew up 
subsequently to the time of Gaius in the later ages of Kome, and 
some of which survived the fall of the Boman empire. From the 
establishment of the empire the army was caressed by each suc- 
ceeding despot, and privileges of various kinds were so accumulated 
on the military service, that the relation of the soldiery to the rest 
of the world very much resembled the ancient relation of Bomanus 
to peregrinus. The pre-eminence of the military caste was the result 
of elevation ; other unprivileged castes were created by depression. 
As the new religion grew to political power, zealous legislators were 
eager to promote its ascendency by the means of political sanctions. 
Pagans, Jews, heretics, apostates, protestants, papists, were suc- 
cessively frowned upon by the legislator, and for a long season 
subjected to incapacities and disabilities as great as, or greater than, 



98 DE PERSONIS [i. 159-164. 

those which weighed upon infames : until by a change in political 
conceptions these inequalities of right have been again levelled and 
almost obliterated in most of the codes of modern Europe. See also 
the remarks on Colonatus, 3 145. 

162. In the category of domestic position there are three classes, 
(i) sui juris, or paterfamilias and materfamilias ; (2) filiusfamilias 
and filiafamilias ; and (3) mancipium : but there are only two possible 
degradations, (i) from sui juris to alieni juris, which occurs in 
adrogation and the in manum conventio of a woman previously 
independent ; and (2) from films- or filiafamilias to mancipium, 
which occurs in noxal surrender, in emancipation, in adoption 
as implying mancipation, and in the remancipation of a woman by 
her husband or the person who held her in manu in virtue of a 
fiduciary coemption. The descent from sui juris to mancipium 
cannot occur, because the only persons capable of passing into the 
condition of mancipium by the process of mancipation were filius- 
and filiafamilias and women in manu, i. e. persons already alieni 
juris. 

In the exposition of capitis minutio, and particularly of the third 
and last kind, I have adopted the theory of Savigny as being the 
most tenable, and forming the most harmonious system of legal 
conceptions. I must now briefly notice an opposing theory, and 
the objections that may be raised against that of Savigny. Some 
expositors hold that capitis minutio minima did not necessarily and 
essentially involve any degradation, any downward step on the 
ladder of status, but might be merely a horizontal movement on the 
same platform, a transit from family to family, a disruption of 
the ties of agnation, a cessation of membership in a given civil 
group. (See on this subject Dr. Moyle's Excursus, Inst. Bk. 1, and 
Professor Goudy's App. to Muirhead's Roman Law, second ed., p. 426, 
where Mommsen's explanation is given.) This opinion is founded 
on the authority of Paulus, undeniably an eminent juris auctor, 
who defines the least diminution of head as follows : Dig. 4, 5, 11. 
' Capital diminution is of three orders, greatest, minor, least ; as 
there are three things that we have, liberty, citizenship, family. 
The universal loss of freedom, citizenship, family, is the greatest 
capital diminution ; loss of citizenship while liberty is retained is 
minor capital diminution ; when liberty and citizenship are retained, 
and family only is changed, there is the least capital diminution.' 
Consistently with this definition Paulus affirms that the children 
of adrogatus suffer capitis minutio minima : Dig. 4, 5, 3 pr. ' The 
children who follow an adrogated parent suffer capital diminution, 
as they are dependent and have changed family ' : here, then, if 
Paulus is right, we have capitis minutio without any degradation, 



I. 159-164.] DE CAPITIS MINVTIONE 99 

any loss of .rank ; for the children of adrogatus have the same 
status of filiifamilias after their father's adrogation as they had 
before, although in a different family. The proposition, however, 
that the children of adrogatus suffer capitis minutio is not confirmed 
by any other jurist, and Savigny supposes that the doctrine was 
peculiar to Paulus, and was in fact inaccurate. Another objection 
to the theory of Savigny, though not so serious as the opposing 
authority of Paulus, is presented by the operation of in manum 
conventio. 

When an independent woman made a coemption she undoubtedly 
declined in status, as before coemption she was sui juris, and after 
coemption she is filiafamilias. But a filiafamilias who made a 
coemption apparently suffered no degradation: the definitive result 
of the coemption leaves her, as before, filiafamilias, and that, 
apparently, without having passed through any lower stage ; for 
Gaius expressly says that the lex mancipii, or formula of mancipa- 
tion in coemption, was not calculated to reduce the woman to a 
servile condition, 123. Gaius tells us, however, that coemption 
operates a capitis minutio, 162, without limiting the effect to the 
case of a woman sui juris. The operation of coemption to produce 
capitis minutio is also mentioned by Ulpian, and again without any 
express limitation to the case of an independent woman: 11, 13. 
' There is least capital diminution when both citizenship and freedom 
are unimpaired, and only position in household life is changed, as 
occurs in adoption and subjection to hand.' If filiafamilias under- 
went capitis minutio when she made a coemption, her case dis- 
proves our theory that all capitis minutio requires degradation : but 
Savigny assumes that, though in these passages there is no express 
limitation to the case of independent women, yet this limitation 
must be understood ; and there is nothing outrageous in this 
supposition. 

While, however, these objections to the hypothesis of Savigny 
are doubtless serious, on the other hand they are compensated by 
legal facts which seem absolutely irreconcilable with the adverse 
hypothesis, the cases of Flamen Dialis and Virgo Vestalis. Gel- 
lius, 1, 12. 'As soon as a vestal virgin is selected and conducted 
to the shrine of Vesta and delivered to the pontifices, she instanta- 
neously, without emancipation and without capital diminution, 
is freed from parental power and acquires testamentary capacity. 
.... Moreover, in the commentary of Labeo on the Twelve Tables 
it is stated that a vestal virgin is neither heiress-at-law to any one 
who dies intestate nor, if she herself die intestate, leaves any heir- 
at-law, and that in this event her property lapses to the state.' 
For Flamen Dialis, see 3 114. If mere transit from a family 

H 2, 



100 DE PERSONIS [i. 159-164. 

and ceasing to belong to a given group of agnates constituted 
capitis minutio, and was its definition, then the vestal virgin must 
inevitably have suffered capitis minutio ; the fact that she did not, 
in spite of leaving her family and snapping the agnatic tie, is at 
once conceivable, on the supposition that there is no capitis minutio 
without degradation. 

Unless capitis minutio minima involved a downward step on the 
stair of status, it has no analogy to the other forms of capitis 
minutio, and it is not obvious why it should have the same generic 
appellation, or why it should be handled in the same department of 
the code. The rupture of the ties of agnation, extinguishing rights 
of intestate succession, might be a loss, but it was not a loss from 
inferiority of privilege ; it was a loss of an equal among equals ; it 
was more like the loss of dos which a husband might incur by 
divorce of his wife, or an heir by neglecting to accept a succession 
within the appointed period (cretio), 2 164 ; neither of which persons 
were said to undergo capitis minutio, because neither of them 
suffered a reduction of the universitas juris called status. 

On the whole, then, Savigny seems justified in considering the 
definition given by Paulus and his statement respecting the children 
of adrogatus as inexact. f*aulus himself, in speaking of emancipa- 
tion, implies the true conditions of capitis minutio : Dig. 4, 5, 3 
Emancipate filio et ceteris personis capitis minutio manifesto accidit, 
cum emancipari nemo possit nisi in imaginariam servilern causam 
deductus ; aliter atque cum servus manumittitur, quia servile caput 
nullum jus habet ideoque nee minui potest. 

Although rupture of the ties, and forfeiture of the rights, or 
release from the duties, of agnation, were not the essence of capitis 
minutio minima, yet they were among its principal consequences. 
The capite minutus lost his claim as suus heres at civil law, that is, 
his right to succeed to an intestate ascendent, or to be instituted 
heir in his will or formally disinherited. These effects of capitis 
minutio were, however, counteracted to some extent by jus prae- 
torium or the legislation of the praetor (bonorum possessio unde 
liberi : and contra tabulas). He also lost his right as legitimus 
heres at civil law, that is, his right to succeed as nearest agnate to 
an intestate collateral ; and here the praetor only so far interposed 
to assist the capite minutus, as, in default of all persons entitled 
as nearest agnates, to call him to the succession in the inferior order 
of cognates (bonorum possessio unde cognati). The collateral civil 
heir was called legitimus heres (statutory heir) because his title was 
founded on the statutes of the Twelve Tables, which, in default of 
self-successors, called the nearest collateral agnates to the succession. 
Subsequent statutes created certain quasi agnates or persons entitled 



I. 164 a-172.] DE LEGITIMA PATRONOKVM TVTELA 101 

to succeed in the same order as if they were agnates, who hence 
were also called legitimi heredes ; e. g. children entitled to succeed to 
an intestate mother under the Sc. Orphitianum, and mothers entitled 
to succeed to intestate children under the Sc. Tertullianum. The 
effect of capitis minutio in extinguishing title to succeed was confined 
to legitimus heres created by the Twelve Tables, and did not extend 
to the legitimus heres created by these subsequent statutes. 

Besides the effects of capitis minutio which followed logically 
from its consisting in a degradation or fall in status, and from its 
involving elimination from a given family or a certain circle of 
agnates, it had certain other abnormal or arbitrary consequences 
consequences, that is, which may have once been explicable on 
known maxims of the civil law, but which are now inexplicable, 
whose rationale had perhaps been lost even in the classical period, 
and is certainly now past conjecture. Such is the rule, that capitis 
minutio minima of an independent person extinguished the debts of 
capite minutus. It is true that the injustice operated by this rule 
of civil law in the case of adrogatio was counteracted by the inter- 
position of the praetor, but, as at civil law filiusfamilias, though 
incapable of rights, was capable of obligations, it is not obvious why 
even at civil law a man's debts should have been cancelled by his 
degradation from the status of paterfamilias to that of filiusfamilias. 
3 84, comm. ; 4 38. 



DE LEGITIMA PATRONORVM TVTELA. 



164 . 

(4 uersus in C legi nequeunt) 
1 urbe I 



(2 uersus in C legi nequeunt) 

1 in urbe Roma 

itaque ut seru est 

1 sunt 1 



(2 uersus in C legi nequeunt) 
ease I simile 1 



165. Ex eadem lege xn 
tabularum liberarum et in- 
puberum libertforum tutela ad 
patronos liberosque eorum per- 
tinet. quae et ipsa tutela legi- 
tima uocatur, ncm quid nomi- 
natim ea lege de hac tutela 
c&uetur, sed quia proinde ac- 
cepta est per interpretationem, 
aque si uerbis legis introducta, 



165. The same statute of the 
Twelve Tables assigns the guar- 
dianship of freedwomen and of 
freedmen below the age of puberty 
to the patron and the patron's 
children, and this guardianship, 
like that of agnates, is called statu- 
tory guardianship, not that it is 
anywhere expressly enacted in the 
Twelve Tables, but because the 



102 



DE PERSONIS 



[i. 164a-172. 



esset. eo enim ipso, quod here- 
ditates libertorum libertarum- 
que, si infestati decessissent, 
iusserat lex ad patronos libe- 
rosue eorum pertinere, credi- 
derunt ueteres uoluisse legem 
etiam tutelas ad eos pertinere, 
quia et agnatos, quos ad here- 
ditatem uocauit, eosdem et tu- 
tores esse iusserat. 

Inst. 1, 17 pr. 



166. Exemplo patronorum 
Tecepk&e (sunt et aliae tutelae, 
quae et ipsae legitimae uo- 
cantur. nam si quis folium 
nepotemue ex filio et deinceps 
inpuberes, autfiliam neptemue 
ex filio et deinceps tarn puberes 
quam inpuberes alteri ea lege 
mancipio dederit, ut sibi re- 
manciparentur, remancipatos- 
que manumiserit, legit imus 
eorum tutor erit.y 

Inst. 1,18. 

1 66 a. [DE FIDYCIABIA TV- 
TELA."] Sunt et aliae tutelae, 
quae fiduciariae uocantur, id 
est quae ideo nobis conpetunt, 
quia liberum caput mancipatum 
nobis uel a parente uel a co- 
emptionatore manumiserimus. 
Inst. 1, 19. 

167. Sed Latinarum et 
Latinorum inpuberum tutela, 
non omni modo ad manumis- 
sores eorum pertinet, sed ad eos 
quorum ante manumissionem 
(ex iure Quiritium fuerunt ; 
unde si ancilla} ex iure Quiri- 
tium tua sit, in bonis mea, a 
me quidem solo, non etiam a te 
manumissa, Latina fieri potest, 
et bona eius ad me pertinent, 
sed eius tutela, tibi conpetit; 



interpretation has procured for it 
as much reception as it would 
have obtained from express enact- 
ment ; for the fact that the statute 
gave the succession of a freedman 
or freedwoman, when they die 
intestate, to the patron and pa- 
tron's children, was deemed by 
the lawyers of the republic (ve- 
teres) a proof that it intended to 
give them the guardianship also, 
because the Tables, when they call 
agnates to succeed to the inheri- 
tance, likewise confer on them 
the guardianship. 

166. The analogy of the pa- 
tron guardian led in its turn to 
the establishment of other guar- 
dianships also called statutory. 
Thus when a person mancipates 
to another, on condition of re- 
mancipation to himself, either a 
son or grandson through a son, 
who are below the age of puberty, 
or a daughter or granddaughter 
through a son of whatever age 
they may be, he becomes their 
statutory guardian when he manu- 
mits them after remancipation. 

166 a. CONCERNING FIDUCIARY 
GUARDIANSHIP. 

But there are other kinds of 
guardianship, called fiduciary, 
which arise when a free person 
has been mancipated by his 
parent or coemptionator to an 
alienee and manumitted by the 
latter. 

167. The guardianship of 
Latins, male or female, below the 
age of puberty, does not neces- 
sarily belong to their manumitter, 
but on whoever before manumis- 
sion was their quiritary owner. 
Accordingly, a female slave be- 
longing to you as quiritary owner, 
to me as bonitary owner, if manu- 
mitted by me without your join- 
ing in the manumission, becomes 
a Latin, and her property be- 
longs to me, but her guardianship 



i. 1640-172.] DE CESSICIA TVTELA 



103 



nam ita lege lunia cauetur; 
itaque si ab eo, cuius et in 
bonis et ex iure Quiritium 
ancilla fuerit, facta sit Latina, 
ad eundem et bona et tutela 
pertinent. 



to you, by the enactment of the 
lex Junia. If the slave is made 
a Latin by one who combines the 
character of bonitary and quiri- 
tary owner, both her effects, and 
the guardianship of her, belong to 
one and the same person. 



DE CESSICIA TVTELA. 



168. Agnatis et patronis 
et liberorum capitum manu- 
missoribus permissum es^ femi- 
narum tutelam alii in jure 
cedere ; pupillorum autem tute- 
lam non est permissum cedere, 
quia non uidetur onerosa, cum 
tempore pubertatis finiatur. 



169. Is autem, cui ceditur 
tutela, cessicius tutor uocatur. 

170. Quo mortuo aut capite 
deminuto reuertitur ad eum 
tutorem tutela qui cessit ; ipse 
quoque qui cessit si mortuus 
aut capite deminutus sit, a ces- 
sicio tutela discedit et reuerti- 
tur ad eum, qui post eum qui 
cesserat secundum gradum in 
ea tutela habueritf. 

171. Sed quantum ad agna- 
tos pertinet, nihil hoc tempore 
de cessicia tutela quaeritur, cum 
agnatorum tutulae in feminis 
lege Claudia sublatae sint. 

172. Sed fiduciaries quo- 
que quidam putauerunt ceden- 
dae tutelae ius non habere, cum 
ipsi se oneri subiecerint. quod 
etsi placeat, in parente tamen, 
qui filiam neptemue aut pro- 
neptem alteri ea lege mancipio 
dedit, ut sibi remanciparetur, 
remancipatamque manumisit, 



168. Statutory guardians, 
whether agnates or patrons, and 
manumitters of free persons, are 
permitted to transfer the guard- 
ianship of a female ward by 
surrender before a magistrate ; 
the guardianship of a male ward 
is not allowed to be transferred, 
because it is not considered 
onerous, being terminated by the 
ward's attaining the age of pu- 
berty. 

169. The surrenderee of a 
guardianship is called a cessionary 
guardian. 

170. On his death or loss of 
status the guardianship reverts to 
the surrenderor, and on the sur- 
renderor's death or loss of status 
it is devested from the cessionary 
and reverts to the person entitled 
after the surrenderor. 



171. As far, however, as ag- 
nates are concerned, in the pre- 
sent day there is no such thing 
as cessionary guardianship, for 
agnatic guardianship over female 
wards was abolished by the lex 
Claudia. 

172. Fiduciary guardians, ac- 
cording to some, are also disabled 
from transferring their guardian- 
ship, having voluntarily under- 
taken the burden ; but although 
this is the better opinion, yet a 
parent who has mancipated a 
daughter, granddaughter, or great- 
granddaughter, with a condition 



104 DE PERSONIS f[. && 173-184. 

1_ i J 

idem dici non debet, cum is et of remancipation to himself, and 
legitimus tutor habeatur, et manumitted her after reman- 
non minus huic quam patronis cipation, should be excepted from 
honor praestandus sit. tne rule > for he is ranked with 

statutory guardians, and has the 
same privilege as the patron 
of a manumitted slave. 

164 a. As in default of agnates the inheritance by the law of the 
Twelve Tables devolved on the gens it may be inferred .by the 
reasoning adopted in 165 that the guardianship passed to it also. 
So it is probable that at the beginning of the lacuna Gaius made 
mention of the statutory guardianship of the Gentiles, and that this 
is the passage on the subject referred to in 3, 17. As to the nature 
of the gens, see Introduction. 

166 a. Cf. 115, 175, 195 a. 

167. It seems anomalous that a Latin, i.e. a non*civis, should 
have been a subject of wardship : for as tutela is an institute of jus 
civile ( 142, comm*, 189), i.e. jus civium, we should have expected 
that, as in the case of patria potestas, both pater and filius must be 
cives Romani, 128, so here both parties, the ward as well as the 
guardian, must of necessity be cives RomanL The anomaly, how- 
ever, was expressly enacted by the lex Junia : which further departed 
from the law of the Twelve Tables by separating the guardianship 
from the right of succession ; for it gave the guardianship to the 
person who before the manumission had been quiritary owner, but 
the right of succession to the person who had previously been 
bonitary owner. Latinus was not only capable of being a ward, 
but also of being a guardian, Fragmenta Vaticana, 193; that is, 
though he was incapable of being a testamentary guardian, 23, 
he could, it would seem, be made a tutor dativus, that is, appointed 
by a magistrate, 185. 

168. In later Eoman law, when the interest of the ward and not 
that of the agnates was principally regarded, . guardianship became 
inalienable. Similarly in English jurisprudence guardianship is 
said not to be capable of assignment or transfer, because it is not 
a right but a duty. 

DE PETENDO ALIO TVTORE. 

173. Praeterea senatus- 173. Moreover, a decree of 
consulto mulieribus permissum the senate permits female wards 
est in absentia tutoris locum to demand a substitute in the 
alium petere ; quo petito prior P lace of an absent guardian, who 
desinit; nee interest quam longe is thus superseded: and the dis- 
absit is tutor tance of his residence from her 

domicil [provided it amounts to 
absence] is immaterial. 



I. 173-184] DE PETENDO ALIO TVTORE 



105 



174. Sed excipitur, ne in 
absentis patroni locum liceat 
libertae tutorem petere. 

175. Patroni autem loco 
habemus etiam parentem, qui 
ex eo, quod ipse sibi .rewan- 
cipatara filiam neptemue aut 
proneptera manumiait, legiti- 
mam tutelam nactus est. (serf) 
huius quidem liberi fiduciarii 
tutoris loco numerantur; pa- 
troni autem liberi eawdem 
tutelam adipiscuntur, quam et 
pater eorum habuit. 

176. Sed aliquando etiam 
in patroni absentis locum per- 
mittitur tutorem petere, ueluti 
ad hereditatem adeundam. 



& 177. Idem senatus censuit 



et in persona pupilli patroni 
filii. 

178. Nam e lege lulia de 
maritandis ordinibus ei, quae 
in legitima tutela pupilli sit$ 
permittitur dotis constituendae 
gratia a praetore urbano tuto- 
rem petere. 

179. Sane patroni filius 
etiamsi inpubes sit, libertae 
efficietur tutor, quamquam in 
nulla re auctor fieri potest, 
cum ipsi nibil permissum sit 
sine tutoris auctoritate agere. 

180. Item si qua in tutela 
legitima furiosi aut muti sit, 
permittitur ei senatusconsulto 
dotis constituendae gratia tuto- 
rem petere. 

181. Quibus casibus sal- 
uam manere tutelam patrono 
patronique filio manifestum est. 



174. But an exception is 
made in favour of an absent 
patron, who cannot be superseded 
on the application of a freed- 
woman. 

175. Eanked with patrons is 
the parent who by mancipation, 
remancipation, and manumission 
of a daughter, granddaughter, or 
great-granddaughter, has become 
her statutory guardian. His sons 
only rank as fiduciary guardians, 
unlike a patron's sons, who suc- 
ceed to the same form of guardian- 
ship as vested in their father. 

1 76. For a special and limited 
purpose the senate permits even 
the place of a patron in his ab- 
sence to be filled by a substitute ; 
for instance, to authorize the 
acceptance of an inheritance. 

177. The senatusconsult gives 
similar permission when a pa- 
tron's son is himself a ward. 

178. For likewise the lex 
Julia, regulating the marriages of 
the various orders, permitted a 
woman whose statutory guardian 
was himself a ward to apply to 
the praetor of the city to appoint 
a guardian for the purpose of 
constituting her dower. 

1 79. For a patron's son even 
before the age of puberty is a 
freedwoman's guardian, although 
unable to authorize any proceed- 
ing, being himself disabled from 
acting without his guardian's 
authorization. 

180. Also a woman whose 
statutory guardian is a lunatic or 
dumb is permitted by the senatus- 
consult, for the purpose of settling 
her dower, to apply for a substitu- 
tive guardian. 

181. In which cases the con- 
tinued guardianship of the patron 
or patron's son is undisputed. 



106 



DE PERSONIS 



[i. 173-184. 



X 



182. Praeterea senatus 
censuit, ut si tutor pupilli 
pupillaeue suspectus a tutela 
remotus sit, siue ex iusta causa 
fuerit excusatus, in locum eius 
alius tutor detur, quo facto 
prior tutor amittit tutelam. 



183. Haec omnia similiter 
et Romae et in prouinciis ob- 
seruantur, scilicet (ut Romae 
a praetorey et in prouinciis a 
praeside prouinciae tutor peti 
debeat. 

184. Olim cum legis ac- 
tiones in usu erant, etiam ex 
ilia causa tutor dabatur, si 
inter tutorem et mulierem pu- 
pillunme lege agendum erat ; 
nam quia ipse tutor in re sua 
auctor esse non poterat, alius 
dabatur, quo auctore legis 
actio perageretur ; qui dice- 
batur praetorius tutor, quia a 
praetore urbano da&atur. sed 
post sublatas legis actiones 
quidam putant bane speciem 
dandi tutoris in usu esse de- 
siisse, aliis autem placet adtmq 
in usu esse, si legitimo iudicio 
a^atur. 

Ulp. 11, 24; Inst. 1,21,3. 



182. The senate further de- 
creed that if the guardian of a 
male or female ward is suspected 
of misconduct and removed from 
office, or if he alleges valid grounds 
for declining to act and is relieved 
of his functions, a substitute shall 
be appointed by the magistrate, 
and on his appointment the office 
of the former guardian shall deter- 
mine, 

183. These rules are in force 
both in Rome and in the pro- 
vinces, but in Rome application 
foj* the appointment of a tutor 
must be made to the praetor ; in 
the provinces, to the governor of 
the province. 

184. During the era of litiga- 
tion by statute-process [4 10], 
another cause of appointing a 
substitute was the imminence of 
statute-process between the guar- 
dian and the woman or ward ; 
for as the guardian could not give 
his authority in respect of his own 
suit, another guardian was ap- 
pointed to authorize the proceed- 
ings in the action, who was called 
a praetorian guardian, because he 
was appointed by the praetor of 
the city. But some hold that 
since the abolition of statute-pro- 
cess this mode of appointing a 
guardian ceased to be used, others 
maintain that it is still the prac- 
tice on the occasion of a statutory 
suit (4 103). 

name ajid date of this senatus- 



173. Of. Ulp. 11, 22. The 
consultum cannot be ascertained. 

178. Gaius, as already stated, wrote a special treatise or com- 
mentary on this important law relating to marriage. 

1 79. The law was changed by Justinian, who enacted that no 
one could become guardian who had not attained his majority, 
i.e. completed twenty-five years of age, Inst. 1, 25, 13 ; Cod. 5, 30, 5. 
The fact of not having attained this age had previously been ground 
of excuse. 

182. Cf. Inst. Just. 1, 26. The actio suspecti tutoris for the 
removal of the guardian from his office could be maintained by any 



i.185-188.] DE ATILIANOTVTOREETIVLIOTITIANO 107 

person in the interest of the ward. If removed on account of 
fraud the guardian was infamis, but not so if it was simply for 
negligence. 

183. The ambiguity of the Latin language leaves it doubtful 
whether in the foregoing paragraphs, 173, 176, 180, 182, Gaius 
refers to one or several senatusconsults. From Dig. 26, 1, 17, how- 
ever, it appears that, complura senatusconsulta facta sunt ut in 
locum furiosi et muti et surdi tutoris alii tutores dentur: i.e. the 
subject often occupied the attention of the senate. The reason was 
that the lex Atilia, presently mentioned, had received, after the 
wont of the ancient jurists, a strictly literal interpretation, and was 
not deemed to authorize the substitution of a guardian when the 
existing guardian was incapacitated. 



DE ATILIANO TVTOEE, ET EO QYI EX LEGE IVUA ET TITIA DATVR. 



185. Si cui nullus omnino 
tutor sit, ei datur in urbe 
Roma ex lege Atilia a prae- 
tore urbano et inaiore parte 
tribunorum plebis, qui Atilia- 
mis tutor uocatur ; in pro- 
uinciis uero a praesidibus pro- 
uinciarum (ex} lege lulia et 
Titia. Inst. 1, 20 pr. 

186. Et ideo si cui testa- 
mento tutor sub condicione aut 
ex die certo datus sit, quamdiu 
condicio aut dies pendet, tutor 
dari potest ; item si pure datus 
fuerit, quamdiu nemo heres 
existat, tamdiu ex his legibus 
tutor petendus est ; qui desini 
tutor esse, posteaquam aliquis 
ex testamento tutor esse coe- 
perit. Inst. 1, 20, 1. 



187. Ab hostibus quoque 
tutore capto ex his legibus 
tutor peti debet; qui desinit 
tutor esse, si is qui captus est 
in ciuitatem reuersus fuerit : 



185. Failing every other form 
of g^rdian, at Rome a guardian 
is appointed under the lex Atilia 
by the praetor of the city and the 
major part of the tribunes of the 
people, called an Atilian guardian: 
in the provinces, a guardian is 
appointed by the president of the 
province under the lex Julia and 
Titia. 

186. Accordingly, on the ap- 
pointment of a testamentary guar- 
dian subject to a condition, or on 
an appointment which is not to 
commence till after a certain time, 
during the pendency of the con- 
dition and before the time has 
come, a substitute is appointed 
by these magistrates ; also, when 
the appointment of a testamentary 
guardian is not subject to a con- 
dition, so long as no heir has 
entered under the will, a tempo- 
rary guardian may be obtained 
under those statutes, whose office 
will determine as soon as the 
guardian becomes entitled under 
the will. 

1 87. On the hostile capture of 
a guardian the same statutes regu- 
late the appointment of a substi- 
tute to continue in office until the 
return of the captive ; for if the 



108 



DE PERSONIS 



[i. 189-193. 



nam reuersus recipit tutelam 
iure postliminii. Inst. 1, 20, 2. 

188. Ex his apparet, quot 
sint species utelarum. si uero 
quaeramus in quot genera hae 
species d^ducantur, longa erit 
disputatio ; nam de ea re ualde 
ueteres dubitauerunt, nosque 
diligentius hunc tractatum 
executi sumus et in edicti 
interpretatione et in his libris 
quos ex Q. Mucio fechnus. hoc 
antisper sufficit admonuisse, 
quod quidam quinque genera 
esse dixerunt, ut Q. Mucius ; 
alii tria, ut Ser. Sulpicius ; alii 
duo, ut Labeo ; alii tot genera 
esse crediderunt, quot etiam 
species essent. 



captive returns he recovers the 
guardianship in virtue of his re- 
habilitation. 

188. The foregoing statement 
shows the various forms of guar- 
dian : the question of the number 
of orders to which these forms 
may be reduced involves a long 
discussion, for it is a point on 
which the ancient jurists differed 
greatly ; and as I have examined 
it at length, both in my interpre- 
tation of the edict and in my 
commentary on Quintus Mucius, 
for the present occasion it may 
suffice to observe that some, as 
Quintus Mucius, make five orders ; 
others, as Servius Sulpicius, three ; 
others, as Labeo, two ; others make 
as many orders as there are forms 
of guardian. 



188. In the time of Justinian there were three forms of guardian, 
testamentary, or appointed by will ; statutory, or prescribed by 
the law in case of intestacy ; and magisterial (dativus), or appointed 
by the magistrate, in default of a testamentary or statutory guardian. 
The other forms of guardian had become obsolete, except a kind of 
fiduciary one, Inst. 1 , 1 9, in consequence of the change in legislation. 

For an account of Q. Mucius Scaevola (Consul B.C. 95) and 
Servius Sulpicius Kufus (Consul B.C. 51), who maybe regarded as 
the fathers of Roman jurisprudence, see Roby, Intr. to Justinian's 
Digest, pp. cvi and cxi. 



DE MVLIERVM TVTELA. 



189. Sed inpuberes quidem 
in tutela esse omnium ciuita- 
tium iure contingit, quia id 
naturali rations conueniens est, 
ut is qui perfectae aetatis non 
sit, alterius tutela regatur. nee 
fere ulla ciuitas est, in qua non 
licet parentibus liberis suis in- 
puberibus testamento tutorem 
dare ; quamuis, ut supra dixi- 
mus, soli ciues Romani uidean- 
tur liberos suos in potestate 
habere. Inst. 1,20, 6. 



189. The wardship of children 
under the age of puberty is part 
of the law of every state, for it 
is a dictate of natural reason that 
persons of immature years should 
be under the guardianship of 
another, in fact there is scarcely 
any state which does not permit a 
parent to nominate a testamentary 
guardian for his children under 
the age of puberty, though, as we 
have before stated, only citizens 
of Rome appear to be invested 
with parental power. 



i. 189-193.] DE MVLIERVM TVTELA 



109 



190. Feminas uero perfe- 
ctae aetatis in tutela esse fere 
nulla pretiosa ratio suasisse 
uidetur ; nam quae uulgo credi- 
tur, quia leuitate animi plerum- 
que deeipiuntitr et aequum 
erat eas tutorum auctoritate 
regi, magis speciosa uidetur 
quara uera ; mulieres enim, 
quae perfectae aetatis sunt, 
ipsae sibi negotia tractant et in 
quibusdam causis dicis gratia 
tutor interponit Auctoritatem 
suam,8aepeetiam inuitus auctor 
fieri a praetore cogitur. 

191. Unde cum tutore 
nullum ex tutela iudicium mu- 
lieri datur ; at ubi pupillorum 
pupillarumue negotia tutores 
tractant, ei post pubertatem 
tutelae iudicio rationem red- 
dunt. 



192. Sane patronorum et 
parentum legitimae tutelae uim 
aliquam habere intelleguntur 
eo, quod hi neque ad testamen- 
tum faciendum neque ad res 
mancipi alienandas neque ad 
obligationes suscipiendas au- 
ctores fieri coguntur, praeter- 
quam si magna causa alienan- 
darum rerum mancipi obliga- 
tionisque suscipiendae inter- 
ueniat ; eaque omnia ipsorum 
causa constituta sunt, ut, quia 
ad eos intestfatarum mortuarum 
hereditates pertinent, neque per 
testamentum excludantur ab 
hereditate neque alienatis pr<?- 
tiosioribus rebus susceptoque 
acre alieno minus locuples ad 
eos hereditas perneni&t. 

193. Apud peregrines non 
similiter ut apud nos in tutela 
aunt feminae; sed tamen ple- 



1 90. But why women of full 
age should continue in wardship 
there appears to be no valid reason ; 
for the common allegation, that on 
account of levity of dispositi on they 
are readily deceived, and that it 
is therefore right that they should 
be controlled by the sanctionary 
power of a guardian, seems rather 
specious than true, for women of 
full age administer their own pro- 
perty, and it is a mere formality 
that in some transactions their 
guardian interposes his sanction ; 
and in these cases he is frequently 
compelled against his own will 
to give his sanction. 

191. Accordingly, a woman 
has not the tutelary action against 
her guardian ; whereas since the 
guardians of youthful wards, both 
male and female, administer their 
wards' property, they are liable 
to be sued on account of such ad- 
ministration when the ward has 
come to the age of puberty. 

192. The statutory guardian- 
ship of patrons and parents is not 
purely ineffective, as they cannot 
be compelled to give their sanction 
to a will or to the alienation of 
mancipable property, or to the 
undertaking of obligations, unless 
there are very weighty reasons for 
the obligation or the alienation ; 
but this rule is in their own 
interest as heirs of intestacy, and 
is designed to prevent their loss 
of the estate by testamentary 
disposition, or the diminution of 
its value by debt or by alienation 
of a considerable portion. 



193. In other countries, though 
not under the same tutelage as 
at Eome, women are generally 



110 DE PERSONIS [i. 189-193. 

rumque quasi in tutela sunt ; subject to a quasi tutelage : for 

ut ecce lex Bithynorum, si quid instance, the law of Bithynia 

mulier contrah&t, maritum au- requires the contract of a woman 

ctorem esse iubet aut filium * be sanctioned by her husband 

eius puberem. or b J a son above tne a S e of 

puberty. 

As women were capable of administration, the functions of the 
guardian, which in the case of infants were either administrative 
or sanctionative, in the case of women were confined to sanctioning. 
Pupillorum pupillarumque tutores et negotia gerunt et auctoritatem 
interponunt : mulierum autem tutores auctoritatem dumtaxat inter- 
ponunt, Ulp. 11, 25. It is transparent that the wardship of women 
after full age was not designed to protect their own interests, but 
those of their heirs apparent, their agnates. Originally the autho- 
rization of the guardian was not sufficient to validate the will of an 
independent woman : it was necessary that she should first break 
the ties of agnation, and separate from her family by means of a 
coemption (with her guardian's sanction) and subsequent reman- 
cipation and manumission. She then, with the sanction of the 
manumissor, in his character of fiduciary guardian, could make 
a valid will. In the time of Gaius, Hadrian having abolished 
the necessity of coemption, to make a valid will an independent 
woman only required the sanction of her guardian, 2 112, and 
Claudius, as we have seen, had put an end to agnatic guardianship, 
171. 

When a woman was liberated from the administrative control of 
her guardian, and the guardian had no longer any interest in the 
succession to her property, the simplest course would have been to 
declare her dispositions valid without his sanction to declare her 
no longer a ward. But with characteristic conservatism of forms, 
Roman law, to avoid the open change, declared the auctoritas still 
necessary, but made it compulsory instead of voluntary gave the 
ward a power of extorting it from the guardian, 2 80-85. So 
the act whereby a testamentary heir accepts an inheritance was 
originally absolutely voluntary : but when trusts (fidei commissa) 
were introduced, and the heir as trustee or fiduciarius by ground- 
lessly refusing to make the necessary aditio, which in this case was 
the merest form, could produce intestacy, and thus deprive the 
beneficiary, fidecommissarius, or cestui que trust of the provision 
destined for him by the bounty of the testator : instead of declaring 
the aditio of the heres unnecessary to the acquisition of the fortune 
by fideicommissarius ; or that in such a case the beneficiary should 
be deemed to be a direct substitutus of the heres ; or that the 
vexatious refusal of the heres should be deemed to be an aditio and 



I. 189-193.] DE MVLIERVM TVTELA 111 

restitutio ; the legislator ordained that the heres should be com- 
pelled to make aditio in order to complete the title, 2 258, comm. 
Again, the terms of the security given by the guardian (rem pupilli 
salvam fore) against dilapidation of the estate of the ward made the 
responsibility of the guardian depend on his actual administration ; 
so that he was not responsible if the estate went to ruin in con- 
sequence of his total abstention from the performance of his duties. 
To protect the ward against this contingency, instead of altering the 
formula of the satisdatio, and making the liability of the guardian 
depend on his appointment and not on his acting ; the law com- 
pelled him to proceed to some act of guardianship, in order to bring 
him under the unchanged terms of his security ; Dig. 46, 6, 4, 3. 
In all these and other cases a compulsory act was substituted for 
a voluntary act for the sake of giving the law an outward appearance 
of continuity. At last, at some period before the epoch of Justinian, 
the tutelage of women above the age of puberty had ceased in form 
as well as in substance, and no sanction of a guardian, whether 
voluntary or compulsory, was required. 

It is to be observed, that as women were gradually enfranchised 
from their disabilities, they also forfeited some of their original 
privileges. It was a rule of the administration of justice that 
while error of fact might be pleaded to defend a person against the 
consequences of his own acts or omissions, no one should be allowed 
to allege an error of law, Dig. 22, 6, 9 pr. An exception however 
was made in favour of minors, of soldiers, of the utterly uneducated 
(rustici), and of women. Against their ignorance of rules of law, 
particularly those rules of jus civile which are not, like rules of 
jus gentium or natural e, the almost self-evident dictates of reason 
and common sense, they were relieved by a branch of the praetor's 
extraordinary jurisdiction, called in integrum restitutio, a power of 
cancellation and rescission, in cases of manifest, collision between 
law and equity ; 197-200, comm. This privilege of women 
was partially abrogated by a constitution of the Emperor Leo, 
A. D. 472; Cod. 1, 18, 13. 'To prevent the indiscriminate revo- 
cation by women of all their contracts on the ground of omission 
of error, be it enacted, that ignorance of law, whereby a woman 
is damnified in her right or property, shall only be a title to 
relief in those cases where previous statutes have sanctioned such 
relief.' 

From 189 it might appear that Gaius referred the institution 
of guardianship to the code of jus gentium. We have, however, 
quoted from the Institutes, 142, 154, comm., a passage which 
ascribes it to jus civile : and, indeed, no institution confined in its 
operation almost entirely to cives, can be supposed to belong to 



112 DE PEESONIS [t. 194-196. 

ju's gentium or natural law. Moreover, the law of guardianship 
has been most variable, not only if we look to different countries, 
but also if we look at different periods in the same country ; 
and the praetor or chancellor or other authority that has had the 
supervision of guardians has always exercised a great latitude of 
discretion ; features which again forbid us to ascribe the rules of 
wardship to any comparatively immutable code of nature. Tutela 
was in fact an old Roman institution, by which the gens or familia 
maintained control in its own interest over its weaker members, 
who were not subject to patria potestas. It is possible that this 
control was at first exclusively exercised by the gens, in whom the 
ownership of all land occupied by the gentiles may have been vested, 
and that agnatic as well as testamentary guardianship was first 
instituted by the law of the Twelve Tables, whereby patricians and 
plebeians were put on an equality in respect of private rights. That 
the gens was in the habit of taking charge in some way of lunatics 
and insane persons we know from the words of the Twelve Tables, 
which have come down to us 'Si furiogus exit, ast ei custos ne 
exit, adgnatum gentiliumque in eo pecuniaque eius potestas est.' 
Cf. Muirhead, Eoman Law, 26, 28, 

QVIBVS MODIS TYTELA FINIATVK. 

194. Tutela autem libe- 194. Guardianship is termin- 

rantur ingenuae quidem trium ated for a freeborn woman by title 

(liberorum iure libertinae of being mother of three children, 

uero quattuor, si in patroni} for a freedwoman if under statu- 

liberorumue eius legitima tu- toi T guardianship of her patron 

tela sint; nam ceterae quae or his children by being mother 

alterius generis tutores habent, J. fol " ph^n: those who have 

r i j. A A-T j i other kinds oi guardians, Atihan 

[uelut Atilianos aut fiduciaries ] or fid for instance/are libe- 

trmm liberorum rare tutela rated from > wardship by being 

liberantur. mothers of three children. 

195. Pofest autem pluri- !9 5 - There are various ways 

bus modis libertina alterius by which a freedwoman may have 

generis (tutorem} habere, ue- other kin _ ds of g^rdians : for 

luti si a femina manumissa sit ; m ? ta . nce _ m case of ^\ man . u - 

i A4-T ,-v 4- * mission by a woman, when she 
tune enim e Leqe Atilia petere J , ,. ' , ,, 

, , , must request a guardian under the 

debet tutorem uel m pro- ^ M ^ ^ the ovin 

umc<m e lege JZ)ia et Titia ; under the lex Julia and Titia> 

nam in patronae tutela esse gince a female patron cannot be 

non potest. her guardian. 

195 a. Item si <a> mas- 195 a. Also on manumission 

culo manumissa {fuerit} et by a male, if with his sanction 

auctore eo coemptionem fecerit, she makes a coemption, and then 

deinde remancipata et manu- is remancipated and manumitted, 



I. 194-196.] QVIBVS MODIS TVTELA FINIATVR 113 



missa sit, patronum quidem 
habere tutorein desinit, incipit 
autem habere eum tutorem a 
quo manumissa est, qui fidu- 
ciarius dicitur. 

195 6. Item si patronus 
eiusue filius in adoptionem se 
dedit, debet liberta e lege Atilia 
ud lulia et Titia tutorem pe- 
tere. 

195 c. Similiter ex isdem 
legibus petere debet tutorem 
libert&, si patronus decesserit 
nee ullum uirilis sexus libero- 
rum in familia reliquerii. 

196. Masculi autem cum 
puberes esse coepermt, tutela 
liberantur. puberem autem 
Sabinus quidem et Cassius ce- 
terique nostri praeceptores eum 
esse putan, qui habitu corporis 
pubertatem ostendit, id est eum 
qui generare potest ; sed in his 
qui pubescere non possunt, 
quales sunt spadones, earn 
aetatem esse spectandam, cuius 
aetatis puberes fiunt ; sed di- 
uersae scholae auctores annis 
putant pubertatem aestiman- 
dam, id est eum puberem esse 
existimant qui xini annos ex- 
pleuit. 1 Inst. 1, 22 pr. 



for the patron then ceases to be 
guardian, and is replaced by the 
second manumitter, who is called 
a fiduciary guardian. 

1956. Also on the adrogation 
of her patron or his son she must 
demand a guardian under the lex 
Atilia or Titia. 

195 c. Similarly in compli- 
ance with the same laws she must 
demand a guardian on the decease 
of her patron without leaving any 
male descendant in the family. 

196. For males the attain- 
ment of the age of puberty is a 
release from wardship. Puberty, 
according to Sabinus and Cassius 
and the other authorities of my 
school, depends on physical de- 
velopment, that is, on capacity of 
generation ; or in case of im- 
potence, eunuchs for instance, on 
the completion of the age which 
usually implies capacity of gene- 
ration. The other school hold 
that puberty is to be exclusively 
measured by age, that is to say, 
that it should always be deemed 
to be attained on the completion 
by a male of his fourteenth year. 



196. All jurists agreed that in the case of impotence, whether 
natural or acquired, some fixed date must be assumed as the conven- 
tional period of puberty. The Sabinian rule appears to be preserved 
in a passage of Paulus : Spadones eo tempore testamentum facere pos- 
sunt quo plerique pubescunt, id est, anno decimo octavo, 3, 4 a, 2. 
Fourteen was assumed to be the average age of puberty ; but it 
was too early, even in the southern climes subject to Eoman legis- 
lation, for a minority of constitutions which advance more slowly 
to maturity. Eighteen was supposed to be sufficiently postponed 
to include most of these cases of retarded development. We have 
already, in treating of adrogation, 106, commentary, met with 
the phrase, plena pubertas, denoting eighteen years of age. 



114 



DE PEKSONIS 



[i. 197-200. 



DE CVKATORIBVS. 



(25 uersus in C legi nequeunt) 

197. aetatem per- 

uenerit, in qua res suas tueri 
possit ; sicut apud peregrinas 
gentes custodiri superius in- 
dicauimus. Inst. 1, 2, 3. 

198. Ex isdem causis et 
in prouinciis a praesidibus 
earum curatores dari solent. 

Inst. 1. c. 



197. After release from tute- 
lary guardianship the estate of a 
minor is managed by a curator 
Until he reaches the age at which 
he is competent to attend to his 
own affairs, and the same rule 
obtains in other nations, as we 
have already mentioned. 

198. Under similar circum- 
stances the president of a province 
appoints a curator. 



DE SATISDATIONE TVTOKVM VEL CVRATORVM. 



199. Ne tarn en et pupil- 
lorum et eorum qui in curatione 
sunt negotia a tutoribus cura- 
toribusque consumantur aut 
deininuantur, curat praetor, ut 
et tu tores ~(ety curatores eo 
nomine satisdent. 

Inst. 1,24 pr. 

200. Sed hoc non est per- 
petuum ; nam et tutores testa- 
vnento dati satisdare non co- 
guntur, quia fides eorum et 
diligentia ab ipso testatore pro- 
bata est ; et curatores, ad quos 
no% e lege curatio pertinet, 
sed (qui) uel a consule uel a 
praeside prouinciae dantnr, 
plerumque non coguntur satis- 
dare, scilicet quia satis honesti 
electi sunt. Inst. 1. c. 



1 99. To protect tutelary wards 
and those having a curator from 
the destruction or waste of their 
property by their guardians and 
curators, it is the function of the 
praetor to require such guardians 
and curators to give security for 
due administration. 

200. But this is not without 
exception, for testamentary guar- 
dians are not compelled to give 
security, as their integrity and 
vigilance have been approved by 
the testator ; and curators who 
have not been appointed by any 
statute, but by the nomination of 
a consul or praetor or president 
of a province, are generally not 
required to give security, their 
selection being deemed sufficient 
evidence of their trustworthiness. 



197. In English jurisprudence there is no distinction corre- 
sponding to that between tutor and curator, impubes (pupillus) and 
minor (adolescens). Infant and minor are in English synonymous ; 
guardianship continues to the attainment of majority, i.e. to the 
completion of twenty-one years of age ; and after that the young of 
both sexes are considered to be capable of taking care of themselves, 
and are free from further control. At Eome wardship (tutela) ceased 
at puberty, or, as the law came to be denned, at the age of fourteen 



I. 197-200.] DE CVRATORIBVS 115 

for males and twelve for females, ages at which the young manifestly 
continue to stand in need of guidance and protection, though 
according to Eoman law they were then fully competent to administer 
their own property, and to dispose of it by will. 

Such protection was provided for them partly by two statutes, 
partly by praetorian legislation, (i) The lex Plaetoria, or Laetoria, 
was as old as Plautus, who about 186 B.C. makes a youth exclaim: 
Lex me perdit quinavicenaria ; metuunt credere omnes, Pseudolus, 
303. 'The statute with its five and twenty years prevents my 
getting credit.' It made a criminal offence, and subject to a criminal 
prosecution (judicium publicum, Cic. de Nat. Deor. 3, 30), what 
Cicero calls circumscriptio adolescentium, De Off. 3, 1 5 ; i. e. over- 
reaching and circumventing persons below the age of twenty-five. 
Such is Savigny's interpretation of judicium publicum, Vermischte 
Schriften, 18. Ihering maintains that judicium publicum denotes 
in this passage not a criminal prosecution but an actio popularis ; 
i.e. a civil action that could be instituted not only by the Minor but 
by a common Informer: and he quotes Dig. 26, 10, 1, 6 (cf. Inst. 
1, 26, 3) Consequens est ut videamus qui possunt suspectos (tutores) 
postulare, et sciendum est quasi publicam esse hanc actionem, hoc est. 
omnibus patere. Dig. 12, 2, 30, 3, where quasi publica actio means an 
action similar to actio popularis, Geist des Komischen Kechts, 52, 
nn. 158, 159. The circumscription of a minor, like fraudulent mal- 
administration by a guardian, rendered the person convicted thereof 
infamis. A contractor with a minor might secure himself against 
the penalties of the law, if a curator were nominated by the praetor 
to advise the minor in respect of the special transaction. 

(2) As the lex Plaetoria was only applicable in cases of fraud 
(dolus malus, Cic. de Off. 3, 15), the protection it gave to minors 
was inadequate : accordingly, the praetor, besides allowing a minor 
to set up the plea of minority when sued in an action, proclaimed 
in his edict that he would relieve minors who had been damaged 
in consequence of inexperience and improvidence by rescission and 
cancellation of the proceeding (in integrum restitutio). To obtain 
this relief it was not necessary to prove any fraud on the part of 
the person who contracted with the minor. 

(3) A person who wished to bring an action against a minor 
could compel him to obtain from the praetor a curator for the 
purpose of defending the particular suit ; whose office ceased as 
soon as the special litigation terminated. Marcus Aurelius, under 
whom Gaius flourished, enacted that any minor who chose should 
be able to obtain from the praetor a general curator (generalis 
curator), who then should be charged with the general adminis- 
tration (generalis administratio) of his estate, Capitolinus, 10. In 

I 2 



116 DE PERSONIS [r. 197-200. 

view of this option of the minor, Justinian could still say: Inviti 
adolescentes curatores non accipiunt praeterquam ad liteni, Inst. 
1, 23, 2. 'Unless they choose, minors need not have a curator, 
except for a suit.' A minor who had a curator could not aliene 
without the consent of his curator: he could incur an obligation 
without the consent of his curator, subject to his right of in 
integrum restitutio, though, unless he had a curator, persons would 
not be very willing to contract with him. Even the existence of 
a curator did not deprive the minor of his right of restitution, but 
of course it could not be obtained so readily as when he acted 
without the advice of a curator. The praetor allowed actiones 
utiles against a curator, corresponding to those to which a tutor 
was subject. 

The tutor and curator were entirely separate functionaries : when 
women were under perpetual tutelage, a woman might have both 
a tutor and a curator. The curator of a minor must be dis- 
tinguished from an agent (procurator), a person invested with 
certain rights and duties, which will be explained when we examine 
the different kinds of contract. An agent is governed by the in- 
structions (mandatum) of his principal : a minor is under the direc- 
tion of his curator : the employment of an agent is a private matter, 
purely voluntary on the part of the principal ; the curator, like the 
tutor, holds a public function, and having one is in some cases 
involuntary on the part of the minor. 

How exactly the lacuna in 197 should be filled up is doubtful. 
We do not know what is the previous passage referred to. 

Besides minors, lunatics and prodigals of whatever age were 
committed to the charge of curators. The cura of lunatics and 
prodigals is, indeed, older than that of minors, being regulated by 
the Twelve Tables, which directed that the nearest agnate should 
be curator of a lunatic, and manage the estate of an interdicted 
prodigal. In later times it was usual for the praetor or praeses pro- 
vinciae to appoint a curator after inquest (ex inquisitione). Paulus 
has preserved the form of words in which the prodigal was inter- 
dicted : 3, 4 a, 7. ' By custom the praetor interdicts a prodigal 
from the administration of his property in the following terms : As 
thy profligacy is wasting the estate of thy father and ancestors, 
and bringing thy children to destitution, I therefore interdict thee 
from the control of thy patrimony, and from all disposition of 
property.' 

In integrum restitutio, a branch of the praetor's equitable juris- 
diction, and one of the most remarkable cases of his cognitio extra- 
ordinaria, has been mentioned more than once, and deserves here 
a brief explanation. Kestituere in a general sense denotes any 



I. 197-200.] IN INTEGRVM RESTITVTIO 117 

undoing of a wrong, any replacement of a person or his right in 
his or its original condition, whether by the voluntary act of the 
wrongdoer, or after action brought, and then either at the invitation 
of the judge (in virtue of the clause, ni restituat, 4 47), or in 
execution of a judicial sentence. But in the phrase we are exam- 
ining it denotes the act, not of a private party, but of a magisterial 
authority. In integrum restitutio is the restitution by the praetor 
of a person to his original legal condition, in cases when some injury 
has been done to him by operation of law. The interposition in such 
cases of the highest Roman minister of justice bears some analogy 
to the use made of the prerogative of the Crown in our own early legal 
history. The function of thus overruling the law where it collided 
with equity was only confided to the highest magisterial authority, 
and even in his hands was governed by the principle that he was only 
supposed to act in a ministerial, not in a legislative capacity. Five 
grounds or titles (justae causae) to extraordinary relief (extraordi- 
narium auxilium) were recognized and enumerated in the edict, 
Dig. 4, 1 : intimidation (metus), fraud (dolus malus), absence, error, 
minority (aetatis infirmitas). Two, however, of these titles, fraud 
and intimidation, had additional remedies in the ordinary course 
of procedure (ordo judiciorum), where they were recognized as 
grounds of exception and personal action. Thus we find that a 
praetor called Octavius introduced the actio and exceptio metus 
mentioned by Cicero, Verr. 2, 3, 65, where the actio metus is called 
Formula Octaviana, and that the famous Aquilius Gallus, the 
colleague of Cicero, introduced the exceptio and the actio doli, Cic. 
de Natura Deorum, 3, 30. 

The chronological order of the remedy by Action and the remedy 
by Restitution, like that of the historical relation of interdict to 
action, is disputed. Savigny, 112, 191, 199, holds that the remedy 
by Restitution was older than the remedy by Action ; while Vangerow, 
185, holds that the remedy by Action was older than the remedy 
by Restitution. As remedies they were very different in character, 
the effect of a grant of restitution being simply to reinstate a person 
in a legal right, which he had lost, not to give him damages on 
account of the violation of a right. 

There are three conditions of Restitution: (i) The first condition 
is a Laesion by the operation of law, i. e. a disadvantageous change 
in civil rights or obligations brought about by some omission 
or disposition of the person who claims relief. This disadvantage 
may either consist in positive loss of acquired property, or in missing 
a gain which would not have involved, on the part of another, 
a positive loss of acquired property. An instance of such a laesion 
would be the loss of property by omitting to interrupt a usucapio 



118 DE PERSONIS [i. 197-200. 

or by omitting to claim an inheritance, or by making some omission 
in procedure. Cf. 4 57. 

(2) A second condition is some special or abnormal position of the 
person who claims relief when such special circumstance is the 
cause of the loss which he has suffered. Thus a minor may be 
relieved against an injudicious bargain, but not against the casual 
destruction of the thing he has purchased, for this loss was not 
occasioned by his minority or inexperience. Such abnormal 
positions (justae causae) are compulsion, fraud, minority, absence, 
error. 

(3) A third condition of relief is the absence of various disen- 
titling circumstances. Thus relief is granted against the effect 
of legal dispositions and omissions, but not against the effect of 
delicts. Again the extraordinary relief of in integrum restitutio 
is not granted when the courts of law can administer an adequate 
remedy. 

Originally capitis minutio of a defendant was ground for a resti- 
tution, 3 84 ; but this ceased at an early period to be anything more 
than a formal case of restitution ; for rescission of the adrogation, 
adoption, emancipation, whereby a person's debts were extinguished, 
was granted as a matter of course without any previous investiga- 
tion (causae cognitio), and without any period of prescription like that 
which limited the right to pray for restitution. 

This was, originally, annus utilis, and in the time of Justinian, 
quadriennium continuum or four calendar years, which begin to run, 
not from the date of the Laesion, but from the termination of the 
Causa, i. e. the abnormal position minority, absence, compulsion, 
deception, error whereby the Laesion was occasioned. Such at 
least is Savigny's and Windscheid's opinion. Vangerow holds that, 
except in Minority and Absence, prescription begins to run from the 
date of Laesion, 4 110-113, comm. 

Of the five titles to restitution that we have enumerated, four, 
namely, intimidation, fraud, absence, error, implying equality of 
rights in all parties, belong to the law of Things or actions ; title by 
minority, implying a privileged class or inequality of rights, belongs 
to the law of Persons. 

As we shall have occasion in the next book, 1-14, comm., to 
use the expression Rerum universitas, it may seem appropriate, 
before we quit the law of Persons, to give some explanation of the 
contrasted term, Personarum universitas. A University of persons 
in the private code is a fictitious or juristic person, composed 
generally by the union of a number of individuals, and capable like 
a natural individual (singularis persona) of the various rights and 
duties of property, that is to say, of potestas, patronatus, dominium, 



I. 197-200.] PERSON ARVM VNIVERSITAS 119 

servitus, obligatio ; and the power of suing and being sued (cf. 
Sohm, 37, 38). 

Some Universities have a visible existence or representation in 
a number of individual members, and are then called Corporations. 
An essential incident of Corporations is that their rights are not 
vested in the aggregate of individuals, but in the ideal whole, regarded 
as distinct from the members of which it is composed. Examples of 
such Corporations are municipalities (civitas, municipium, respublica, 
communitas), colleges of priests, of Vestal Virgins, corporations of 
subordinate officials, e. g. lictors, notaries (scribae, decuriae), industrial 
guilds, e. g. smiths, bakers, potters, shipowners, mining companies 
(aurifodinarum, argentifodinarum, salinarum, societas), contractors 
for the revenue (vectigalium publicorum societas), social clubs (soda- 
litates, sodalitia), friendly societies (tenuiorum collegia) (cf. Mommsen, 
de Collegiis et sodaliciis Komanorum ; Karlowa, Eom. Eechtsg. 2 2). 

Other juristic persons, not so visibly embodied in any natural 
individuals, e. g. temples, churches, hospitals, almshouses, or any 
other beneficent aims personified, are called by civilians, not Cor- 
porations, but Foundations. 

The state, though not strictly speaking a juristic person, as invested 
with rights of property, was called in the time of the republic 
Aerarium. Under the first emperors, when the public treasure 
was divided between the emperor and the senate, the senate, as 
in a proprietary position representing the republic, was called 
Aerarium, while the treasury of the emperor was called Fiscus. At 
an uncertain date, but after the time of M. Aurelius, when all power 
was undisguisedly absorbed by the emperor, and the public chests 
were united, the terms Aerarium and Fiscus lost their distinctive 
meanings, and we find them used convertibly in the compilations 
of Justinian. The Fiscus, as a proprietary unit, came to have a 
special legal status and to be invested with peculiar privileges. 

Juristic persons, though invested with rights of property, being 
mere fictions or ideal unities, are, strictly speaking, incapable of 
making a declaration of intention ; for how can a fiction have an 
intention? It is true that slaves could acquire property and active 
obligations for their proprietors ; but a slave could not aliene pro- 
perty, nor be himself subject to a civil obligation, nor be a party to 
a suit : and therefore Universities could not make such dispositions 
by means of their slaves. In this respect they resemble infants and 
lunatics ; and as infants and lunatics must be represented by their 
guardians and curators, so juristic persons must be represented by 
the agents designated and defined by their constitution. The tem- 
porary representative of a Corporation, for the purpose of suing and 
being sued, was called Actor ; a permanent representative for this 



120 DE PERSONIS [r. 197-200. 

purpose was called Syndicus, Gaius in Dig. 3, 4, 1. The consti- 
tutions of juristic persons are too various to admit of any general 
definition. But a juristic person was only bound by the act of its 
representative, in so far as such juristic person was benefited thereby. 
Dig. 12, 1, 27. 

Although a Universitas is said to hold common property, the 
relation of the members of a Universitas must not be identified with 
that of Co-proprietors (communio). A co-proprietor is the separate 
proprietor of an undivided ideal portion, which he can aliene, mort- 
gage, and otherwise dispose of ; and which, by requiring a partition 
(actio communi dividundo), he can always reduce to a real portion : 
whereas the whole of the common property can only be dealt with 
if the co-proprietors are unanimous. Members of a Universitas, 
on the contrary, cannot demand a partition ; and dispositions of 
the property of the Universitas can only be made by the vote 
of a majority, sometimes only by a majority of two-thirds of the 
members. 

Every juristic person was originally incapable of being instituted 
heir, as Pliny mentions in the case of municipalities : Nee heredem 
institui nee praecipere posse rempublicam constat, Epist. 5, 7. 
' Neither an inheritance nor a legacy by praeceptio (which implies 
that the legatee is also heir, 2 217) can be left to a municipality.' 
Juristic persons were not, as is sometimes stated by Koman jurists, 
subject to this incapacity simply because, owing to the idea of 
an artificial person not having yet been distinctly formed, they 
were regarded as personae incertae, 2 238, but also because, being 
fictions, they were incapable of entering on an inheritance (aditio), 
which involves acceptance on the part of the heir, and excludes 
representation. First the senate, disregarding this difficulty, allowed 
municipalities to be instituted heirs by their own liberti, Ulpian 22, 5: 
and subsequently the Emperor Leo, A. D. 469, gave to municipalities 
the capacity of being instituted heir by any testator, Cod. 6, 24, 12. 
No general enactment extended this capacity to all Corporations, but 
some received it as a special privilege. 

Originally municipalities, like other juristic persons, were in- 
capable of taking bequests (legata), but subsequently they were 
declared capable by Nerva and Hadrian, Ulpian 24, 28; 2 195: 
and this capacity was extended to Collegia, Templa and Churches, 
Dig. 34, 5, 20. Towns were also capable of taking successions by 
fideicommissum, Ulpian 22, 5. 

Under Christian legislation Pious Foundations (pia corpora) were 
made capable of taking hereditas and legatum: and testamentary 
dispositions of hereditas and legatum, that would otherwise have 
been void by the rule avoiding devises to incerta persona, e. g. a devise 



I. 197-200.] PERSONARVM VNIVERSITAS 121 

to the poor of a town who, not forming a corporation, were not 
persona certa, acquired validity from the pious purpose of the dis- 
position. 

The origin and extinction of Universitates, Collegia, &c. required 
the assent of the Emperor. The special privileges and incapacities 
which we have indicated, by their analogy to status, may perhaps 
justify the mention of Universities in the law of Persons. Savigny, 
85-102. 



COMMENTARIVS SECVNDYS 

DE BEBVS SINGVLIS ET DE RERVM 
UNIVEESITATIBVS 



DE EEKVM DIVISIONE. 



' 1. Super lore commentario 
de iure personarum \ exposui- 
mus ; modo uideamus de rebus ; 
quae uel in nostro patrimonio 
sunt uel extra nostrum patri- 
monium habentur. 

Inst. 2, 1 pr. 

2. Summa itaque rerum 
diuisio in duos articulos didu- 
citur : nam aliae sunt diuini 
iuris, aliae humani. 

3. Diuini iuris sunt ueluti 
res saerae et religiosae. 

Inst. 2, 1, 7. 

4. Sacrae sunt quae diis 
superis consecratae sunt ; reli- 
giosae quae diisManibusrelictae 
sunt. Inst. 2,1,8. 

5. Sed sacrum quidem hoc 
solum existimatur quod ex 
auctoritate populi Roinani con- 
secraium est, ueluti lege de ea 
re lata aut senatusconsulto 
facto. Inst. 1. c. 

6. Religio'sum uero nostra 
uoluntate facimus mortuum 
inferentes in locum nostrum, si 
modo eius rnortui funus ad nos 
pertineat. Inst. 2, 1, 9. 

7. Sed in prouinciali solo 
placet plerisque solum religio- 
sum non fieri, quia in eo solo 
dominium populi Romani est 
uel Caesaris, nos autem pos- 
sessionem tantum uel usum- 
fructum habere uidemur; uti- 
que tamen etiamsi non sit reli- 
giosum, pro reHgioso habetur. 



1. In the preceding book the 
law of persons was expounded ; 
now let us proceed to the law of 
things, which are either subject 
to private dominion or not subject 
to private dominion. 

2. The leading division of 
things is into two classes : things 
subjects of divine, and things 
subjects of human right. 

3. Subjects of divine right 
are things sacred and things reli- 
gious. 

4. Sacred things are those 
consecrated to the gods above ; 
religious, those devoted to the 
gods below. 

5. Sacred things can only be- 
come so with the authority of the 
people of Rome, by consecration 
in pursuance of a law or a decree 
of the senate. 

6. A religious thing becomes 
so by private will, when an in- 
dividual buries a dead body in his 
own ground, provided the burial 
is his proper business. 

7. On provincial soil, accord- 
ing to most authorities, ground 
does not become religious as the 
dominion belongs to the people of 
Rome or the Emperor, and in- 
dividuals only have possession or 
usufruct, but such places, though 
not properly religious, are to be 
regarded as quasi-religious. 



IT. 1-14] DE RERVM DIVISIONS 



123 



7 a. Item quod in pro- 
uinciis nonex auctoritatepopuli 
Roman! consecratum est, pro- 
prie sacrum non est, tamen pro 
sacro habetur. 

8. Sanctae quoque res, 
uelut mini et portae, quodam- 
modo diuini iuris sunt* 

Inst. 2, 1,10. 

9. Quod autem diuini 
iuris est, id nullius in bonis 
est ; id uero, quod humani iuris 
est, plerutnque alicuius in 
bonis est : potent autem et nul- 
lius in bonis esse; nam res 
hereditariae, antequam aliquis 
heres existat, nullius in bonis 
sunt. Inst. 1. c. 

96. 

(8 fere uersus in C legi ne- 

queunt) 
1 *e domino. 

10. Hae autem quae hu- 
mani iuris sunt, aut publicae 
sunt aut priuatae. 

11. Quae publicae sunt, 
nullius mdentur in bonis esse ; 
ipsius enim uniuersitatis esse 
creduntur. priuatae sunt quae 
singulorum hominum sunt. 



7 a. Just as provincial soil, in 
default of the authorization of the 
people of Rome, is rendered by 
consecration not sacred, but quasi- 
sacred. 

8. Sanctioned places are to a 
certain extent under divine domi- 
nion, such as city gates and city 
walls. 

9. Things subject to divine 
dominion are exempt from private 
dominion; things subject to hu- 
man dominion are generally sub- 
ject to private dominion, but may 
be otherwise: for things belonging 
to an inheritance before any one 
has become heir have no actual 
owner. 



10. Things subject to human 
dominion are either public or pri- 
vate. 

11. Things public belong to 
no individual, but to a society or 
corporation ; things private are 
subject to individual dominion. 



DE KEBVS INCOBPORALIBVS. 



12. Quaedam praeterea res 
corporales sunt, quaedam in- 
{corporales}. Inst. 2, 2 pr. 

13. Corporales hae {sunt} 
quae tangi possunt, uelut fun- 
dus homo uestis aurum argen- 
tum et denique aliae res \nnu- 
merabiles. Inst. 1. c. 

14. Incorporates sunt quae 
tangi non possunt, qualia sunt 
ea quae iure consistunt, sicut 
hereditas ususfructus obliga- 
tiones quoquo modo contractae. 
nee ad rem per(tinet, quod in 
hereditate res corporales con-~) 



12. Again, things are either 
corporeal or incorporeal. 

13. Things corporeal are tan 
gible, as land, a slave, clothing, 
gold, silver, and innumerable 
others. 

14. Things incorporeal are 
intangible ; such as those which 
have an existence simply in law as 
inheritance, usufruct, obligation, 
however contracted. For though 
an inheritance comprises things 
corporeal, and the fruits of land 



124 



DE REBVS SINGVLIS 



[n. 1-14. 



tinentur et fructus qui ex fundo 
percipiuntur corporales suni, 
et quod ex aliqua obligation e 
nobis debetur, id plerumque 
corporal est, uduti fundus 
homo pecunia ; nam ipsum ius 
successionis et ipsum ius utendi 
fruendi et ipsum ius obliga- 
tionis incorporate est. eodem 
numero sunt iura praediorum 

urbajnorum et rusticorum. 

j altius tollendi 1 

luminibus uicini aed non 

extollen|di, ne luminibus uicini 
officiatur. | item fluminum et 
stilicidiorum ius, ut | 



in aream ] 1 

ius aquae ducendae j 



Inst. 2, 2, 2 and 3. 



enjoyed by a usufructuary are cor- 
poreal, and obligations generally 
bind us to make over the convey- 
ance of some thing corporeal: land, 
slaves, money; yet the right of 
succession, the right of usufruct, 
and the right of obligation are 
incorporeal. So are the rights 
attached to property in houses and 
land. The following are rights 
attached to property in houses ; 
the right of raising a building 
and thereby obstructing the lights 
of a neighbouring building ; the 
right of prohibiting a building 
being raised, so that one's lights 
may not be interfered with ; the 
right of letting rain-water fall in 
a body or in drops on a neigh- 
bour's roof or area ; the right of 
having a sewer through a neigh- 
bour's area, or a window in a 
neighbour's wall (cf. Epit. 2, 1, 3). 
The following are rights attached 
to property in land : iter, a right of 
way on foot or horseback ; actus, 
a right of way for ordinary car- 
riages ; via, a right of paved way 
for heavy-laden wagons ; pecoris 
ad aquam appulsus, a right of 
watering cattle ; aquae ductus, a 
right of conveying water through 
the tenement of another. 

Having treated of the law of Persons (unequal rights), we proceed 
to the law of Things (equal rights), and the first right which Gaius 
intends to discuss is the right called Dominion. Seduced, however, 
by an ambiguity of the word Kes, which signifies either a right or 
the subject of a right, his opening statements ( 12-14) are 
deplorably confused. 

In order to see our way, let us first examine Kes as denoting the 
Object of a right. Every right implies, as we have stated, a duty ; 
and eveiy right or duty implies at least two persons, one of whom is 
entitled to the right while the other is liable to the duty. The imme- 
diate OBJECT of every right is an act or forbearance of the person 
who is liable to the duty. But the act or forbearance generally 
relates to some body, that is, to some tangible portion of the 
external world, whether a thing or a person. This body, accord- 
ingly, may be called the mediate, indirect, or secondary Object of 



ii. 1-14.] DE RERVM DIVISIONS 125 

the right. The secondary object of a right, however, is not always 
a body ; it may be corporeal or incorporeal. For instance, dominium 
over land is a right to forbearance on the part of all the world from 
molestation of the owner in dealing with the land. A servitude, 
say a right of way, is a right to forbearance on the part of all the 
world from molestation of the person entitled when he passes over 
certain land. A contractual right is a right to a positive act or forbear- 
ance on the part of a determinate person, say, to the conveyance or 
delivery of a certain piece of land. In these cases, land, the secondary 
object of the right, is something corporeal. So, too, when a 
person is the object of a right ; for instance, a child or a gladiator, 
3 199, in the possession (detention or custody) of the parent or 
employer, and whose removal from such possession engenders in the 
removing party an obligation ex delicto. But in primordial rights, 
the object, at least as distinguished from the two parties in whom 
the right and duty respectively vest, is something incorporeal. 
A man has a right to forbearance on the part of all the world from 
molestation in his life, health, locomotion, honour. These objects 
of the right are incorporeal. Other rights, apparently, have no 
determinate object, corporeal or incorporeal, to which they are 
correlated. In a right to the services of a menial or gladiator, 
for instance, it would be hard to indicate any secondary or corporeal 
object to which the obligation of the menial or gladiator relates. 

It is clear that no division of Objects of right will coincide with 
a classification of Eights: while, if we divide Ees in the meta- 
physical sense of the World, or Being, or Existence (a sense sug- 
gested by the differentiae, corporalis, and incorporalis), Dominium, 
like all other rights, will be a member of the branch res incorporales, 
or Ownership. Gaius, however, wishes us to identify Dominium 
with res corporalis, and to make Obligation and the fractions of 
Dominium (servitutes), and even some forms of Dominium (e. g. 
hereditas), members of the contra-distinguished branch, res incor- 
poralis. (Of. 3 83, omnes ejus res incorporales et corporales quaeque 
ei debita sunt.) 

Gaius was probably not entirely responsible for this confusion of 
thought, which, perhaps, was too deeply inwoven in the formulae 
of Eoman jurisprudence to be easily eliminated by an institutional 
writer. E. g. the declaration (intentio) of a real action (in rem 
actio) was of the form : Si paret (i) ilium fundum (2) illam 
hereditatem actoris esse. (Cf. 4 3 In rem actio est cum aut 
corporalem rem intendimus nostram esse aut jus aliquod nobis 
competere.) Now as hereditas is a jus successionis, 14, it is clear 
that, if the second formula is correct, the first formula ought to be, 
not, Si paret ilium fundum but, Si paret illius fundi dominium 



126 DE REBVS SINGVLIS [n. 1-14. 

actoris esse. To meet this and similar inaccuracies of the framers 
of the formularies, Gaius is misled into identifying in res corporalis 
two things completely disparate, Right and the corporeal thing or 
Secondary Object of a right. There is a similar confusion in English 
law, chattels, tenements, and hereditaments being sometimes used to 
denote the objects, movable or immovable, of certain rights, some- 
times the rights over those objects : and just as Res is divided into 
Corporalis and Incorporalis, so Hereditaments are divided into 
Corporeal and Incorporeal ; although, if the term denotes a right, 
both branches are equally incorporeal : if it denotes the secondary 
object of a right, both branches are equally corporeal. 

We shall find hereafter, 4 138-170, comm., that the position of 
POSSESSION in Roman jurisprudence whether it belongs to the 
department of jus IN REM or of OBLIGATIO EX DELICTO is a moot 
question ; but at present we ned do no more than notice the 
existence of the controversy. We need also only to indicate a 
division of rights and duties into SINGLE rights and duties, and 
AGGREGATES of rights and duties (UNIVERSITAS JURIS), such as 
Hereditas. A UNIVERSITAS JURIS includes Obligations as well as 
Rights, Jus in personam as well as Jus in rem, being in fact the 
succession of One person to which another person succeeds. But in 
spite of the diverse character of the elements of which it is composed, 
the JURIS UNIVERSITAS itself, or the ideal whole of these various 
elements, is regarded, . g. in Hereditatis petitio, as a real Right, not 
an Obligation ; as a Jus in rem, not a Jus in personam. 

As Graius thought that he could obtain the idea of Dominium by 
a division of Res into corporales and incorporales, so he seems to 
have thought that he could distinguish private dominium, the special 
department which he intends to examine, from other forms of do- 
minium by a further division of Res. The phrases res divinae, res 
humanae, res communes, res publicae, res privatae, do indeed sug- 
gest the notion that res privatae is a specific member of the genus 
Res ; but the appearance is fallacious. Very little reflection will 
convince us that res divinae, res publicae, res privatae are not 
a division of the OBJECTS of property (res) ; for the same thing, a 
piece of ground, for instance, may be an object of divine or public 
or private dominion ; but merely a division of proprietors. In res 
divinae, the only doubtful case, the gods were deemed to be pro- 
prietors. Sed et ilia interdicta quae de locis sacris et de religiosis 
proponuntur veluti proprietatis causam continent, Dig. 43, 1, 2, 2. 
' The interdicts respecting sacred and religious places protect a 
quasi-pr operty . ' 

The division of the objects of right by their physical differences, 
the only way in which they can be divided, though only of subor- 






ii. 1-14.] DE KERVM DIVISIONS 127 

dinate importance, and though it cannot furnish the distinctions of 
Dominium and Obligation, nor of Public and Private dominium, yet 
has a considerable influence on jurisprudence, and demands a certain 
amount of attention. Thus ocean, air, and light, as opposed to the 
earth, are by their nature essentially res communes. Being in- 
capable of appropriation, they have not been appropriated and are 
held in communism. Again, in wild animals, as opposed to tame, 
property is only coextensive with possession. On the difference 
between specific and generic things, or things consumed by use, 
quae pondere numero mensurave constant, and things not consumed 
by use, is founded the distinction between the contracts of mutuum 
and commodatum. Cf. 3 9(X On the same difference of specific 
and generic things are founded different rules relating to the con- 
tract of sale, 3 139-141, comm. ; and the distinction of movables 
and immovables founds important differences in Eoman and other 
systems of law. 

The phrases in nostro patrimonio and extra nostrum patrimonium, 
1, are apparently equivalent to alicujus in bonis and nullius in 
bonis, 9, and to the expressions we meet elsewhere, in commercio 
and extra commercium. 

Of res communes, or things such as air and running water, which 
sometimes come under discussion (cf. Inst. 2, 1, 1 Et quidem 
naturali jure communia sunt omnium haec: aer et aqua profluens 
et mare et per hoc litora maris) but are not mentioned by Gaius, 
we may observe, that they only fall within the province of positive 
law, as belonging to the jurisdiction of each particular state. 

All the things within the territory of a given state are subject to 
its dominion (dominium eminens), that is, are res publicae in a 
general sense of the term. Of these things it allows the dominium 
over some to vest in private individuals for their own advantage, 
while it retains the dominium over others in itself as if it were a 
corporation or collective person (personarum universitas). This 
gives us a division of all things into res privatae and res publicae 
in a narrower sense of the term. We must note, however, that the 
dominium of the state is not exactly similar to private dominium, 
that is to say, is not dominium ir the proper sense or the sense in 
which the word is used in civil law. For the civil dominium. of 
private persons is a right protected and sanctioned by a political 
superior, whereas a sovereign state is by hypothesis in subjection 
to no superior. A state, then, can only be said to have dominium 
in a modified sense of the word, that is, so far as it is not restrained 
by any positive law of any superior from using and dealing with 
certain things as it may please. 

Of things which are objects of public dominion, some are vested 



128 DE REBVS SINGVLIS [n.l-14. 

immediately in the state, others in subordinate persons, single or 
corporate, magistrates, for instance, and municipalities, to be held 
by such persons for various public purposes. Among these we 
might also reckon res divini juris, though as dedicated to religious 
purposes, such things were regarded by the Eomans as no man's 
property, 3-6. 

Another division of res publicae is into res in patrimonio populi 
and res non in patrimonio populi. Under the former are included 
the public treasury, the public domain, public slaves, bequests 
lapsing to the state (caduca) or res privatae otherwise devolving on 
the state ; in other words, all things of which the state as universitas 
retains not only the property but also the use and disposition (res 
enim fiscales quasi propriae et privatae principis sunt, Dig. 43, 8, 
2, 4). The other class includes high roads, public rivers, public 
buildings, &c., that is, all things of which the property is in the 
community and the use in the members of the community. Or 
we may say that the property is in the universitas, but it is subject 
to a personal servitude (usus) vested in all the private members of 
that universitas (singuli, universi). 

Not only res publicae but res privatae may be thus subject. For 
instance, the banks of public rivers and the trees thereupon are the 
property of the adjacent proprietors ; but the navigators of these 
rivers have the right of mooring, landing, unlading, and using the 
banks in various other ways, Inst. 2, 1, 4. 

Ownership (dominium) absolute or pre-eminently so called, may 
be denned as a right of unlimited duration, imparting to the owner 
a power of indefinite enjoyment or use, and a power of aliening from 
all who in default of alienation by him might succeed by descent ; 
or, in other words, from all successors interposed between himself 
and the sovereign as ultimus heres. It is accordingly sometimes 
said to consist of jus utendi, fruendi, abutendi ; where abusus includes 
the power of consumption or destruction, of dereliction, and of 
disposition (sale, exchange, gift, mortgage, lease, &c.). Another 
element is equally important, the right of exclusion (jus prohi- 
bendi). Another is the jus transmittendi, i. e. the right of leaving 
the integral right, in the absence of Disposition, to those whom he 
would presumably have wished to be his successors. 

Besides ownership (dominium) Eoman law recognizes various 
kinds of partial property, real rights over an object of which the 
dominium is in another person, called jura in re or jura in re 
aliena, rights which fall short of absolute property but approxi- 
mate to it in various degrees. Such rights, which are limitations 
of ownership, are servitudes, 14, mortgage (pignus), super- 
ficies, and emphyteusis. These may all be regarded as detached 



II. 1-14.] SERVITUDE 129 

fractions of ownership, portions of the right of dominion taken from 
the proprietor and vested in another person. Servitudes are explained 
by Justinian in the parallel passage of his Institutes (2, 3-5), and, 
together with the other jura in re aliena, demand here a brief notice. 

Servitudes are (i) praedial or real (praediorum), that is, belong to 
a person as owner of a certain house or land (praedium dominans) 
in respect of a house or land belonging to another proprietor (prae- 
dium serviens), or (2) personal (personarum), that is, are vested in 
a person without relation to his ownership of praedium dominans, 
and being thus inseparably attached to him they are inalienable and 
determine at his death. (Compare in English law the division of ease- 
ments into easements appurtenant to land and easements in gross.) 

Praedial servitudes are servitudes in the strictest sense, being con- 
trasted with ownership by their precise and definite circumscription. 
Ownership (dominium) is a right against the world which gives to 
the party in whom it resides a power of dealing with the subject 
which is not capable of exact definition. Servitude is such a right 
against the world as gives to the party in whom it resides a power 
of using the subject which is susceptible of precise description. It is 
a definite subtraction from the indefinite powers of use and exclusion 
which reside in the owner ; or a right against the owner and the rest 
of the world to make certain use of a thing or prohibit certain uses. 

Praedial servitudes are (i) rustic, relating to land, or (2) urban, 
relating to houses. Urban servitudes are further subdivided into 
Positive or Affirmative and Privative or Negative. The following 
considerations will show the meaning of this division and its origin 
in the nature of Property. 

Servitudes are limitations of, or deductions from, another person's 
ownership or dominium. Dominium contains, among other elements, 
(A) certain powers of action (jus utendi), and (B) certain powers of 
exclusion (jus prohibendi). Kestrictions on these powers will be 
(a) a certain necessitas non utendi, and (6) a certain necessitas 
patiendi. Correlative to these duties on the part of the owner 
of the servient tenement will be certain rights of the owner of the 
dominant tenement, viz. (a) a certain jus prohibendi, and (/3) a 
certain jus utendi, or in other words, (a) a certain negative servitude, 
and (#) a certain affirmative servitude. As it happens that all the 
servitudes which public policy has recognized in relation to land 
are of an Affirmative character (except Si concedas mini jus tibi 
non esse in fundo tuo aquam quaerere, minuendae aquae meae gratia, 
Dig. 8, 1, 15 pr. though, as Windscheid remarks, there is no reason 
why this should not also be an urban servitude ) and relate to some 
transient action (except Ut tugurium mihi habere liceret in tuo, 
scilicet si habeam pascui servitutem aut pecoris appellendi, ut, si 



130 DE ADQVIRENDO RERVM DOMINIO [n.l-14. 

hiems ingruerit, habeam quo me recipiam, Dig. 8, 3, 6, 1), they may 
be called jus faciendi : while those relating to houses are both Affirma- 
tive and Negative (jus prohibendi). Affirmative Urban servitudes, 
implying some permanent structure, may, in conformity with classical 
usage (e. g. jus tignum immissum habendi) for the sake of distinction 
from the Rural servitudes, be called jus habendi : they resemble them 
in the generic character that they are each a jus utendi. 

(1) Instances of Rural servitude (jus faciendi) are iter, or jus eundi, 
right of way for beast and man on foot or on horseback over the 
servient tenement to the dominant tenement ; actus or jus agendi, 
right of way for ordinary carriages (not for heavy-laden wagons) ; 
via (or jus vehendi ?), right of paved way for heavy-laden wagons ; 
aquae haustus, the right of drawing water from a private spring ; 
aquae ductus, the right of conveying water over the servient tene- 
ment ; pecoris ad aquam appulsus, the right of watering cattle ; jus 
pecoris pascendi, the right of pasturing cattle ; jus calcis coquendae, 
the right of burning lime ; jus cretae eximendae, the right of quarry- 
ing for chalk ; jus arenae fodiendae, the right of taking sand ; jus 
silvae caeduae, the right of cutting wood in a wood suitable for the 
purpose. 

(2) Instances of affirmative urban servitudes are jus tigni im- 
mittendi, the right of inserting a beam in a neighbour's wall ; jus 
oneris ferendi, the right of resting a weight on a neighbour's wall or 
column (this servitude involves on the part of the servient owner the 
positive obligation of repairing the servient wall (refectio) ; whereas 
all other servitudes, as real rights, are contradistinguished from obliga- 
tions or personal rights, by corresponding to the merely negative 
duty of abstention ; cf. Windscheid, Pandekten, 1 2 1 1 a, note 3) ; 
jus protegendi, the right of projecting a roof over the soil of a neigh- 
bour ; jus stillicidii recipiendi or avertendi or immittendi, the right 
of directing the rainfall on to a neighbour's roof or area ; jus cloacae 
immittendae, the right of making a sewer through the area of a neigh- 
bour; servitus luminum or jus luminis immittendi, the right of having 
a window in a neighbour's wall ; jus officiendi luminibus vicini, 
the reacquired right of an owner to diminish the light of a neighbour ; 
jus altius tollendi, the reacquired right of an owner to increase the 
height of a structure, 31 ; the right of storing fruit in his villa, ut 
fructus in vicini villa cogantur coactique habeantur ; of placing quar- 
ried stones on his land, posse te cedere jus ei esse terram, rudus, saxa, 
jacere posita habere, et ut in tuum lapides provolvantur ibique positi 
habeantur, Dig. 8, 3, 3, 1 and 2. Vangerow holds that Aquaeductus, 
implying jus habendi, though it is servitus Rustica as to the land 
from which water is taken, is servitus Urbana as to the land over 
which water is conveyed. 



II. 1-14.] SERVITUDE 131 

(3) Instances of jus prohibendi are jus altius non tollendi, the 
right of forbidding a neighbour to raise the height of his buildings ; 
jus ne prospectui officiatur, the right of having a prospect uninter- 
cepted ; jus ne luminibus officiatur, the right of having the access of 
light to one's windows obstructed ; jus stillicidii non avertendi, the 
reacquired right of prohibiting my neighbour from discharging his 
rainfall into my area. Inst. 2, 3. 

Personal servitudes (Inst. 2, 4 and 5) are rights of a less limited 
character in respect of user, but more restricted as to duration than 
praedial : instances are Habitatio, the right of occupying a house ; 
Usus, the right of using a thing and consuming its immediate fruits 
or products, without the right x>f letting the thing or selling its pro- 
ducts ; of acquiring, in other words, its rent and profits, which may 
be regarded as its mediate or secondary fruits. Fructus, usually called 
Ususfructus, the further right of leasing the thing and selling its 
fruits. Habitatio, Usus, Ususfructus were usually, though not in- 
variably, life interests, and, unlike real servitudes, implied Detention 
of the object ; Possession of it, as opposed to Detention (4 138-170, 
comm.), remaining in the proprietor. For the modes of creating and 
vindicating servitudes, see 28-33 ; 4 88, comm. Servitus was the 
only jus in re aliena belonging to jus civile. The other jura in re aliena, 
subsequently instituted, were pignus, superficies and emphyteusis. 

Pignus or hypotheca, as developed by praetorian law, was the right 
of a creditor in a thing belonging to his debtor, maintainable against 
any one, in order to secure satisfaction of his debt. The praetorian 
action, by which the creditor could claim possession of the thing 
pledged, corresponding to the vindicatio of the owner, is called actio 
quasi Serviana in *em or hypothecaria. See 3 90, 91, comm. 

Superficies is the right of a person who, having rented land for 
building on a long or perpetual lease, has built a house on it, which 
according to jus gentium, by the rule of Accession, is the property 
of the proprietor of the soil ; cf. Inst. 2, 1, 29. The Praetor, how- 
ever, recognized in the superficiarius a jus in re which he protected 
by an interdict de superficie and ? ~ actio in rem utilis. 

Jus in agYo vectigali or emphyteusis, as this species of right came 
to be called subsequently to the time of Gaius, from waste lands of 
the Emperor being let out under this kind of tenancy to be planted 
or cultivated, was a perpetual lease which transferred to the tenant 
or emphyteuta most of the rights of the owner. Accordingly he 
could maintain actio vectigalis in rem against any one to recover 
possession of the land thus leased to him. See 3 145. Although 
emphyteusis might be of unlimited duration, and was alienable with- 
out the consent of the owner, subject to his right of pre-emption, 
yet the owner had a right of recovering the land for breach of con- 

K -2, 



132 DE ADQVIRENDO RERVM DOMINIO [n. 14 o-27. 

dition, or failing heirs of the emphyteuta, much as the feudal lord 
of a fee could recover the fief on forfeiture or escheat of the tenant, 
emphyteusis being even regarded by some as the model on which 
feudaj tenure was instituted. This forfeiture or escheat to the lord 
of the fee makes property in land theoretically imperfect, like 
emphyteusis, falling short of ownership. Property in chattels, on the 
contrary, is not held of a superior, and, therefore, is absolute. 

The Profits and Easements of English law generally correspond to 
the Servitutes of Roman law. But the principle : Servitutium non 
ea natura est ut aliquid faciat quis, sed ut aliquid patiatur aut non 
faciat, Dig. 8, 1, 15, 1 : ' Servitudes are not a right to a performance 
but to a permission or forbearance : ' would exclude from the class of 
Servitudes some members of the class of Profits ; e. g. Rents, which 
are said to lie in render, i. e. to involve a performance of the party 
burdened, not in prender, i. e. not to consist in an act of the party 
entitled. Roman law adhered strictly to the principle that Real 
rights, or rights against the world, can only correlate to negative 
duties, duties of forbearance ; and that rights correlating to positive 
obligations, or duties of performance, can only be Personal ; i. e. can 
only regard a particular individual and his universal successors. 

14a-27. Having described the various kinds of real right (jus 
in rem), i. e. dominium and its fractions (jura in re), we proceed to the 
TITLES of real rights, that is to say, the events to which these rights 
are annexed by the law ; in other words, the modes prescribed by the 
law by which such rights may be acquired ; in other words, the legal 
definitions of the classes of persons in whom such rights are declared 
to be vested. 

The Titles of real rights are divisible into Titles by which single 
real rights are acquired and Titles by which aggregates of rights 
(universitates jurum) are acquired. 

Titles by which single real rights are acquired are divisible into 
Titles sanctioned by the civil law (jus civile) and Titles sanctioned by 
natural law (jus gentium, jus naturale), natural law denoting the rules 
of Roman law introduced by praetors, jurists and statutes, as con- 
sonant to the general reason of mankind. 

Titles to ownership by civil law are mancipatio, in jure cessio, 
usucapio, and others which will be mentioned. Titles by natural law 
are traditio, occupatio, accessio, and others which will be mentioned, 
35. We commence with Titles by civil law. 

RERVM CORPORALTVM ADQVISITIONES CIVILES. 

14 a. aut mancipi 14a. Things are further divided 

sunt aut nee mancipi. | Man- into mancipable and not manci- 
cipi sunt 1 item aedes in pable ; mancipable are land and 



IT. 14 o-27.] RERVM C. ADQVISITIONES CIVILES 133 



Italico solo 1 1 

serui\tutes praediorum urbano- 
rum nee mancipi sunt. \ 

1120; Ulp.19,1. 



15. Item stipendiaria prae- 
dia et tributaria nee mancipi | 

sunt. sed quod diximus 1 

mancipi esse 1 statim ut 

nata sunt mancipi esse putan ; 
Nerua uero et Proculus et 
ceteri diuersae scholae auctores 
non aliter ea mancipi esse 
putant, quam si domita sunt ; 
et si propter Tiimiam feritatem 
domari non possunt, tune uideri 
mancipi esse incipere, cum ad 
earn aetatem peruenerit, qua 
domari solent. 

16. Item ferae bestiae nee 
mancipi sunt uelut ursi leones, 
item ea animalia quae fere 
bestiarum numero sunt, ueluti 
elephanti et cameli ; et ideo ad 
rem non pertinet, quod haec 
animalia etiam collo dorsoue 
domari solent ; nam ne nonien 
quidem eorum animalium illo 
tempore (notum} fuit, quo con- 
stituebatur quasdam res man- 
cipi esse, quasdam nee mancipi. 

17. Item fere omnia quae 
incorporalia sunt nee mancipi 
sunt, exceptis seruitutibus 
praediorum rusticorum ; nam 
eas mancipi esse constat, quam- 
uis sint ex numero rerum in- 
corporalium. 

18. Magna autem dif- 
ferentia est inter mancipi res 
et nee mancipi. 

19. Nam res nee mancipi 
ipsa traditione pleno iure 
alterius fiunt, si modo cor- 
porales sunt et ob id recipiunt 
traditionem. 



houses in Italy ; tame animals 
employed fordraught and carriage, 
as oxen, horses, mules, and asses ; 
rustic servitudes over Italian soil ; 
but urban servitudes are not 
mancipable. 

15. Stipendiary and tributary 
estates are also not mancipable. 
According to my school animals 
which are generally tamed are 
mancipable as soon as they are 
born ; according to Nerva and 
Proculus and their followers, such 
animals are not mancipable until 
tamed, or if too wild to be tamed, 
until they attain the age at which 
other individuals of the species 
are tamed. 



16. Things not mancipable 
include wild beasts, as bears, 
lions ; and semi-wild beasts, as 
elephants and camels, notwith- 
standing that these animals are 
sometimes broken in for draught 
or carriage ; for their name was 
not even known at the time when 
the distinction between res man- 
cipi and nee mancipi was estab- 
lished. 



17. Also things incorporeal, 
except rustic servitudes on Italian 
soil ; for it is clear that these are 
mancipable objects, although be- 
longing to the class of incorporeal 
things. 

18. There is an important 
difference between things manci- 
pable and things not mancipable. 

19. Complete ownership in 
things not mancipable is trans- 
ferred by merely informal delivery 
of possession (tradition), if they 
are corporeal and capable of 
delivery. 



134 DE ADQVIRENDO RERVM DOMINIO [n. 14 a-27. 



20. Itaquo si tibi western 
uel aurum uel argentum tradi- 
dero siue ex uenditionis causa 
siue ex donationis siue quauis 
alia ex causa, statim tua fit ea 
res, si modo ego eius dominus 
sim. 

21. Jn eadem causa sunt 
prouincialia praedia, quorum 
alia stipendiaria alia tributaria 
uocamus. stipendiaria sunt ea, 
quae in his prouinciis sunt, 
quae propriae populi Romani 
esse intelleguntur ; tributaria 
sunt ea, quae in his prouinciis 
sunt, quae propriae Caesaris 
esse creduntur. Inst. 2, 1, 40. 

22. Mancipi uero res sunt, 
quae per mancipation em ad 
aliurn transferuntu r ; unde etiam 
mancipi res sunt dictae. quod 
autem ualet (mancipatio, idem 
ualet et in iure cessio. 

23. Et} mancipatio qui- 
dem quemadmodum fiat, supe- 
riore commentario tradidimus. 

24. In iure cessio autem 
hoc modo fit : apud magistra- 
tum populi Romani, ueluti 
praetorem, is cui res in iure 
ceditur rem tenens ita dicit 

HVNC EGO HOMINES! EX 1VRE 
QVIKITIVM MEVM ESSE AIO ; 

deinde postquam hie uindica- 
uerit, praetor interrog&t eum 
qui cedit, an contra uindicet ; 
quo negante aut tacente tune 
ei qui uindicauerit, earn rem ad- 
dicit ; idque legis actio uoca- 
tur. hoc fieri potest etiam in pro- 
uinciis apud praesides earum. 

25. Plerumque tamen et 
fere semper mancipationibus 
utimur. quod enim ipsi per 
nos praesentibus amicis agere 
possumus, hoc non est necesse 
cum maiore difficultate apud 



20. Thus when possession of 
clothes or gold or silver is de- 
livered on account of a sale or 
gift or any other cause, the pro- 
perty passes at once, if the person 
who conveys is owner of them. 

2 1. Similarly transferable are 
estatesinprovincial lands, whether 
stipendiary or tributary; stipen- 
diary being lands in provinces 
subject to the dominion of the 
people of Borne ; tributary, lands 
in the provinces subject to the 
dominion of the Emperor. 



22. Mancipable things, on the 
contrary, are such as are conveyed 
by mancipation, whence their 
name ; but surrender before a 
magistrate has exactly the same 
effect in this respect as mancipa- 
tion. 

23. The process of mancipa- 
tion was described in the preced- 
ing book (1 119). 

24. Conveyance by surrender 
before a magistrate (in jure cessio) 
is in the following form : in the 
presence of some magistrate of the 
Roman people, such as a praetor, 
the surrenderee grasping the ob- 
ject says : I SAY THIS SLAVE is MY 

PKOPERTY BY TITLE QuiKITAKY. 

Then the praetor interrogates the 
surrenderor whether he makes a 
counter-vindication, and upon his 
disclaimer or silence awards the 
thing to the vindicant. This 
proceeding is called a statute- 
process ; it can even take place in 
a province before the president. 

25. Generally, however, and 
almost always the method of man- 
cipation is preferred ; for why 
should a result that can be accom- 
plished in private with the assist- 
ance of our friends be prosecuted 



n. 14 a-27.] RERVM C. ADQVISITIONES CIVILES 135 



praetorem aut apud praesidem 
prouinciae agere. 

26. Quodsi neque manci- 
pata neque in iure cessa sit res 
mancipi 

(6 uersus in C legi nequeunt) 
|*plena possessio con- 
ex formula qua hi 
I 1 fructus 



with greater trouble before the 
praetor or president of the pro- 
vince ? 

26. If neither mancipation 
nor surrender before the magis- 
trate is employed in the convey- 
ance of a mancipable thing .... 



cessa- 
qu 
na 



27. Item adhuc i- 



(4 uersus in C legi nequeunt) 
jnon fuissent -| 

(7 uersus in C legi nequeunfy 

-s 1 1 estquo 

nomine 1 ere uel 1 

praedium [dem ulla libera 

ciuitas odraonendi sumus 

| esse, prouincialis soli 

nexum non e | significa- 

tionem solum ItaMcuro. man- 
cipi esi.projuinciale nee mancipi 
est. aliter enim ueteri lingua 
a| mancipa |. 

14a-23. Mancipable things things taken by the hand and so 
alienable were at first, probably, the more important accessories of 
a farm, that is, slaves and beasts of burden oxen, horses, mules and 
asses (1 1 20), land itself in Italy and rural servitudes attaching to 
such land being subsequently made mancipable. 

These, the objects of principal value to an agricultural community, 
became alienable by means of the formal proceeding by bronze and 
balance, called mancipation, which Gaius says (1, 119) is an 
imaginary sale. 

In its origin, however, mancipation appears to have been not an 
imaginary, but a genuine sale for valuable consideration. The intro- 
duction of coined money by making the weighing of the bronze in 
the scales a formality first gave the proceeding an appearance of un- 
reality, but in order to maintain its original character, the Twelve 
Tables, which were passed at the time when this important monetaiy 
change took place, expressly declared that no property should pass by 
mancipation, unless the price was actually paid to the mancipating 
party or security given him for it (cf. Inst. 2, 1 , 41 Venditae vero et 
traditae non aliter emptori adquiruntur, quam si is venditori pretium 
solverit vel alio modo ei satisfecerit, veluti expromissore aut pignore 
dato : quod cavetur etiam lege duodecim tabularum) where traditae 



136 DE ADQVIRENDO KERVM DOMINIO [n. 14 a-27. 

is an evident Tribonianism for mancipatae. But this law was after* 
wards evaded by juristic ingenuity, the practice of paying only a 
nominal sum a single sesterce being held to be a sufficient com- 
pliance with it. This made it possible to use mancipation as a mere 
conveyancing form. Even in the case of genuine sales, it was found 
advantageous only thus to pay a nominal sum in the mancipation 
itself and to make the payment of the purchase money something 
entirely apart, for by this means the mancipating party in fact escaped 
the liability imposed on him by the Twelve Tables of paying, as 
warrantor of the title (auctor), double the price to the other party to 
the transaction in case of the latter being evicted (cf. Cic. pro Mur. 
2, 3, in Caec. 19, 54), and it had the further advantage that the pur- 
chaser was enabled to acquire ownership by the mancipation before he 
had paid the actual purchase money (cf. Muirhead, Koman Law, 30 ; 
Sohm, pp. 51,61). How, by means of the nuncupation and by collateral 
fiduciary agreements, mancipation was adapted to effect various legal 
purposes, may be seen in other parts of the text and commentary. 

The form of mancipation (1, 119) shows its archaic origin. If, as 
has been thought by many modern writers, the witnesses to it 
originally represented the five classes of the Eoman people, manci- 
pation, at least in its ultimate form, cannot have been earlier than 
the Servian constitution, by which this division of the people was 
made. The advantage of requiring the presence of a number of 
citizens to bear testimony to important transfers of property in an 
age when writing was not in common use is apparent. 

24-26. In jure cessio the other mode of transfer peculiar to 
Jus Civile, and so likewise confined to Eoman citizens, is an adapta- 
tion of the legis actio per vindicationem to conveyancing purposes, 
depending for its operation on the collusive admission by the 
defendant of the supposed plaintiff's claim (confessus pro judicato 
est). This fictitious process, which is not so primitive in character 
as mancipation, though it was also recognized by the law of the 
Twelve Tables, must have been introduced to circumvent the law 
in order to effect objects unattainable by direct means, such as the 
manumission of slaves. Though Quiritary ownership could be thus 
conveyed, it was, for the reason given in 25, rarely employed for 
this purpose. But for creating or transferring some kinds of rights 
surrender before a magistrate was essential, 30, 34. 

In jure cessio or surrender before a magistrate cannot fail to 
recall to an English lawyer two similar modes of alienation that 
recently existed in English jurisprudence, alienation by Fine and 
alienation by Kecovery, both of which, like in jure cessio, were 
based on a fictitious action ; in both of which, that is to say, 
although the parties did not really stand in the relation of adverse 



IT. 14 o-27.] KERVM C. ADQVISITIONES CIVILES 137 

litigants, the alienee was supposed to recover an estate by process of 
law. By a Fine, an action commenced against the alienor and at 
once terminated by his acknowledging the right of the alienee, a 
tenant in tail could aliene the fee simple, so far at least as to bar 
his own issue. By a Recovery, a tenant in tail could convey an 
absolute estate in fee. This was an action supposed to be, not like 
a Fine immediately compromised, but carried on through every 
regular stage to the conclusion ; whereby the alienee recovered 
judgement against the alienor, who in his turn recovered judgement 
against an imaginary warrantor whom he vouched to warranty (cf. 
laudat auctorem, 3 141, comm.). 

Res nee mancipi, that is all objects of individual ownership, other 
than res mancipi, were the only things allowed to pass in complete 
ownership (pleno jure) simply by tradition, 19. 

This informal mode of alienation did not, like mancipatio, in jure 
cessio, and usucapio, belong to Jus Civile, but to Jus Gentium, 65 ; 
and was of later introduction than these. 

The tradition or informal delivery of some res nee mancipi must, 
however, have been common from the earliest times, though such 
tradition would have been regarded at first merely as a delivery of 
possession, to be protected by the law of theft, not as a title of 
ownership, to be asserted by vindicatio. At a later period, however, 
in order to facilitate commerce, tradition became by the influence of 
jus gentium a mode of acquiring ownership in things which did not 
belong to the privileged class of res mancipi. By tradition, which is 
a transfer of possession, ownership may be also transferred, if the trans- 
feror is himself owner; otherwise conformably to the principle 'Nemo 
plus juris transferre potest, quam ipse habet ' possession only passes, 
bona fide possession, if the transferee knows nothing of his defective 
title, mala fide, if he is aware of it. If we consider Surrender before 
a Magistrate, Mancipation, Tradition, we shall see that they are 
only three forms of one identical title, Alienation. The substance 
or essence of the title, the intention on the one side to transfer 
property, on the other to accept ;.t, is the same in all three ; it is 
only the adventitious, or accidental, or evidentiary portion of the 
title in which they differ. 

Although delivery of possession, like the solemnities of manci- 
pation and surrender, is, as compared with the will or intention of 
the parties, only an evidentiary and declaratory part of the title ; 
yet both parcels, delivery of possession, as well as agreement, are 
indispensable in the transfer of ownership. ' Traditionibus et usu- 
capionibus dominia rerum, non nudis pactis transferuntur,' Cod. 
2, 3, 20. ' Tradition and usucapion, not bare agreement, operate as 
a transfer of ownership.' Tradition, which is only applicable to 



138 DE ADQVIRENDO RERVM DOMINIO [n. 14a-27. 

corporeal things, is usually effected by some physical act of appro- 
priation, but it may take place without any such actual delivery 
being made at the time. This occurs when a vendor agrees to hold 
the property he sells on account of, or as agent of, the purchaser 
(constitutum possessorium), or when a person already holding a thing 
on account of the vendor, e. g. as a deposit, or loan, agrees to purchase 
it (traditio brevi manu). (Inst. 2, 1, 44.) 

We have spoken of tradition as a title whereby ownership was 
acquired. Tradition, however, was only an element, usually the 
final element, of the complex mode of acquisition, to which it gives 
its name. To be capable of passing property, delivery must be 
accompanied by another element, usually an antecedent element, 
some contract of sale or other legal ground, which is evidence of an 
intention to aliene. ' Nunquam nuda traditio transfert dominium, 
sed ita si venditio vel aliqua justa causa praecesserit, propter quam 
traditio sequeretur,' Dig. 41, 1, 31 pr. It is clear that bare 
delivery, or transfer of physical control, without any further ele- 
ment of Title, cannot pass Dominium, for in Loan for Use (commo- 
datum) such transfer merely passes what may be called Detention 
without Possession ; in Pledge (pignus) it passes what may be called 
derivative Possession ; in Deposit it usually passes Detention alone, 
but sometimes Possession also, though in this case also it is derivative 
Possession, not Possession of the thing as one's own. (4 138-170, 
comm.) The cases in which Ownership (Dominium) is passed by 
Tradition may be reduced to three classes, traditio donandi animo, 
traditio credendi animo, and traditio solvendi animo. In the first, 
it simply confers ownership on the donee ; in the second, it confers 
ownership on the transferee, and subjects him to an obligation ; in 
the third, it confers ownership on the transferee, and discharges the 
transferor of an obligation. In the two latter cases, i. e. tradition by 
way of loan, as of money (mutui datio), and tradition by way of pay- 
ment (solutio), the disposition or justa causa accompanying tradition 
contains much thatis unessential to the transfer of dominium or owner- 
ship, the only absolutely essential element being the intention of the 
parties to convey and take dominium. In Donation the justa causa tra- 
ditionis consists solely of this essential element. The justa causa, then, 
which must accompany delivery, must involve the animus or voluntas 
transferendi dominii, and this, apparently, is given as the whole 
of the matter in a passage of Gaius quoted in Digest : ' Hae quoque 
res, quae traditione nostrae fiunt, jure gentium nobis adquiruntur ; 
nihil enim tarn conveniens est naturali aequitati quam voluntatem 
domini volentis rem suam in alium transferre ratam haberi,' Dig. 
41, 1, 9, 3. Tradition is a mode of acquisition, 'in accordance with 
Jus Gentium, for it is a plain dictate of natural justice, that the 



14 a-27.] RERVM C. ADQVISITIONES CIVILES 139 

will of an owner to transfer his ownership to another should be 
allowed to take effect.' 

In one case, as we have seen, the operation even of contract and 
delivery combined was limited by the Twelve Tables, namely, in 
Sale. Hence it came about that tradition did not operate a trans- 
mutation of property without a further condition payment of the 
purchase money, unless the sale is intended to be a sale on credit, 
or satisfaction is made to the vendor in some way. Inst. 2, 1, 41. 
Delivery sometimes precedes the intention to transfer, for instance, in 
a conditional sale ; in which case the transfer of property may be sus- 
pended until the condition is fulfilled. The intended transferee may 
be an incerta persona, for instance, when money is scattered among 
a mob by a praetor or consul (missilium jactus). Inst. 2, 1, 46. 

Tradition in Roman law was never fictitious ; it was always an 
actual delivery of a power of physical or corporeal control, so the de- 
livery of the keys of a house is not something symbolical or fictitious, 
but a real transfer of a power of exercising dominion. The restriction 
of tradition, as a mode of acquiring ownership, to res nee mancipi 
had previously to the time of Gaius lost much of its importance, the 
Praetor protecting one to whom a res mancipi, such as land, had 
been delivered, as if Quiritarian ownership of it had been obtained 
by usucapion, 41. In Justinian's time Tradition had entirely super- 
seded the civil titles of surrender before the magistrate and manci- 
pation : the ancient distinction between res mancipi and res nee 
mancipi being no longer in existence. 

21. This section contains the clearest statement which we possess 
of the technical distinction between the two classes of provinces 
instituted by Augustus. Those which were not under the direct 
control of the Princeps were technically under the control of the 
Senate and People (compare Dio Cassius, liii. 12) ; but, as the People 
was mainly represented by the Senate, they are often spoken of as 
Senatorial Provinces. The provinces of Caesar were far more 
numerous ; about the time of Gaius they numbered thirty-one 
twenty-one being governed by Legati pro praetore, nine by Pro- 
curators, and Egypt by its Praefect while the Public Provinces 
under Proconsuls numbered but eleven. See Marquardt, Staatsver- 
waltung, i. p. 494. The attempt to keep these departments distinct 
was a failure ; and the control of the Public Provinces by the Prin- 
ceps was now very considerable, especially in matters of jurisdiction. 
But the technical difference between the two kinds of provinces was 
still preserved in the reign of Marcus Aurelius. Thus we find that 
Emperor causing provinces to be transferred from the one to the 
other category in obedience to military considerations, and asking 
the Senate to vote money to him from the Aerarium, the treasury 



140 DE ADQVIRENDO RERVM DOMINIO [n. 28-39. 

which contained the dues from the Public Provinces (Vita Marci, 22, 
Dio Cassius, Ixxi. 33). 

During the Kepublic the taxes paid by provincials had been 
called stipendium a word which points to the view originally taken 
that these revenues were meant to meet military expenses ; for 
stipendium means pay for the army. During the Principate the 
word tributum came also to be used for imperial taxes ; but this 
passage of Graius shows that stipendium was "still employed for the 
dues paid by the Public Provinces. The distinction between stipen- 
diary and tributary provinces is perhaps based on a difference in 
the mode of collecting, not of levying, the taxes. It seems that in 
the Public Provinces the taxes were still collected by the local 
governments themselves and paid to the Quaestors, whereas in 
Caesar's Provinces the Procurators came into direct contact with the 
tax-payer. The mode of collection was in the second case direct, 
in the first indirect. It is also possible that the ownership of the soil 
in Caesar's Provinces was regarded as vested in the Princeps, that 
of the soil in the Public Provinces as vested in the Eoman state (see 
Mommsen, Staatsrecht, ii. p. 1088), and this distinction may be im- 
plied in the two classes of provincialia praedia mentioned by Gaius. 

The mode of taxation was uniform for the whole Empire, and the 
assessments were made at intervals by the Emperor's officials. The 
taxes were either imports on the land (tributum soli) or on the person 
(tributum capitis). The land-tax was in most provinces paid either 
in money or grain, more usually in the former, although in certain 
minor districts it was delivered in the form of other produce. The 
personal tax might be one on professions, income, or movable 
property. Occasionally it was a simple poll-tax, this latter burden 
being probably imposed on those provincials whose property fell 
below a certain rating. 

24. The legati Caesaris or Presidents of imperial provinces had 
originally on jurisdiction to preside over legis actio, but this was 
afterwards conferred upon them, Tac. Ann. 12, 60. 

26. Gaius probably explained in this place the effect of tradition 
of a res mancipi, 41, and then went on to treat of the jus commercii. 
Ulp. 19, 4, 5 Mancipatio locum habet inter cives Eomanos et Latinos 
coloniariosLatinosque Junianos eosque peregrines quibus commercium 
datum est. Commercium est emendi vendendique invicem jus. 

RERVM INCORPORALIVM ADQVISITIONES CIVILES. 

28. (Res) incorporates tra- 28. Incorporeal things are 

ditionem non recipere mani- obviously incapable of transfer by 

festum est. delivery of possession (traditio). 

29. Sed iura praediorum 29. But while before a magis- 



ii. 28-39.] RERVM INC. ADQVISITIONES CIVILES 141 



urbanorum in iure cedi (tan- 
turn) possunt ; rusticorum uero 
etiam mancipari possunt. 

^ 

30. Vsusfructus in iure 
cessionein tantum recipit. nam 
dominus proprietatis alii usum- 
fructum in iure cedere potest, 
ut ille usumfructum habeat et 
ipse nudam proprietatem reti- 
neat. ipse ususfructuarius in 
iure cedendo domino proprie- 
tatis usumfructum efficit, ut 
a se discedat et conuertatur 
in proprietatem ; alii uero in 
iure cedendo nihilo minus ius 
suum retine; creditur enim 
ea cessione nihil agi. 

31. Sed haec scilicet in 
| Italicis praediis ita sunt, quia 
j et ipsa praedia mancipationem 
et in iure cessionem recipiunt. 
alioquin in prouincialibus prae- 
diis siue quis usumfructum siue 
ius eundi agendi aquamue du- 
cendi uel altius tollendi aedes 
aut non tollendi, ne lumini- 
bus uicini officiatur, ceteraque 
similia iura constituere uelit, 
pactionibus etsiipulationibus id 
efficere potest, quia ne ipsa qui- 
dem praedia mancipationem aut 
{^71} iure cessionem recipiuni. 
32. Bed cum ususfructus 
et hominum et ceterorum ani- 
malium constitui possit, intel- 
legere debemus horum usum- 

r & , . ... 

iructum etiam. in prouincns per 

in iure cessionem constitui posse. 

| 33. QuocZ autem diximus 

! usumfructum in iure cessionem 

/ tantum recipere, non est temere 

dictum, quamids etiam per 

mancipationem constitui possit 

eo quod in mancipanda pro- 

prietate detrahi potest; non 

enim ipse ususfructus manci- 



trate urban servitudes can only 
be created by surrender before a 
magistrate ; rural servitudes may 
either be acquired by this method 
or by mancipation. 

30. Usufruct can only be 
created by surrender. A usufruct 
surrendered by the owner of the 
property passes to the surrenderee, 
leaving the bare property in the 
owner. A usufruct surrendered 
by the usufructuary to the owner 
of the property passes to the latter 
and is merged in the ownership. 
Surrendered to a stranger it con- 
tinues in the usufructuary, for the 
surrender is deemed inoperative. 



31. These modes of creating 
usufruct are confined to estates in 
Italian soil, for only these estates 
can be conveyed by mancipa- 
tion or judicial surrender. On 
provincial soil, usufructs and 
rights of way on foot, horseback, 
and for carriages, watercourses, 
rights of raising buildings or not 
raising, not obstructing lights, 
and the like, must be created by 
pact and stipulation ; for the lands 
themselves, which are subject to 
these servitudes, are incapable 
of conveyance by mancipation or 
surrender before a magistrate. 

32. In slaves and other 
animals usufruct can be created 
even on provincial soil by sur- 
render before a magistrate. 



33. My recent statement that 
usufruct was only constituted by 
surrender before a magistrate was 
not inaccurate, although it may 
in this sense be created by man- 
cipation that we may mancipate 
the property and reserve the usu- 
fruct ; for the usufruct itself is 



142 DE ADQVIRENDO RERVM DOMINIO [n. 28-39. 



patur, sed cum in mancipanda 
proprietate deducatur, eo fit ut 
&pud alium ususfructus, apud 
alium proprietas sit. 



34. Hereditas quoque in 
iure cessionem tantum recipit. 

35. Nam si is, ad quern ab 
intestate legitimo iure pertinet 
hereditas, in iure earn alii ante 
aditionem cedat, id est ante- 
quam heres extiterit, proinde 
fit heres is cui in iure cesserit, 
ac si ipse per legem ad here- 
ditaiem uocatus esset ; post 
obligationem uero si cesserit, 
nihilo minus ipse heres per- 
manet et ob id creditoribus 
tenebitur^ debita uero pereunt 
eoque modo debitores heredi- 
tarii lucrum faciunt; corpora 
uero eius hereditatis proinde 
transeunt ad eum cui cessa est 
hereditas, ac si ei singula in 
iure cessa fuissent. 

36. Testamento autem 
scriptus heres ante aditam 
quidem hereditatem in iure 
cedendo earn alii nihil &git ; 
postea uero quam adierit si 
cedat,ea accidunt, quae proxime 
diximus de eo ad quern ab in- 
testato legitimo iure pertinet 
hereditas, si post obligationem 
(in) iure cedat. 

37. Idem et de necessariis 
heredibus diuersae scholae au- 
ctores existimant, quod nihil 
uidetur interesse utrum (ali- 
quis) adeundo hereditatem fiat 
heres, an inuitus existat ; quod 
quale sit, suo loco apparebii. 
sed nostri praeceptores putant 
nihil agefe necessarium here- 
dem, cum in iure cedat heredi- 
tatem. 



not mancipated, though in manci- 
pating the property the usufruct 
is reserved so that the usufruct 
is vested in one person and the 
property or ownership in another. 

34. Inheritances also are only 
alienable by surrender before a 
magistrate. 

35. If the person entitled by 
the statutory rules of the civil 
law of intestacy surrender the in- 
heritance before acceptance, that 
is to say, before his heirship is 
consummated, the surrenderee be- 
comes heir j ust as if he was en titled 
by agnation ; but if the agnate 
surrenders after acceptance, in 
spite of the surrender he con- 
tinues heir and answerable to the 
creditors, his rights of action 
beingextinguished and the debtors 
to the estate thus discharged of 
liability without payment, while 
the ownership in the corporeal ob- 
jects of the inheritance passes to 
the surrenderee just as if it had 
been surrendered in separate lots. 

36. The surrender of an in- 
heritance by a person instituted 
heir by will before acceptance is 
inoperative ; but after acceptance 
it has the operation just ascribed 
to the agnate's surrender of an 
intestate succession after accept- 
ance. 



37. And so has a surrender 
by a necessary successor according 
to the authorities of the other 
school, who maintain that it 
seems immaterial whether a man 
becomes heir by acceptance or 
whether he becomes heir ipso 
jure, irrespective of his intention 
(a distinction that will be ex- 
plained in its proper place) : ac- 
cording to my school a necessary 
heir's surrender of the inheri- 
tance is inoperative. [3 85.] 



ii. 28-39.] RERVM INC. ADQVISITIONES CIVILES 143 

38. Obligationes quoquo 38. Obligations, in whatever 

modo contractae nihil eorura way contracted, are incapable of 

recipiunt. nam quod mini ab transfer by either method. For 

aliquo debetur, id si uelim tibi if I wish to transfer to you my 

deberi, nullo eorum modo qui- claim against a third person, none 

bus res corporales ad alium of the modes whereby corporeal 

transferuntur id efficere pos- things are transferred is effective : 

sum, sed opus est, ut iubente bu * * k "JJ""? 1 St* ^V 7 

me tu ab eo stipuleris ; quae order the debtor should bind him- 

/E ., , r vi self to you by stipulation : where- 
res efficit ut a me hberetur et m debtor is discharged of 

mcipiat tibi teneri ; quae dicitur h f g del / to me and becomes liable 

nouatio obligations. to you . which transformation is 

39. Sine hac uero nouatione called novation of an obligation, 
non poteris tuo nomine agere, 39. In default of such nova- 

sed debes ex persona mea quasi tion he cannot sue in his own 

cognitor aut procurator nieus name, but must sue in my name 

experiri. as mv cognitor or procurator. 

28. So incorporeal hereditaments in English law were said to 
lie in grant, not in feoffment, i. e. to be only conveyable by deed, or 
writing under seal ; whereas corporeal hereditaments were convey- 
able by feoffment, i. e. by livery of seisin or delivery of possession. 

30. Inalienability was no peculiar characteristic of Usufruct and 
other personal servitudes. Alienation of rights, or singular succes- 
sion as opposed to inheritance or universal succession, was the excep- 
tion, not the rule. Dominion over res singulae was alienable, but 
almost all other rights were intransferable. If we except the case of 
hereditas legitima delata, 35, hereditas, as we shall see, was inalien- 
able : and what is said of Urban and Eural praedial servitudes, 29, 30, 
refers to their creation, not to their alienation. In the law of Per- 
sons, Patria potestas, 1 134, and Tutela in some cases, 1 168, 
could be transferred but only by surrender before a magistrate (in 
jure cessio), i. e. a process which feigned that there was no transfer. 
Manus and mancipium could be extinguished but not transferred 
[Ihering, 32], except that, apparently, mancipium could be retrans- 
ferred to the natural parent or ma_cipator, 1 132. 

31. It appears that convention (pactio et stipulatio) alone un- 
accompanied by tradition or quasi-tradition was capable of creating 
a right analogous to a Roman servitude in provincial land, to which 
in jure cessio and mancipatio were inapplicable, in opposition to the 
principle of Roman law, as stated by some modern writers, that mere 
agreement can only create at the utmost an obligation (jus in perso- 
nam), and in order to create a jus in rem must be accompanied by de- 
livery of possession. But in our authorities this principle is confined 
to res corporales, which alone admit of real tradition. Exceptional 
instances in which agreement without any further accompaniment 



144 DE ADQVIRENDO RERVM DOMINIO [n. 28-39. 

creates a jus in rem, that is, transfers either dominion or jus in 
re aliena, arehypotheca (see 3 91, comm.) and societas omnium bono- 
rum (see 3 148). Vangerow, however, holds, 350, that pactio and 
stipulatio could not create a genuine servitus, enforceable against the 
servient person or tenement, but only an Obligatio, enforceable against 
the contracting party and his heirs : that in the time of Gaius this 
was all that could be accomplished ; but that afterwards, when quasi- 
traditio of res incorporalis was recognized as practicable, genuine 
Servitudes could be thus constituted. The distinction between 
solum Italicum and provinciale was subsequently abolished, and 
in jure cessio and mancipatio disappeared. In the Institutes of 
Justinian we are told that both praedial servitudes (Inst. 2, 3, 4) and 
the personal servitude of usufruct (Inst. 2, 4, 2) are created by pacts 
and stipulations, nothing being there said of quasi-traditio, as a con- 
dition of acquiring servitudes. The combination of pact and stipula- 
tion for the purpose has been explained as an amalgamation of foreign 
and Koman law, a mere pact being recognized by the former, but 
unless embodied in a stipulation unenforceable by the latter (cf. Sohm, 
69 ; Dernburg, Pandekten, 251, n. 16). 

32. In accordance with the principle that movables are personal, 
a Roman could convey movable property by conveyances confined 
to citizens, wherever such property was situated. 

The servitus altius tollendi, or the right of increasing the height 
of an edifice, is at first sight very enigmatical. My right of increas- 
ing the height of my building, and thus obstructing the lights of my 
neighbour, would seem to be part and parcel of my unlimited rights of 
dominion : and, if a dispute arose, one would think that the burden 
of proof would be on my neighbour, who would have to prove a 
special limitation of my rights as owner of a praedium serviens and 
a special right residing in himself as owner of a praedium dominans : 
that is to say, that instead of my having to prove a servitude or jus 
altius tollendi, my neighbour would have to prove a servitude or jus 
altius non tollendi. Cum eo, qui tollendo obscurat vicini aedes, quibus 
non serviat, nulla competit actio, Dig. 8, 2, 9. 'A man who by 
building obscures his neighbour's lights, unless subject to a servitude, 
is not actionable.' Altius aedificia tollere, si domus servitutem non 
debeat, dominus ejus minime prohibetur, Cod. 3, 34, 8. 'A man 
cannot be prevented from raising the height of his house unless it is 
subject to a servitude.' The same rule is laid down in English 
law. The following is perhaps the most probable solution of the 
problem : 

The extinction of Rural and Urban servitudes was governed by 
different rules. The extinction of a Rural servitude was more easily 
accomplished than that of an Urban servitude : it was effected by 



ii. 28-39.] RERVM SINGVLARVM ADQVISITIONES 145 

simple non-user (non utendo) on the part of the dominant property for 
a period, originally, of two years, afterwards of ten. The extinction 
of an Urban servitude demanded, besides the negative omission of 
use on the part of the dominant, a positive possession of freedom 
(usucapio libertatis) on the part of the servient owner. Gaius (ad 
Edictum Provinciale, Dig. 8, 2, 6) thus explains the difference : in 
a servitus ne amplius tollantur aedes, or ne luminibus aedium 
officiatur, if the windows of the dominant house are closed with 
masonry there is a non-usus of the servitude on the part of the 
dominant owner ; if at the same time the height of the servient 
house is raised there is possession of freedom on the part of the 
servient owner. Or in a servitus tigni immissi, if the dominant 
owner removes the beam from his neighbour's wall there is on his 
part non-usus ; if the servient owner builds up the orifice in 
which the beam was inserted, there is on his part usucapio liber- 
tatis. Originally Servitudes, like Dominium, could be acquired by 
Usucapion ; and as Usucapion was applied to the extinction of Urban 
Servitudes, it was regarded by the jurists as a mode of acquiring or 
of creating an antagonistic servitude. On the extinction of a Rural 
servitude, the servient property simply recovered its original dimen- 
sions : an Urban servitude was a permanent diminution of the 
servient property, and on its extinction the servient property, instead 
of dilating to its original size, recovered what it had lost in the shape 
of the annexation of a contrary servitude. When at an unknown 
date the Usucapion of servitudes was abolished by a lex Scribonia, 
an exception was made in favour of these Contrary servitudes, which 
in fact were not genuine servitudes, but merely the expression of the 
greater difficulty of extinguishing an Urban servitude. Libertatem 
servitutium usucapi posse verius est, quia earn usucapionem sustulit 
lex Scribonia, quae servitutem constituebat, non etiam earn, quae liber- 
tatem praestat sublata servitute, Dig. 41, 3. 4, 28. 'The better view is 
that extinction of servitude by usucapion is admissible, for the usuca- 
pion abolished by the lex Scribonia was usucapion whereby a servitude 
is constituted, not that which liberates by extinction of servitude. ' 
Thus he who laboured under a disability of building (jus altius non 
tollendi) was regarded on its extinction as having acquired the oppo- 
site easement, jus altius tollendi ; he w r ho was relieved of the servitus 
ne luminibus officiatur was regarded as acquiring a jus officiendi 
luminibus vicini ; he who was relieved from the servitus stillicidii 
avertendi in tectum vel aream vicini was deemed to acquire a jus stil- 
licidii non avertendi, Gaius ad Edictum Provinciale, Dig. 8, 2, 2. It 
does not appear that the ordinary requisites of Usucapio, titulus and 
bona fides ( 61, comm.), were required in this usucapio libertatis. 
In usucapio libertatis, a right being acquired, the ten years are 



WHITTUCK 



146 DE ADQVIRENDO RERVM DOMINIO [ir. 40-61. 

complete on the commencement of the last day : in non-usus, a right 
being lost, the ten years are not complete till the last day is termin- 
ated. 

The three servitudes, ne prospectui officiatur, ne luminibus officiatur. 
ne altius tollatur, are similar in character, but differ in their degree of 
extension. The servitus ne luminibus officiatur is not so extensive as 
the servitus ne prospectui officiatur, for that may amount to an obstruc- 
tion of prospect which does not cause a diminution of light, Dig. 8, 2, 
1 5 : but is wider than servitus altius non tollendi, because light may be 
intercepted by other causes than buildings, by plantation, for instance, 
though building is the principal means of interception. 

Servitus luminum has been already noticed, 1-14, comm., as 
apparently identical with jus luminis immitteiidi, i. e. the right of 
having a window in a neighbour's wall. Luminum servitute con- 
stituta id adquisitum videtur ut vicinus lumina nostra excipiat, 
Dig. 8, 2, 4. 'The servitude of Lights entitles the owner of the 
dominant house to have a window in the wall of his servient 
neighbour.' 

It appears from the above explanation that the servitus luminum 
and the servitus ne luminibus officiatur belong to different categories, 
for the servitus luminum, like the jus officiendi luminibus, belongs 
to the category of jus habendi ; while the servitus ne luminibus 
officiatur belongs to the category of jus prohibendi. 

34. Of. 3 85-87. The statement that an inheritance is not 
mancipable may seem inconsistent with what we are afterwards told 
of the testament by bronze and balance, 102. There is, however, 
no real inconsistency. The subject mancipated in the will by bronze 
and balance, though a universitas, was not an inheritance there was 
no inheritance to mancipate, for nemo est heres viventis but the 
collective rights familia, patrimonium of the testator. 

38. The mode of transferring obligations may be more properly 
considered hereafter, when we examine the titles by which Jus in 
personam originates or terminates, 3 155-162, comm. Gaius glanced 
at the titles to Hereditas and Obligatio because he was treating of 
Res incorporales under which they are included ; but he should 
have abstained from discussing Obligatio because he is now dealing 
with Jus in rem, and he should have abstained from discussing 
Hereditas because he is now dealing with Res singulae. 

'40. Sequitur ut admonea- 40. We must next observe 

mus apud peregrines quidem that for aliens there is only one 

unum esse dominium ; nam ownership and only one owner at 

aut dominus quisque est, aut the same time of a thing, and so 

.dominus non intellegitur. quo it was in ancient times with the 

iure etiam populus Romanus people of Rome, for a man had 



II. 40-61.] 



DE VSVCAPIONIBVS 



147 



olim utebatur : aut enim ex 
iure Qmritium unusquisque 
dominus erat, aut non intelle- 
gebatur dominus. sed postea 
diuisionem accepit dominium, 
ut alius possit esse ex iure 
Quiritium dominus, alius in 
bonis habere. 

41. Nam si tibi rem man- 
cipi neque mancipauero neque 
in iure cessero, sed tan turn 
tradidero, in bonis quidein tuis 
ea res efficitur, ex iure Quiri- 
tium uero mea permanebit, 
donee tu earn possidendo usu- 
capias ; semel enim inpleta 
usucapione proinde pleno iure 
incipit, id est et in bonis et ex 
iure Quiritium tua res esse, ac 
si ea mancipata uel in iure 
cessa (esset. 

42. Vsucapio antem) mo- 
bilium quidem rerum anno 
conpletur, fundi uero et aedium 
biennio ; et ita lege xn tabu- 
larum cautum est. 

Inst. 2, 6 pr. 

43. Ceter%m etiam earum 
rerum usucapio nobis conpetit, 
quae non a domino nobis tra- 
ditae fuerint, siue mancipi sint 
eae res siue nee mancipi, si 
modo eas bona fide acceperi- 
mus, cum crederemus eum qui 
traderet dominum esse. 

44. Quod ideo receptum 
uidetur, ne rerum dominia diu- 
tius in incerto essent, cum suf- 
ficeret domino ad inquirendam 
rem suam anni aut biennii 
spatium, quod tempus ad usu- 
capionem possessor! tributum 
est. Inst. 1. c. 



either quiritary dominion or none 
at all. They afterwards decom- 
posed dominion so that one person 
might have quiritary ownership 
of an object of which another 
person had bonitary ownership. 



41. For if a mancipable thing 
is neither mancipated nor surren- 
dered before a magistrate but 
simply delivered to a person, the 
bonitary ownership passes to the 
alienee, but the quiritary owner- 
ship remains in the alienor until 
the alienee acquires it by usu- 
capion ; for as soon as usucapion 
is completed, plenary dominion, 
that is, the union of bonitary 
and quiritary ownership, vests in 
the alienee just as if he had ac- 
quired the thing by mancipation 
or surrender before a magistrate. 

42. Usucapion of movables 
requires a year's possession for 
its completion, of land and houses, 
two years' possession, a rule which 
dates from the law of the Twelve 
Tables. 

43. Quiritary ownership of a 
thing may also be acquired by 
usucapion, when possession of it 
has been transferred to one by a 
person who is not the owner of 
it, and this is the case in things 
either mancipable or not mancip- 
able, if they are received in good 
faith by a person 'who believes 
the deliverer to be owner of them. 

44. The reason of the law 
appears to be the inexpediency of 
allowing ownership to be long 
unascertained, the previous owner 
having had ample time to look 
after his property in the year or 
two years which must elapse 
before usucapion is complete. 



^45. Sed aliquando etiamsi 45. Some things, however, 
maxime quis bona fide alienam notwithstanding the utmost good 



L a 



148 DE ADQVIRENDO RERVM DOMINIO [n. 40-61. 



rem possideat. non tamen ilK 
usucapio procedit, uelut si quis 
rem furtiuam aut ui possessam 
possideat; nam furtiuam lex 
xii tabularum usucapi prohibet, 
ui possessam lex lulia et Plau- 
tia. Inst. 2, 6, 1. 

46. Item prouincialia prae- 
dia usucapioftem non recipiunt. 

47. (Item olim) mulieris, 
quae in agnatorum tutela erat, 
res mancipi usucapi non pote- 
rant, praeterquam si ab ipsa 
tutore (auctore) traditae es- 
sent ; idque ita lege xn tabu- 
larum cautum erat. 

48. Item liberos homines 
et res sacras et religiosas usu- 
capi non posse manifestum est. 
( 49. Quod ergo uulgo dici- 
tur furtiuarum rerum et ui 
possessarum usucapionem per 
legem xii tabularum problbi- 
tam esse, non eo pertinet, ut ne 
ipse fur quiue per uim possidet 
usucapere possit(nam huic alia 
ratione usucapio non conpetit, 
quia scilicet mala fide possidet) ; 
sed nee ullus alius, quamquam 
ab eo bona fide ernerit, usuca- 
piendi ius habeat. 

Inst. 2,6,3. 

50. Vnde in rebus mobi- 
libus non facile procedit, ut 
'bonae fidei possessor i usucapio 
ccwpetat, quia qui alienam rem 
uendidit et tradidit furtum 
committit ; idemque accidit 
etiam si ex alia causa tradatur. 
sed tamen hoc aliquando aliter 
se habet ; nam si heres rem de- 
functo commodatam aut loca- 
tam uel apud eum depositam 
existimans earn esse heredita- 
riam uendiderit aut donauerit, 



faith of the possessor, cannot be 
acquired by usucapion, things, 
for instance, which have been 
stolen or violently possessed, 
stolen things being declared in- 
capable of usucapion by the law 
of the Twelve Tables, and things 
violently possessed by the lex 
Julia and Plautia. 

46. So,too,provinciallandand 
houses are incapable of usucapion. 

47. Formerly, when a woman 
was under her agnate's guardian- 
ship, her mancipable things were 
not subject to usucapion, unless 
she herself delivered possession 
of them with her guardian's 
sanction, and this was an ordi- 
nance of the Twelve Tables. 

48. Free men, also, and things 
sacred or religious, are obviously 
not susceptible of usucapion. 

49. The common statement 
that in things stolen or violently 
possessed, usucapion is barred 
by the law of the Twelve Tables, 
means, not that the thief or vio- 
lent dispossessor is incapable of 
acquiring by usucapion, for he is 
barred by another cause, his want 
of good faith ; but that even a 
person who purchases in good 
faith from him is incapable of 
acquiring by usucapion. 



50. Accordingly, in things 
movable a possessor in good faith 
cannot easily acquire ownership by 
usucapion, because he that sells 
and delivers possession of a thing 
belonging to another is guilty of 
theft. However, sometimes this 
is otherwise, for an heir who be- 
lieves a thing lent or let to, or 
deposited with, the deceased to be 
a portion of the inheritance, and 
sells it or gives it away, is not 
guilty of theft : again, the usu- 
fructuary of a female slave who 



n. 40-61.] 



DE VSVCAPIONIBVS 



149 






furtum non committit ; item si 
is, ad quern ancillaeususfructus 
pertinet, partum etram suum 
esse credens uendiderit aut do- 
nauerit, furtum non committit ; 
/urtum enim sine adfectu fu- 
randi non committitur. aliis 
quoque modis accidere potest, 
ut quis sine uitio furti rem 
alienam ad aliquem transferat 
et efficiat, ut a possessore usu- 
capiatur. Inst. 2, 6, 3 and 4. 

51. Fundi quoque alieni 
potest aliquis sine ui posses- 
sionem nawcisci, quae uel ex 
neglegentia domini uacet, uel 
quia dominus sine successore 
decesserit uel longo tempore 
afuerit ; qu&m si ad alium bona 
fide accipientem transtulerit, 
poterit usucapere possessor ; et 
quamuis ipse, qui uacantem 
possessionem nactus est, intel- 
legat alienum esse func^um, ta- 
fiien nihil hoc bonae fidei pos- 
sessor! ad usucapionem noce, 
(citm) inpro&ata sit eorum sen- 
ientia, qui putauerint fvrtiuum 
fund um fieri posse. Inst. 2, 6, 7. 

52. Rursus ex contrario ac- 
cidit ut qui sciat alienam rem 
se possidere usucapiat, ueluti 
si rem hereditariam, cuius pos- 
sessionem heres nondum nactus 
est, aliquis possederit ; nam ei 
concessum (est usu)capere, si 
modo ea res est quae recipit 
usucapionem ; quae species pos- 
sessionis et usucapionis pro 
herede uocatur. 

53. Et in tantum haec usu- 
capio concessa est, ut et res 
quae solo continentur anno 
usucapiantur. 

54. Quare autem hoc casu 
etiavi soli rerum annua con- 
stituta sit usucapio, ilia ratio 



believes her offspring to be his 
property and sells it or gives it 
away, is not guilty of theft ; for 
there can be no theft without un- 
lawful intention : and similarly 
other circumstances may prevent 
the taint of theft from attaching 
to the delivery of a thing belong- 
ing to another, and enable the 
receiver to acquire by usucapion. 



51. Possession of land belong- 
ing to another may be acquired 
without violence, when vacant by 
neglect of the owner, or by his 
death without leaving a suc- 
cessor, or his long absence from 
the countiy, and an innocent 
person to whom the possession 
is transferred may acquire the 
property by usucapion; for though 
the original seizer of the vacant 
possession knew that the land 
belongs to another, yet his know- 
ledge is no bar to the usucapion 
of the innocent alienee, as it is 
no longer held that theft can be 
committed of land. 

52. On the other hand, know- 
ledge that one is acquiring pos- 
session of another person's pro- 
perty (mala fides) does not al- 
ways prevent usucapion, for any 
one may seize a portion of an 
inheritance of which the heir has 
not yet taken possession and 
acquire it by usucapion, provided 
it is susceptible of usucapion, and 
he is said to acquire by title of 
quasi heir. 

53. With such facility is this 
usucapion permitted that even 
land may be thus acquired in a 
year. 

54. The reason why even land 
in these circumstances demands 
only a year for usucapion is, that 



150 DE ADQVIRENDO RERVM DOMINIO [n. 40-61. 



est, quod olim rerum heredita- 
riarum possessions uelvt ipsae 
hereditates usucapi credeban- 
tur, scilicet anno, lex enim 
xn tabularum soli quidem res 
biennio usucapi iussit, ceteras 
uero anno, ergo hereditas in 
ceteris rebus uidebatur esse, 
quia soli non est quia neque 
corporalis est. (et} quamuis 
postea creditum sit ipsas here- 
ditates usucapi non posse, ta- 
men in omnibus rebus beredi- 
tariis, etiam quae solo tenentur, 
annua usucapio remansit. 



55. Quare autem omnino 
tarn inproba possessio et usu- 
capio concessa sit, ilia ratio est, 
quod uoluerunt ueteres matu- 
rius hereditates adiri, ut essent 
qui sacra facerent, quorum illis 
temporibus sujnina obseruatip 
fait, et ut creditores haberent 
a quo suum consequerentur. 

56. Haec autem species 
possessionis et usucapionis 
etiam lucratiua uocatur ; nam 
sciens quisque rem alienam 
lucri facit. 

57. Sed hoc tempore mm 
non est luoratiua. nam ex 
auctoritate Hadriani senatus- 
consultum factum est u^ tales 
usucapione$ reuocarentur. et 
ideo potest heres ab eo qui rem 
usucepit hereditateni petendo 
proinde earn rem consequi, 
atque si usucapta non essei. 

58. Necessario tamen herede 
extante nihil ipso iure pro 
herede usucapi potest. 



in ancient times the possession 
of property belonging to the in- 
heritance was held to be a 
means of acquiring the inheri- 
tance itself, and that in a year : 
for while the law of the Twelve 
Tables fixed two years for the 
usucapion of land and one year 
for the usucapion of other things, 
an inheritance was held to fall 
under the category of ' other 
things,' as it is neither land nor 
corporeal : and though it was 
afterwards held that the inheri- 
tance itself was not acquirable by 
usucapion, yet the property be- 
longing to the inheritance, includ- 
ing land, continued acquirable by 
a year's possession. 

55. The motive for permitting 
at all so unscrupulous an acqui- 
sition was the wish of the ancient 
lawyers to accelerate the accept- 
ance of inheritances, and thus pro- 
vide persons to perform the sacred 
rites, to which in those days the 
highest importance was attached, 
and also to secure some one from 
whom creditors might obtain 
satisfaction of their claims. 

56. This mode of acquisition 
is sometimes called lucrative usu- 
capion, for the possessor know- 
ingly acquires the benefit of 
another's property. 

57. In the present day, how- 
ever, this kind of usucapion is 
not lucrative, for the Senate on 
the motion of Hadrian decreed 
that such usucapions are re- 
vocable, and accordingly where 
a person thus acquired a thing by 
usucapion, the heir can sue him 
by hereditatis petitio and recover 
the thing just as if the usuca- 
pion had never been completed. 

58. The existence of a neces- 
sary heir excludes ipso jure the 
operation of this kind of usuca- 
pion. 



ii. 40-61.] 



DE VSVCAPIONIBVS 



151 



59. There are other condi- 
tions under which a knowledge 
of another's ownership is no bar 
to usucapion. After a fiduciary 
mancipation or surrender before 
a magistrate of his property, if 
the owner himself should become 
possessed of it, he recovers his 
ownership even over land in the 
period of a year, by what is called 
usureception or a recovery by 
possession, because a previous 
ownership is thereby recovered 
by usucapion. 

60. The fiduciary alienee is 
either a creditor holding the 
property as a pledge or a friend 
to whom the property is made 
over for safe custody : in the 
latter case the ownership is always 
capable of usureception : but in 
that of a creditor, though the 
owner can always thus re-acquire 
after payment of the debt, before 
payment of the debt he can only 
re-acquire provided he has not 
obtained the thing of his creditor 
on hire or got possession of it 
by request and licence ; in this 
case he re-acquires by a lucrative 
usucapion. 

61. Again, the owner of a 
thing mortgaged to the people and 
sold for non-payment of the mort- 
gage debt may re-acquire it by 
possession, but in this case, if it 
is land, usucapion is biennial : 
and this is the meaning of the 
saying, that after praediatura (a 
public sale) land is recoverable 
by (biennial) possession, a pur- 
chaser from the people being called 
praediator. 

40, 41. Roman law originally only recognized one kind of 
ownership, called emphatically, quiritary ownership. Gradually, 
however, certain kinds of ownership were recognized which, though 
they failed to satisfy all the elements of the definition of quiritary 
dominion, were practically its equivalent, and received from the 
courts a similar protection. These kinds of ownership might fall 



59. Adhuc etiam ex aliis 
causis sciens quisque rem alie- 
nam usucapit. cam qui rem 
alicui fiduciae causa manciple 
dederit uel in iure cesserit, si 
eandem ipse possederit, potest 
usucapere, anno scilicet, 
{etiam} soli si sit. quae spe- 
cies usucapionis dicitur usure- 
ceptio, quia id quod aliquando 
habuimus recipimus per usu- 
capionem. 

60. Sec? fiducia contrahitur 
aut cum creditore pignoris iure, 
aut cum amico, quo tutius no- 
strae res apud eum sint ; et 
siquidem cum amico contracta 
sit fiducia, sane omni modo 
conpetit ususreceptio ; si uero 
cum creditore, soluta quidem 
pecunia omni modo conpetit, 
nondum uero soluta ita demum 
conpetit, si neque conduxerit 
earn rem a creditore debitor, 
neque precario rogauerit, ut 
earn rem possidere liceret; quo 
casu lucratiua ususcapio con- 
petit. 

61. Item si rem obligatam 
sibi populus uendiderit eamque 
dominus possederit, concessa 
est ususreceptio ; sed hoc casu 
praedium biennio usurecipitur. 
et hoc est quod uulgo dicitur 
ex praediatura possessionem 
usurecipi ; nam qui mercatur 
a populo praediator appel- 



152 DE ADQVIRENDO RERVM DOMINIO [n. 40-61. 

short of quiritary ownership in three respects, (i) either in respect 
of the persons in whom they resided, (2) or of the objects to 
which they related, (3) or of the title by which they were 
acquired. 

(1) To be capable of quiritary ownership a man must have one 
of the elements of Roman citizenship. Jus quiritium, right 
quiritary, sometimes, indeed, denotes all the elements of civitas 
Romana, Roman citizenship (1 28, 35, comm.). Beneficio princi- 
pal! Latinus civitatem Romanam accipit si ab imperatore jus 
quiritium impetraverit, Ulpian 3, 2. But the only element of 
citizenship required for quiritary ownership was commercium, and 
as we have seen that the Latinus possessed commercium with- 
out connubium, the Latinus was capable of quiritary dominion. 
The alien (peregrinus) on the contrary was incapable, except by 
special privilege : yet he might have ownership, which he acquired 
by titles of jus gentium, e. g. tradition, occupation, accession, &c., 
and could maintain by a real action in the court of the praetor 
peregrinus or praeses provinciae. 

(2) Provincial land was not capable of quiritary ownership. 
Originally, indeed, private ownership appears to have been confined 
to things capable of being taken by the hand (mancipatae), that is 
to movables ; and lands were only subject to public dominion or 
were the common property of the gens. Private ownership, however, 
first invaded a portion of the land, the heredium, or hereditary 
homestead of the gentilis, and finally became a general institution ; 
and ager publicus, as opposed to ager privatus, almost ceased to 
exist on Italian soil. But in the provinces subsequently conquered, 
land continued to the end subject exclusively to public dominion ; 
and thus one of the essential features of feudal tenure, the exclusive 
vesting of absolute or ultimate dominion over land in the sovereign 
as overlord, a principle commonly supposed to have been first intro- 
duced into Europe by the invading German hordes, had already 
existed, though in a different form, over by far the greater portion 
of the Roman world. It is true that the provinces were divided into 
private possessions and public domains ; but private possessions as 
well as public domains were subject to a vectigal, and the tenants of 
the one and lessees of the other were equally devoid of absolute 
ownership. Rights over solum provinciale of a more or less limited 
kind were however acquirable, though not by titles of jus civile, and 
recoverable by real action, for which Gaius uses the terms possessio 
and ususfructus, 7. 

(3) Bonitary ownership was distinct both from an alien's ownership 
and from rights over provincial land : it may be defined as the 
property of a Roman citizen in a subject capable of quiritary 



ii. 40-61.] DE VSVCAPIONIBVS 153 

ownership, acquired in a way not known to the jus civile, but 
introduced by the praetor, and protected by his imperium or 
executive power. We have seen, for instance, that only non-man- 
cipable things were capable of transfer by tradition ; suppose, now, 
that a mancipable thing were conveyed by the owner to a vendee 
by tradition ; the process would not make him quiritary owner ; 
he would be no better than a bona fide possessor, until by the 
lapse of a year or of two years he acquired quiritary ownership by 
usucapion. The praetor, however, assisted the less cumbrous mode 
of alienation by treating the vendee as if he were owner ; by giving 
him, if in possession, the exceptio rei venditae et traditae or plea 
of sale and delivery against the vendor who sought to recover as 
quiritary owner, and enabling the vendee, if dispossessed, to recover 
against the quiritary owner as well as against any third person by 
utilis vindicatio, called actio Publiciana, in which he would meet the 
plea of quiritary ownership (exceptio dominii) by the replicatio rei 
venditae et traditae or by the replicatio doli, a replication which could 
not be used by a mere bona fide possessor. Bonitary ownership, or 
ownership established by the praetor, when once invented, was 
employed by the praetor in other innovations, which he introduced, 
namely, as we shall see hereafter, in respect of res corporales of an 
insolvent debtor transferred to a purchaser by universal succession 
(bonorum venditio), and in respect of his testamentary and intestate 
succession (bonorum possessio) : 3 80. 

The barbarous term Bonitary (formed from the classical in bonis 
esse, in bonis habere) has the authority of Theophilus, who speaks 
of Sfo-norrjs ftuvirdpios, 1, 5, 4 ; he also calls bonitary ownership natural 
dominion ((frwiKri bf<rnoT(ia), as opposed to statutory, civil, or quiri- 
tary dominion ((wopos deo-TroTem). 

Actio Publiciana was not only the remedy of the bonitary owner, 
but was also applicable on the alienation of anything whatever by 
a non -proprietor to an innocent alienee (bona fide possessor) in case 
the latter lost possession of it. 

Usucapion, as in the case of bonitary ownership, might in the lapse 
of time have given the bona fide possessor plenary dominion, and, with 
it, vindication in the event of a loss of possession ; but if he lost pos- 
session whilst usucapion was still incomplete, he would have had no 
real action (for, not being owner, he could not vindicate), if the 
praetor had not allowed him to sue by the actio Publiciana, which 
treated bona fide possession, that is, usucapion possession, or the 
inception of usucapion, as if it were plenary dominion in respect of 
every one, except the rightful owner. The latter, however, could 
defend himself in this action successfully against a mere bona fide 
possessor by the exceptio dominii, or bring a vindication against a 



154 DE ADQVIRENDO RERVM DOMINIO [n. 40-61. 

bona fide possessor who retained possession, though, as we have seen, 
the quiritary owner was not allowed to avail himself of these means 
of protection against a person having a praetorian or bonitary title of 
ownership. 

52-60. An heres was either voluntarius, empowered to accept 
or reject the inheritance, or necessarius, heir as matter of course, 
without any such power of election. A voluntary heir was either 
.in agnate entitled to succeed an intestate, or any heir, not being 
a suus or necessarius heres of the testator, entitled under a will. A 
necessary heir was either a slave of the testator manumitted by his 
will, or a self-successor (suus heres), that is, a descendant under power 
of the testator or intestate, made independent by his death, 152. In 
every case of voluntarius heres, so long as the heir had not entered 
on the inheritance, any stranger was permitted to seize parts of it 
and acquire property therein by usucapion. The only title (causa, 
titulus) required for this acquisition was the overture or delation of the 
inheritance to heres and vacancy of possession. This possession, which 
Gaius ( 52) calls pro herede (see Dig. 5, 3, 9) is more properly called 
pro possessore. Cf. 4 144. 'Possessor, as possessor, is the occupant, 
who, asked why he possesses, answers, "Because I possess," and 
does not claim to be heir even mendaciously, and has no title of 
possession to allege.' But according to early Roman law any person 
who was allowed by the voluntary heir to remain in possession of 
the inheritance for a year was considered lawfully entitled to it as 
heir, bona fides on the part of a possessor being at this time im- 
material for the purpose of acquiring by usucapion (Muirhead, 
Roman Law, 32). The senatusconsultum of Hadrian, referred to 
in the text, 57, did not prevent the usucapion, but made it nugatoiy 
by allowing the heir to recover the hereditaments by real action 
(hereditatis petitio, or the interdict Quorum bonorum, 4 144), just 
as if the usucapion had never been completed. 

Though the occupant of the vacant hereditament was called 
praedo, his possession, being encouraged by the lawgiver, was not 
unlawful until restitution was claimed, Savigny, 264. This pos- 
session is probably the key to an enigmatical rule in Roman law : 
ipsum sibi causam possessionis mutare non posse, Dig. 41, 3, 33, 1 ; 
causam possessionis neminem sibi mutare posse, Dig. 41, 5, 2, 1. 
'No man can change at pleasure his title of possession.' With the 
intention, it may be, of limiting the operation of possessio pro 
herede, an anomalous institution of questionable expediency, the rule 
declares that a person who commences his possession of a thing 
in the character of a vendee from a non-proprietor, or holds it as 
lessee, borrower, depositary, shall not be able, on the death of the 
true proprietor, to accelerate or initiate usucapion by merely pro- 



ii. 40-61.] DE VSVCAPIONIBVS 155 

fessing that he ceases to hold in his former character and proceeds 
to hold as possessor pro herede or pro possessore. 

Possessio pro herede was perhaps the germ of the intestate suc- 
cession of next of kin or cognati, a succession, as we shall see, not 
originally recognized in Eomau law ; at least, the family or next of 
kin of an intestate would generally have the best chance of seizing 
any movables or immovables that he left ; and perhaps it was this 
equitable result, no less than the object mentioned by Gaius, 55, 
that, in the absence of a regular succession of cognati, led the public to 
look on possessio pro possessore as a rational and salutary institution. 

The senatuseonsultum mentioned in the text, 57, is supposed by 
some commentators to be the same as one mentioned in the Digest 
(5, 3, 6), as having been passed at the instance of the Emperor 
Hadrian, when Q. Julius Balbus and P. Juventius Celsus were 
consuls, A. r>. 129 hence called Sc. Juventianum. The institution 
of usucapio pro herede and pro possessore, or rather the senatus- 
eonsultum by which it was defeated, has left its traces in the formula, 
still to be found in the Digest, of the interdict Quorum bonorum, 
a remedy whereby a person who claimed either as civil heir (heres), 
or as praetorian heir (bonorum possessor), established his claim to 
succeed and recovered possession of the things belonging to the 
inheritance. See 4 144. To leave these traces in the wording 
of the interdict was according to Vangerow no oversight on the 
part of Justinian, as although in his legislation the last remnants 
of the institution of usucapio pro possessore, that is by a mala fide 
possessor, had been definitely abolished ; yet usucapio pro herede, that 
is, by a bona fide possessor, or one who sincerely though mistakenly 
held himself to be heir, was still recognized by jurisprudence, 320. 

60. For fiducia cum creditore see 1 114, comm., 3 90, 91, 
comm. Mancipation to a friend on trust for safe custody must have 
been the earliest legal form of deposit, as mancipation to a creditor 
on trust to reconvey was the earliest mode of pledge or mortgage. 
For precarium see 4 138-170, comm. 

61. The circumstances contemplated seem to be as follows: 
A proprietor is debtor to the Roman people or state, and his lands 
are mortgaged as security for the debt. On default of payment, the 
state exercises the power of sale : if the debtor is not turned out of 
possession by the purchaser (praediator) in two years he recovers his 
proprietorship by usureception. It seems that the sale by the people 
was merely the transfer of the mortgage ; so that, if the debtor 
afterwards satisfied the purchaser, he recovered his land. Kuntze, 
Excursus des Rom. Rechts, 436. 

Provincial lands were not subject to Usucapion ; but a possessor 
for ten years during the presence of the owner in the same province 



156 DE ADQVIRENDO RERVM DOMINIO [n. 40-61. 

(inter praesentes), or for twenty years in his absence (inter absentes), 
if he satisfied the conditions of usucapion, had, according to the 
provincial edict, the plea called longi temporis praescriptio against 
any action brought by the owner for recovery, and subsequently was 
himself allowed to recover the land, as if he were owner of it, so 
that longi temporis possessio became in later Roman law not simply 
a limitation of the right of action, but a positive title analogous to 
usucapion. 

Usucapion required something beyond mere possession for a cer- 
tain period ; and something beyond what we hereafter call Interdict 
possession, 4 138-170. The conditions of possession which entitled 
a possessor to appeal for the protection of his possession to the 
praetor's interdict were merely that he should have de facto control 
of the property, as if he were owner of it, all question of right or 
title being immaterial : nor was a mala fide any more than a bona 
fide possessor excluded from this protection, unless he had obtained 
possession from the other party to the interdict by means of violence 
(vi), or clandestinely (clam), or by his pel-mission (precario). But to 
produce Usucapion (i) the person and thing to be acquired must be, 
capable of quiritary ownership, and (2) it must not have been taken 
by any one's theft or violence from the former owner, 49 : so that 
land not being subject to furtum was more easily acquired by 
usucapion than movable property, 50 ; (3) the possession of the 
usucapient must be based on a justa causa or titulus, a ground of 
acquiring ownership, such as tradition or bequest ; (4) and com- 
menced with bona fides on his part, a condition which appears to 
have been annexed to the law of the Twelve Tables by the inter- 
pretation of the prudentes. Bona fides, in the case of titulus of 
occupancy, which is an original mode of acquisition, e.g. usucapio 
pro derelicto, is a mistaken belief that the thing is res nullius, 
has no proprietor. In the case of derivative acquisition it is the 
belief that the auctor, or person from whom the thing is derived, is 
either owner or, if not owner, has a power of disposition as agent, 
guardian, mortgagee, or otherwise. Vangerow, 321. The Canon 
law requires during the whole period of such prescription the bona 
fides which the Civil law only requires at the inception. 

Justinian remodelled the law of Usucapion, combining it with longi 
temporis possessio. Cf. Inst. 2, 6. For movables he extended- the 
period from one year to three years : for immovables he abolished the 
distinction between Italian and provincial land, and required ten 
years' possession if the parties were domiciled in the same province, 
and twenty years' possession if they were not domiciled in the same 
province. Further, he introduced a new usucapion (longissimi tem- 
poris praescriptio), which was governed by less stringent conditions 



ii. 40-61.] DE VSVCAPIONIBVS 157 

than the ordinary usucapion (longi temporis praescriptio). It applied 
both to movables and immovables, was not vitiated by certain flaws 
in the subject (res furtiva, vi possessa), and needed no support of 
any titulus, but only required bona fides in its inception on the 
part of the possessor, Cod. 7, 39, 8. It was completed in thirty 
years. 

Usucapion, particularly in this its later form, requires to be care- 
fully distinguished from the Limitation of actions (temporalis prae- 
scriptio) with which it has been co-ordinated by some civilians under 
the name of Acquisitive, as opposed to Extinctive, Prescription. We 
shall see, 4 110, that all actions were originally divided into tem- 
porales and perpetuae, temporales being such as could only be brought 
within a certain period (e.g. in the case of praetorian actions, a year) 
from the time when the right of action accrued, perpetuae such as 
were subject to no such limitation. Subsequently, however, even 
the latter were limited, and no action could be brought after thirty 
years from the nativity of the action or the time when the right of 
action accrued (actio nata), Inst. 4, 12 pr. In the case of personal 
actions there is no danger of confusing Usucapion and Limitation. 
Usucapion implies possession, and in the case of personal actions, 
or jus in personam, no such thing as possession is conceivable, 
for possession only relates to res corporales. Usucapion and 
the Limitation of real actions are more similar, but even here a 
distinction may be recognized. Limitation is the extinction of a 
right by neglect of the person entitled, by his omission to enforce 
his remedy : Usucapion is the acquisition of a right by something 
positive on the part of the acquirer, his strictly denned possession 
for a certain time. Even extraordinary acquisitive- prescription 
requires, as we have seen, bona fides in the commencement of pos- 
session : no such condition is attached to Limitation or extinctive 
prescription. 

English law originally only recognized acquisitive prescription in the 
case of easements and profits, e. g. rights of way ; for the acquisition of 
which the Prescription Act, 2 and 3 Will. 4, c. 71, requires possession 
for a fixed period. Moreover, since the Act for the limitation of real 
actions, 3 and 4 Will. 4, c. 27, deprives a proprietor of land of his 
right as well as his remedy if he omit to bring his action to recover 
it within twenty years after the right accrued (a limit which by the 
37 and 38 Viet. c. 57 was reduced to twelve years), the principle of 
Usucapion (Acquisitive prescription) in corporeal as well as incor- 
poreal hereditaments may be said to be now recognized in English 
real property law, though not very distinctly. 

Besides the civil titles which we have examined, two others are 
mentioned by Ulpian : Singularum rerum dominia nobis adquiruntur 



158 DE ADQVIRENDO RERVM DOMINIO [n. 40-61. 

mancipatione, traditione, in jure cessione, usucapione, adjudicatione, 
lege, 19, 2. 

Adjudication (for the nature of which see 4 42), whereby pro- 
perty might be taken from one individual and vested in another 
without any of the ordinary methods of conveyance, as in the 
case of the award of a judex in a partition suit, may be com- 
pared in its operation to the vesting orders made by the Court of 
Chancery under the Trustee Acts. When trustees are disabled by 
lunacy or infancy from dealing with the estates vested in them, the 
Court of Chancery is empowered to make orders the effect of which 
is that the estate becomes immediately vested in the substituted 
trustees as effectually as if a conveyance had been duly made by the 
person previously entitled to the legal estate. Another parallel is to 
be found in the awards of certain commissioners acting under powers 
given by act of parliament. Thus the order of the Inelosure com- 
missioners for exchange and partition of land closely resembles in 
subject and effect the adjudicatio of a judex n the actio finium 
regundorum. 

Lex is an ambiguous and miscellaneous title. It is said to include 
title by caducity (caducum) under the lex Papia Poppaea, and bequest 
or legacy (legatum), a title deriving its validity from the lex of the 
Twelve Tables, Ulpian, 19, 17. Extending our view from res 
singulae, to which Ulpian confines himself, to universitates, lex 
was an apt denomination of title by will at the period when wills 
required the ratification of the Cornitia Calata, 2 101, as at that 
time testamentary dispositions were really acts of the legislature. 
Title by lex in this case bears some kind of analogy to conveyances 
by private act of parliament in English jurisprudence. 

It may assist to clear our conception of title if we observe that 
the title 'Lege' is ambiguous, and that (i) while one of its mean- 
ings implies an absence of all title, (2) another denotes a miscella- 
neous group of heterogeneous titles. 

(i) The only case in which Law can be said in any distinctive 
sense to be a cause of acquisition is privilegium or private law. 
The acquisition of a right by immediate grant from the sovereign 
(private act of the legislature, private act of parliament) is unlike 
the acquisition of a person entitled under some general disposition 
of a universal law. Acquisition by bequest or escheat is not an 
acquisition by law in any pre-eminent manner, but only in the same 
degree as is acquisition by mancipation or usucapion or any other 
title, for all these acquisitions are equally founded on law or some legal 
disposition of general application. But in acquisition by privilegium 
there is, in this sense, neither title nor any general law. By a general 
law is meant a universal proposition, annexing a right or duty to 



ii. 65-79.] ADQVISITIONES DOMINII NATVRALES 159 

a title : it knows nothing of individual persons, but stops short 
at classes of persons, classes, that is, defined by the title. Again, 
title is, properly speaking, a contingent fact distinct from a corre- 
sponding law : a fact which may occur an indefinite number of 
times, and entitle, that is, invest with rights or duties, an indefinite 
number of persons, in accordance with the dispositions of one and 
the same unchanging law. Title, loosely and inaccurately defined 
as a fact investing a person with a right, would include a privilege, 
i. e. a law conferring a right immediately on a given individual 
without the intervention of a fact distinguishable from the law ; 
but title, properly defined as an intervening fact through which 
a law confers a right mediatel} T , excludes privilege. 

Whenever there is a genuine title and a general law, the title is 
interposed between the general right or duty and the particular person 
therewith invested, just as the middle term is interposed between the 
major and minor terms of a syllogism. E.g. All persons characterized 
by the fact B are invested with the right or duty A : the individual 
C is characterized by this fact B ; therefore this individual is invested 
with the right or duty A. A genuine law is only the major premiss, 
the proposition stating the general right or duty, all B is A. The 
condition, represented by the middle term, which connects or dis- 
connects the right or duty with a person is the title. In a privilegium 
we have no such premisses and no such middle term. The invest- 
ment of the particular individual C with a general right or duty 
is not in this case possible, being unwarranted by any genuine title. 

(2) In Bequest and loss of a bequest on account of caducity or 
ereption there is a general law and a genuine title, but the law is not 
the title, any more than it is in any other mode of acquisition. 
Either because these modes include fewer voluntary acts than some 
closely allied modes (for instance, the legatee may acquire ownership 
of the property bequeathed to him without any act of acceptance on 
his part), or, for some other reason, divers modes are lumped together 
under the head of acquisition by lex. The name, however, besides 
being a misnomer, is merely a sink or receptacle of miscellaneous 
unrelated titles, just as we shall find in the doctrine of obligations 
that miscellaneous titles (variae causarum figurae) are lumped 
together under the denomination of quasi-contract. As to the 
displacement in the MS. of 62-64 see below, p. 163. 

65. Ergo ex his quae dixi- 65. Thus it appears that some 

mus apparet quaedam natural! modes of alienation are based on 

-iure alienari, qualia aunt ea natural la\v, as tradition, and 

quae traditione alienantur ; others on civil law, as mancipa- 

t quaedam chilli, nam mancipa- tion > surrender before the magis- 



160 DE ADQVIRENDO RERVM DOMINIC [n. 65-79. 



tionis et in iure cessionis et 
usucapionis ius proprium est 
ciuium Romanoruin. 

Inst. 2,1,11. 

66. Nee tamen ea tantum, 
quae traditione nostra fiunt, | 
natural! nobis ratione adqui- 
runtur, sed etiam | occupando 

ideo erimus, quio- antea nul- 

li|us essent; qualia sunt om- 
nia quae terra mart caelo 
capiuntur. 

67. Itaque si /eram bes- 
tiam aut uolucrem aut pis[- 

cem captum | eo 

usque nostrum esse intellegitur, 
donee nostra custodia coer- 
ceatur ; cum uero custodiam 
nostram euaserit et in natu- 
ralem libertatem se receperit, 
rursus occupantis fit, quia no- 
strum esse desinit ; naturalem 
autem libertatem recipere uide- 
tur, cum aut oculos nostros 
euaserit, aut licet in conspectu 
sit nostro, difficilis tamen eius 
persecutio sit. Inst. 2, 1, J2. 

68. In his autem anima- 
libus quae ex consuetudine ab- 
ire et redire solent, ueluti co- 
lumbis et apibus, item ceruis 
qui in siluas ire et redire so- 
lent, talem habemus regulam 
traditam, ut si reuertendi ani- 
mum habere desierint, etiam 
nostra esse desinant et fiant 
occupautium ; reuertendi autem 
animum uidentur desinere ha- 
bere, cum reuertendi consuetu- 
dinem deseruerint. 

Inst. 2, 1, 14. 

69. Ea quoque quae ex 
hostibus capiuntur naturali 
ratione nostra fiunt. 

Inst. 2, 1, 17. 

70. Sed et id quod per ad- 
luuionem nobis adicitur eodem 
iure nostrum fit ; per adluuio- 



trate. usucapion, for these are 
titles confined to citizens of Eome. 



66. Another title of natural 
reason, besides Tradition, is Occu- 
pation, whereby things previously 
the property of no one become 
the property of the first occupant, 
as the wild inhabitants of earth, 
air, and water, as soon as they are 
captured. 

67. For wild beasts, birds, and 
fishes, as soon as they are captured, 
become, by natural law, the pro- 
perty of the captor, but only con- 
tinue such so long as they con- 
tinue in his power ; after breaking 
from his custody and recovering 
their natural liberty, they may 
become the property of the next 
occupant ; for the ownership of 
the first captor is terminated. 
Their natural liberty is deemed 
to be recovered when they have 
escaped from his sight, or, though 
they continue in his sight, when 
they are difficult to recapture. 

68. In the case of those wild 
animals, however, which are in 
the habit of going away and re- 
turning, as pigeons, and bees, 
and deer, which habitually visit 
the forests and return, the rule 
has been handed down, that only 
the cessation of the intention' of 
returning is the termination of 
ownership, and then the property 
in them is acquired by the next 
occupant; the intention of return- 
ing is held to be lost when the 
habit of returning is discontinued. 

69. Capture from an enemy 
is another title of property by 
natural law. 

70. Alluvion is another natural 
mode of acquisition. Alluvion is 
an addition of soil to land by a 



ii. 65-79.] ADQVISITIONES DOMINII NATVRALES 161 



nem autem id uidetur adici 
quod ita paulatim flumen agro 
.nostro adicit, ut aestimare non 
possimus quantum quoquo mo- 
rn en to temporis adiciatur ; hoc 
est quod uulgo dicitur per ad- 
luuionem id adici uideri quod 
ita paulatim adicitur, ut oculos 
nostros fallat. Inst. 2, 1,20. 

71. Itaque si flumen partem 
aliquam ex tuo praedio rescide- 
rit et ad meum praedium per- 
tulerit, haec pars tua manet. 

Inst. 2,1,21. 

72. At si in medio flumine 
insula nata sit, haec eorum 
omnium commums est, qui 
ab utraque parte fluminis prope 
ripam praedia possiden ; si 
uero non sit in medio flumine, 
ad eos pertinet qui ab ea parte 
quae proxima est iuxta ripam 
praedia habent. Inst. 2, 1, 22. 

73. Praeterea id quod in 
solo nostro ab aliquo aedifica- 
tum est, quamuis ille suo no- 
mine aedificauerit, iure naturali 
nostrum fit, quia superficies 
solo cedi. Inst. 2, 1, 30. 

74. Multoque magis id ac- 
cidit et in planta quam quis 
in solo nostro posuerit, si mo- 
do radicibus terrain conplexa 
fuerit. Inst. 2, 1, 31. 

75. Idem contingit et in 
/rumento, quod in solo nostro 
ab aliquo satum fuerit. 

Inst. 2, 1, 32. 

76. Sed si ab eo petamus 
fundum uel aedificium et in- 
pensas in aedificium uel in 
seminaria uel in sementem 
factas ei soluere nolimus, po- 
terit nos per exceptionem doli 
mali repellere, utique si bonae 
fidei possessor fuerit. 

Inst. 1. c. 



river, so gradual that at a par- 
ticular moment the amount of 
accretion cannot be determined ; 
or, to use the common expression, 
an addition made by alluvion is 
so gradual as to elude our sight. 



71. Accordingly a parcel of 
your land swept away by a river, 
and carried down to mine, con- 
tinues your property. 

72. An island that rises in 
the middle of a river is the com- 
mon property of the proprietors 
on both banks of the river ; if it 
is not in the middle of the stream, 
it belongs to the proprietors of 
the nearer bank. 



73. Again, a building erected 
on my soil, though the builder 
has made it on his own account, 
belongs to me by natural law ; 
for the ownership of a super- 
structure follows the ownership 
of the soil. 

74. The same occurs a fortiori 
when trees are planted on my land, 
provided they have struck root. 



75. Similarly, when corn is 
sown on my land. 



76. But if I bring an action 
to recover the land or the build- 
ing, and refuse to compensate the 
other party for his outlay on the 
building or the plantation or the 
cornfield, he will defeat my action 
by the plea of fraud, at any rate 
if he was a bona fide possessor. 



M 



162 DE ADQVIRENDO RERVM DOMINIO [n. 65-79. 



77. Eadem ratione pro- 
batum est quod in chartulis 
siue membranis meis aliquis 
scripserit, licet aureis litteris, 
meum esse, quia litterae char- 
tulis siue membranis ceduntf. 
itaque si ego eos libros easue 
membranas petam nee inpen- 
sam seripturae soluam, per ex- 
ceptionem doli mali summoueri 
potero. Inst. 2, 1, 33. 

78. Sed si in tabula mea 
aliquis pinxerit ueluti ^magi- 
nem, contra probatur ; magis 
enim dicitur tabulam picturae 
cedere. cuius diuersitatis uix 
idonea ratio redditur; certe 
secundum hanc regularn si me 
possidente petas imaginem 
tuam esse, nee soluas pretium 
tabulae, poteris per excep- 
tionem doli mali summoueri ; 
at si tu possideas, consequens 
est, ut utilis mihi actio aduer- 
sum te dari debeat ; quo casu 
nisi soluam inpensam picturae, 
poteris me per exceptionem doli 
mali repellere, utique si bonae 
fidei possessor fueris. illud 
palam est, quod siue tu sub- 
ripuer^s tabulam siue alius, 
conpetit mihi furti actio. 

Inst. 2, 1,34. 

79. In aliis quoque specie- 
bus naturalis ratio requiritur. 
proincfe si ex uuis (aut oliuis 
aut spicis} meis uinum aut 
oleum aut frumentum feceris, 
quaeritur utrum meum sit id 
uinum aut oleum aut frumen- 
tum, an tuum. item si ex auro 
aut ar^rento meo uas aliquod 
feceris, uel ex tabulis meis 
nauem aut armarium aut sub- 
sellium fabricaueris ; item si 
ex lana mea uestimentum fece- 
ris, uel si ex uino et melle meo 
mulsum feceris, siue ex medi- 



77. On the same principle, 
the writing inscribed on my 
paper or parchment, even in 
letters of gold, becomes mine, 
for the property in the letters is 
accessory to the paper or parch- 
ment ; but if I sue for the books 
or parchment without offering 
compensation for the writing, my 
action will be defeated by the 
plea of fraud. 

78. The canvas belonging to 
me, on which another man has 
painted, e. g. a portrait, is sub- 
ject to a different rule, for the 
ownership of the canvas is held 
to be accessory to the painting: 
a difference which scarcely rests 
on a sufficient reason. By this 
rule, it is clear that if I am in 
possession, and you (the painter) 
claim the portrait without offering 
to pay the value of the canvas, I 
may defeat your claim by the plea 
of fraud. But if you are in posses- 
sion, the effect is that I am entitled 
to an equitable action against you, 
but in this case unless I offer the 
price of the painting, you defeat 
me by the plea of fraud, at any 
rate if you are a bona fide pos- 
sessor. It is certain, that, if either 
you or another purloined the can- 
vas, I can bring an action of theft. 

79. On a change of species, 
also, we have recourse to natural 
law to determine the proprietor. 
Thus, if grapes, or olives, or 
sheaves of corn, belonging to me. 
are converted by another into 
wine, or oil, or (threshed out) 
corn, a question arises whether 
the property in the corn, wine, 
or oil, is in me, or in the author 
of the conversion ; so too if my 
gold or silver is manufactured 
into a vessel, or a ship, chest, or 
chair is constructed from my 
timber, or my wool is made into 
clothing, or my wine and honey 



ii. 65-79.] ADQVISITIONES DOMINII NATVRALES 163 



camentis meis emplastrum uel 
collyrium feceris, (quaeritur, 
utrum tuum sit id quod ex meo 
effeceris,y an meum. quidam 
materiam et substantiam spec- 
tandam esse putant, id est 
ut cuius materia sit, illius et res 
quae facta sit uideatur esse, id- 
que maxime placuit Sabino et 
(Jassio. alii uero eius rem esse 
putant qui fecerit, idque ma- 
xime diuersae scholaeauctoribus 
uisum est; sed eum quoque cuius 
materia et substantia fuerit 
furti aduersus eum qui subri- 
puerit habere actionem ; nee 
minus aduersus eundem con- 
dictionem ei conpetere, quiet 
extinctae res, licet uindicari 
non possmt, condici tamen f uri- 
bus et quibusdam aliis posses- 
soribus possunt. 

Inst. 2, 1, 25. 



are made into mead, or my drugs 
into a plaster or eye-salve, it be* 
comes a question whether the 
ownership of the new product is 
vested in me or in the manu- 
facturer. According to some, the 
material or substance is the crite- 
rion ; that is to say, the owner 
of the material is to be deemed 
the owner of the product ; and 
this was the doctrine which com- 
mended itself to Sabinus and 
Cassius ; according to others the 
ownership of the product is in the 
manufacturer, and this was the 
doctrine favoured by the opposite 
school ; who further held that 
the owner of the substance or 
material could maintain an action 
of theft against the purloiner, and 
also an action for damages (con- 
dictio), because, though the pro- 
perty which is destroyed cannot 
be vindicated, this is no bar to 
a condictio or personal action for 
damages against the thief and 
against certain other possessors. 



QVIBVS ALIENAKE LICEAT VEL NON. 



62. Accidit aliquando, ut 
qui dominus sit alienandae rei 
potestatem non habeat, et qui 
dominus non sit aenare pos- 
sit. Inst. 2, 8 pr. 

63. Nam dotale praedium 
maritus inuita muliere per le- 
gem luliam prohibetur alienare, 
quamuis ipsius sit uel manci- 
patum ei dotis causa uel in iure 
cessum uel usucaptum. quod 
quidem ius utrum ad Italica 
tantum praecZia an etiam ad 
prouincialia pertineat, dubi- 
tatur. Inst. 1. c. 

64. Ex diuerso agnatus fu- 
riosi curator rem furio|si alie- 
nare potest ex lege xn tabula- 
rum ; item procurator | 



62. It sometimes occurs that 
an owner has not a power of 
alienation, and that a person who 
is not owner has a power of 
alienation. 

63. The alienation of dower 
land by the husband, without the 
consent of the wife, is prohibited 
by the lex Julia, although the 
husband has become owner of the 
land by its mancipation to him 
as dower, or by its surrender to 
him before a magistrate, or by 
his usucapion of it. Whether this 
disability is confined to Italian 
soil, or extends to the provinces, 
authorities differ. 

64. Contrariwise, an agnate, as 
a lunatic's curator, is empowered 
to aliene the lunatic's property by 
the law of the Twelve Tables; 



M a 



164 DE ADQVIRENDO RERVM DOMINIO [n. 65-79. 

est ; item creditor pignus ex | and so is a procurator that of his 
pactione, quamuis eius ea res principal (when invested by his 
non sit. sed hoc forsitan ideo principal with free power of ad- 
uideatur fieri, quod uoluntate ministration: Inst. 2, 1, 43). 
debitoris intellegitur pignus Again, a pledgee, in pursuance 
alienari, qui olim pactus est, ut of a P** authorizing him to sell, 
liceret creditor! pignus uendere, ma ^ hene the f^*" **,?!* 
si pecunia non soluatur. Jf not owner , f ^e thing ; this, 

T < 2 8 1 however, may be said to rest on 
s ' ' ' ' the assent of the pledger pre- 
viously given in the agreement 
which empowered the pledgee to 
sell in default of payment. 

65. Tradition or transfer of possession, as we have seen, was 
a natural mode of transferring ownership in such non-mancipable 
things as were corporeal : in mancipable things it could only transfer 
bonitary ownership. The nature of this conveyance, which belongs 
to jus gentium, has been fully explained above, 14 a-27, comm. 

Fructus or produce of a thing, when they become distinct entities, 
l>elong to the owner of the principal thing, unless specially acquired 
from him by some one else. They may be so acquired by transfer, in 
which case one act of assent may suffice as the antecedent to many 
acts of prehension ; for instance, in the gathering (perceptio) of fruits 
by a usufructuary. Here the taking them occurs from time to time ; 
the will or intention of the owner of the principal thing was mani- 
fested once for all when he created the usufruct. But in the case of 
a hirer of land by mere contract (colonus) a special tradition of the 
fructus by the owner in each particular case of acquisition is required. 
Thus if the fructus are res nee mancipi, perception of them, with the 
consent of the owner, gives him ownership : if they are res mancipi, 
bona fide possession, which usucapio will ripen into ownership. 

Mere severance (separatio) of fruits (fructus) from the soil or parent 
substance, without any act of appropriation (perceptio), gives to the 
bona fide possessor, according to Savigny, Besitz, 22 a, bona fide 
possession, which will be transformed into ownership by usucapion : 
according to Vangerow, 326, it gives him immediate and plenary 
ownership. Windscheid, Pandekten, 186, notes 11 and 12, takes an 
intermediate position. Cf. Inst. Just. 2, 1, 35. 

If the true owner recovers his land or cattle by vindicatio, the 
judex will compel a bona fide possessor who is defendant to restore 
the unconsumed fruits (fructus extantes) but not to make compensa- 
tion for the consumed fruits (fructus consumpti). The mala fide 
possessor, on the contrary, acquires no property in the consumed 
fruits, but is compelled either by the vindicatio by which the principal 
thing is recovered or by a separate personal action (condictio) to 



ii. 65-79.] ADQVISITIONES DOMINII NATVRALES 165 

restore their value ; he may likewise be compelled to restore the fructus 
extantes either by the principal vindicatio or by a separate vindicatio. 
He can be sued for the value of the fruits he has neglected to gather 
(fructus neglecti) only in the principal vindicatio : their non-existence 
prevents his being sued for them in a separate vindicatio ; and the 
fact that he is not enriched by them prevents his being sued for 
them in a separate condictio, Savigny, System, 267. 

66-69. Occupation gives property in a thing which previously 
has no owner. Quod enim ante nullius est, id naturali ratione 
occupanti conceditur, Inst. 2, 1. 12. If a thing had already an 
owner, it is only after dereliction by him that it can be appropriated 
by occupation. Dereliction, or renunciation of ownership, requires 
both the intention to abandon it and an external action. Thus the 
casting overboard of articles in a tempest to lighten a ship is not 
dereliction, as there is no intention of abandoning the property in 
the event of salvage, Inst. 2, 1, 48. Nor does the mere intention of 
abandonment constitute dereliction of ownership without a throwing 
away or removal or some other external act ; and herein dereliction of 
ownership differs from dereliction of possession, which does not require 
this second element. Differentia inter dominium et possessionem 
haec est, quod dominium nihilo minus ejus manet qui dominus esse non 
vult, possessio autem recedit ut quisque constituit nolle possidere, 
Dig. 41, 2, 17. 'There is this difference between ownership and posses- 
sion, that ownership continues after the will to own has ceased, 
whereas possession ceases with the cessation- of the will to possess.' 

68. Among wild animals (ferae naturae) a distinction is to be 
drawn. In those of them that are half tamed (mansuefactae), among 
which are mentioned deer, peacocks, pigeons, bees, property is not 
limited by strict detention, as in other wild animals, but by animus 
revertendi. A migrating swarm (examen) of bees, accordingly, 
would only continue to belong to the owner of the hive as long as 
it continues in his sight and is easy to recapture, as it has no 
intention of returning. In tame animals, e.g. dogs or geese, the 
rights of the owner are not extinguished by their straying without 
an intention to return. Inst. 2, 1, 12-16. 

76-79. The intimate conjunction of two things, so that they 
are no longer separable and restorable to their former condition, 
may produce a transmutation of ownership. A separable junction, 
as when two flocks of sheep are intermingled, or when a stone is 
set in a ring, or when two metals are soldered together (plumbatura), 
or when the grain of one man is mixed with that of another, apart 
from an agreement to share in common, produces no change of 
ownership. In one case, however, namely, when material has been 
used in building a house on another man's land, although the pro- 



166 DE ADQVJRENDO KERVM DOMINIO [n. 65-79. 

perty of the owner of the material continues, it is in a dormant 
state since he cannot, so long as it is fixed to the land, vindicate 
it, 'quia superficies solo cedit,' 73. The Twelve Tables, however, 
allowed him the actio de tigno juncto to recover double the value. 

An inseparable union sometimes produces co-ownership in the 
whole (communio), sometimes the exclusive ownership of one of 
the parties (accessio). 

When two things belonging to different owners are mixed but 
neither produce a new species, nor the relation of principal and 
accessory, e. g. when two similar wines or metals are mixed ; or 
when a new species is produced with the consent of both owners, 
as when mead is produced by mixing honey and wine, electrum by 
mixing gold and silver ; then each owner loses his separate owner- 
ship of a part, and becomes joint owner of the whole. Inst. 2, 1, 27. 

When a new species is produced by one owner without the consent 
of the other, then, according to the law as settled by Justinian, the 
exclusive ownership is vested in the producer, and the other can only 
obtain redress by actio in personam for the loss of his ownership. 

Further, when the mixture establishes the relation of principal 
and accessory, that is, when one thing loses its independent exis- 
tence and becomes a part of the other (accessio), then the ownership 
in the whole is vested 'in the owner of the dominant part, acces- 
sorium sequitur principale ; cf. Dig. 6, 1, 23 Si quis rei suae alienam 
rem ita adjecerit, ut pars ejus fieret, veluti si quis statuae suae 
bracchium . . . adjecerit, dominum ejus totius rei effici . . . plerique 
recte dicunt. It will sometimes be a question which part is to be 
regarded as principal and which as accessory, and the solution 
does not depend on their comparative value. The Eoman jurists 
themselves differ sometimes, as is shown in the text, in their 
application of the principle of accession, but the principle itself 
seems to be that the part which maintains its previous identity 
and gives the dominating character to the entire thing is principal, 
while the part which is merged in the other and so ceases to have 
an independent existence, is accessory, as e. g. trees of one person 
planted and taking root in the land of another, are thereby entirely 
incorporated in the land. So again, a fresco painted by one person 
on a wall belonging to another is evidently something accessory to 
the wall. The case of an independent picture is a subject of dispute 
in this relation. Gaius, 78, appears to think that it ought to be 
governed by the analogy of a manuscript, where the property in the 
writing follows the property in the paper, 77. It may be said, 
however, that the principle of accession does not properly apply to 
a picture or to a manuscript of literary value, since they are new 
creations, differing in character from the materials in which they 



ii. 65-79.] ADQVISITIONES DOMINII NATVRALES 167 

are embodied. It was indeed finally settled by Justinian that the 
property in the picture belonged to the painter, though the latter 
would be bound, as in similar cases, to make good the loss suffered by 
the previous owner of the canvas. Inst, 2, 1, 34, cf. Sohm. 64 n. 

The remedy of the ex-proprietor of the accessory is utilis actio, 
78. This appears to be a real action (utilis in rem actio), which, 
as a real action implies that the plaintiff is owner, seems to mean 
a Fictitious action, 4 34, i. e. one whose formula feigns that the 
property was never divested by Accession. This may be what 
Gaius means by utilis actio. 

79. Specification or conversion by labour of something so as to 
constitute a new thing is a title which cannot without violence be 
brought under either Occupatio or Accessio. Here one person con- 
tributes only his labour, whereby he transforms the material or 
materials belonging to another into a new product (nova species). 
The Sabinians held that the product belonged (by Accessio?) to 
the owner of the material, the Proculians (by Occupatio?) to the 
producer of the specification or conversion. Justinian adopts an 
intermediate opinion, which Gaius mentions, Dig. 41, 1,7, 7, cf. Inst. 
2, 1, 25, that the product belongs to the producer, provided that 
it cannot be reduced to its original substance, while if it can be it 
belongs to the owner of that substance ; e. g. a gold or silver vessel 
belongs to the owner of the gold or silver out of which it was made : 
and provided further that the change is a genuine fabrication or 
manufacture ; for instance, the mere thrashing out of corn is not 
sufficient to change the ownership, and therefore the corn belongs 
to the owner of the sheaves, cf. 79 : and the mere dyeing of wool 
operates no transfer of ownership to the dyer, Dig. 41, 1, 26, 3. 

In the subjoined synopsis of the various titles to ownership which 
have been considered the proper position of Specification is open to 
controversy, but it would seem that it should be regarded as a dis- 
tinct and original mode of acquisition, 

Acquisition is either Derivative, that is derived by Succession from 

some one else, or Original, arising independently of any one else. 

Derivative acquisition depends on (i) the will of the previous 

owner (alienatio, testatio), (2) the disposition of a magistrate 

or judex (adjudication, addiction, execution), or (3) a direct 

disposition of law (intestate succession, caducity, forfeiture). 

Original acquisition is either independent of Possession or 
depends on Possession. 

Original acquisition independent of Possession is either the 
effect of Separation or of Conjunction. 
Separation is a title to property in the case of Separatio 



168 DE ADQVIRENDO EERVM DOMINIO [n. 65-79. 

fructuum, which confers property in the fruits on the 
owner of the principal thing, or on the bona fide possessor 
of it, or on the emphyteuta. 

Conjunction is either the conjunction of equal with equal 
or the conjunction of accessory with principal. 
The conjunction of equal with equal is seen in Confusio, 
which produces communio or co-proprietorship. 

The conjunction of accessory with principal is either of 
immovable with immovable, instanced in Alluvio : 

or of movable with immovable, instanced in Satio, 
Plantatio, Inaedificatio : 

or of movable with movable, instanced in Scriptura, 
Pictura. 

Original acquisition dependent on Possession is either further 
dependent on Time or is not dependent on Time. 
Original acquisition dependent on Possession and further 
dependent on Time is seen in Usucapio and Praescriptio 
longi temporis, when this latter became an acquisitive and 
not simply an extinctive title. 

Original acquisition dependent on Possession but inde- 
pendent of Time is seen in Occupatio, or taking possession 
of a res nullius, including Captio ferarum, Captio hostilis, 
Inventio derelicti, Inventio thesauri. 

62-64. It is conjectured that by some accidental displacement 
these three paragraphs have been transposed, and that in their 
proper order they should follow 61. There seems no good reason 
why they should be interposed between the titles of civil law and 
the titles of natural law. 

The lex Julia, relating only to Italian soil, permitted the husband 
to aliene the dotal land, with the consent of the wife, but prohibited 
its hypothecation, even with her consent. Justinian extended the 
prohibition to provincial soil, and to alienation with the wife's 
consent, Inst. 2, 8, pr. 

In the time of the jurist Javolenus, who flourished under Trajan 
and Hadrian, and still probably in that of Gaius, the power of sale 
of a pledge, 64, was what is known in later jurisprudence as 
accidentale negotii, requiring a special agreement, Dig. 47, 2, 73, where 
by an omission of the compilers the law is not brought up to date. 
But in later law, as early at least as the time of Ulpian it had become 
a necessary consequence of the transaction essentiale negotii so 
that a contrary agreement is inoperative, except that it imposes a 
necessity of three denunciations or demands of payment, Dig. 13, 7, 4. 



ii. 80-85.] PVPILLORVM ALIENATIO 



169 



DE PVPILLIS AN ALTQVID A SE 
ALIENAKE POSSVNT. 

80. Nunc admonendi sumus 
neque feminam neque pupillum 
sine tutoris auctoritate rem 
mancipi alienare posse ; nee 
mancipi uero feminam quidem 
posse, pupillum non posse. 

Inst. 2, 8, 2. 

81. Ideoque si quando mu- 
lier mutuam pecuniam alicui 
sine tutoris auctoritate dederit, 
quia facit earn accipientis, cum 
scilicet joecunia res nee man- 
cipi sit, contrahit obligationem. 
Inst. 1. c. 

82. At si pupillus idem 
fecerit, | quia non facit acci- 
pientis s , nullam | contra- 
hit obligationem ; unde pupil- 
lus uindicare quidem nummos 
suos potest, sicubi extent, id | 
est eos >etere 8uos ex iure 



Quiritium esse- 
tere potest s- 



tere. 



repe- 
unde 



de pupillo quidem quaeritur, 
an num | quos mutuos dedit, 
ab eo qui accepit, - 
actione eos persequi possit, 

quoniam [ potest. 

Inst. 1. c. 

83. At ex contrario omnes 
res tarn mancipi quam nee 
mancipi mulieribus et pupillis 
sine tutoris auctoritate solui 
possunt, quoniam meliorem 
condicionem suam facere eis 
etiam sine tutoris auctoritate 
concessum est. 

84. Itaque si debitor pecu- 
niam pupillo soluat, facit qui- 
dem pecuniam pupilli, sed ipse 
non Hberatur, quia nullam ob- 
ligationem pupillus sine tutoris 
auctoritate dissoluere potest, 
quia nullius rei alienatio ei sine 



WHETHER WARDS CAN 
ALIENE. 

80. We must next observe, 
that neither a woman nor a ward 
(pupillus) can aliene a manci- 
pable thing without their guar- 
dian's sanction : nor can a ward 
even aliene a non-mancipable 
thing without such sanction, 
though a woman can. 

81. Thus a woman lending 
money without the guardian's 
sanction passes the property 
therein to the borrower, money 
being a non-mancipable thing, 
and so imposes a contractual 
obligation on the borrower. 

82. But a ward lending money 
without his guardian's sanction 
does not pass the property, and so 
does not impose a contractual 
obligation on the borrower, he can 
therefore recover back the money, 
if it exists, by vindication, that is, 
by claiming it as quiritary owner ; 
whereas a woman can only bring 
a personal action of debt. Whether 
a ward can maintain an action 
against the borrower in case the 
money has been spent by him, 
is a subject of controversy, for a 
ward can acquire a right of action 
against a person without the 
sanction of his guardian. 

83. On the contrary, both 
mancipable and non-mancipable 
things can be conveyed to women 
and to wards without their guar- 
dian's sanction, because they do 
not require his sanction to better 
their position. 



84. Accordingly, a debtor 
who pays money to a ward passes 
the property therein to the ward, 
but is not discharged of his obliga- 
tion, because a ward cannot re- 
lease a debtor from any liability 
without his guardian's sanction, as 



170 DE ADQVIRENDO RERVM DOMINIO [n. 86-96. 



tutoris auctoritate concessa est; 
sed tamen si ex ea pecunia locu- 
pletior factus sit et adhuc petat, 
per exceptionem doli mail sum- 
moueri potest. Inst. 1. c. 

85. Mulieri uero etiam sine 
tutoris auctoritate recte solui 
potest ; nam qui soluit, libera- 
tur obligaione, quia res nee 
mancipi, ut proxime diximus, 
a se dimittere mulieres etiam 
sine tutoris auctoritate possunt. 
quamquam hoc ita est, si acci- 
piat pecuniam ; at si non ac- 
cipiat, sed habere se dicat et 
per acceptilationem uelit debi- 
torem sine tutoris auctoritate 
Hberare, non potest. Inst. 1. c. 



without such sanction he cannot 
part with any right: if, however, 
he is profiting by the money, and 
yet demands further payment, be 
may be barred by the plea of 
fraud. 

85. A woman may be law- 
fully paid without her guardian's 
sanction, and the payer is dis- 
charged of liability, because, as 
we have just mentioned, a woman 
does not need her guardian's 
sanction for the alienation of a 
non-mancipable thing, provided 
always that she receives actual 
payment : for if she is not actually 
paid, she cannot formally release 
her debtor by acceptation (3 
169) unless with her guardian's 
sanction. 



80, cf. 1, 142-154, comm., 189-193. 

81, 82. For mutuum, see 3 90. If the money delivered by 
a ward could be traced it was recoverable from any one by real 
action (vindicatio) : if it had been consumed in bona fides a personal 
action, condictio certi, would probably lie against the borrower to 
recover an equivalent sum : if jt had been consumed in mala fides 
a personal action, ad exhibendum, would lie to recover an equivalent 
sum and damages, Inst. 2, 8, 2. 

85. The pupilage of women after attaining the age of twelve, 
i. e. the age of puberty, had become obsolete before the time of 
Justinian, and with it their incapacities of alienation. 



86. Adquiritur autem nobis 
non solum per nosmet ipsos, 
sed etiam per eos quos in po- 
testate manu mancipioue habe- 
mus ; item per eos seruos in 
quibus usum/ruc^um habe- 
mus ; item per homines liberos 
et seruos alienos quos bona 
fide possidemus. de quibus 
singulis diligenter despiciamus, 
Inst. 2, 9 pr. 

87. Igitur (quod) liberi 
nostri quos in potestate habe- 
mus, item quod serui nostri 
mancipio accipiunt uel ex tra- 



86. We may acquire property 
not only by our own acts but 
also by the acts of persons in 
our power, hand, or mancipium ; 
further, by slaves in whom we 
have a usufruct ; further, by free- 
men or another's slave of whom 
we are bona fide possessors ; let 
us now examine these cases in 
detail. 



87. The rights of property 
which children under power or 
slaves acquire by mancipation or 
tradition, or claims they acquire 



ii. 86-96.] PER QVAS PERSONAS ADQVIRATVR 171 



ditione nanciscuntur, siue quid 
stipulentur, uel ex aliqualibet 
causa adquirunt, id nobis ad- 
quiritur; ipge enim qui in po- 
testate nostra est nihil suum 
habere potest. et ideo si beres 
institutus sit, nisi nostro iussu 
hereditatein adire non potest ; 
et si iuberttibus nobis adierit, 
hereditas nobis adquiritur pro- 
inde atque si nos ipsi heredes 
instituti essemus; et eonuenien- 
ter scilicet legatum per eos no- 
bis adquiritur. Inst. 2, 9, 3. 
88. Dum tamen sciamus, 
si alterius in bonis sit seruus, 
alterius ex iure Quiritium, ex 
omnibus causis ei soli per eum 
adquiri cuius in bonis est. 

89. Non solum autem pro- 
prietas per eos quos in potestate 
habemus adquiritur nobis, sed 
etiam possessio ; cuius enim rei 
possession em adepti fuerint, id 
nos possidere uidemur; unde 
etiam per eos usucapio pro- 
cedit. Inst. 1. c, 

90. Per eas uero personas 
quas in manu mancipioue habe- 
nius proprietas quidem adqui- 
ritur nobis ex omnibus causis, 
sicut per eos qui in potestate 
nostra sunt; an autem possessio 
adquiratur, quaeri solet, quia 
ipsas non possidemus. 

91. De his autem seruis in 
quibus tantum usumfructum 
habemus ita placuit, ut quid- 
quid ex re nostra uel ex operis 
suis adquirant, id nobis adqui- 
ratur; quod uero extra eas 
causas, id ad dominum pro- 
prietatis pertineat. itaque si 
iste seruus heres institutus sit 
legatumue quod ei datum fue- 



by stipulation, or by any other 
title, are acquired for their supe- 
rior ; for a person subject to power 
is incapable of holding property, 
accordingly if instituted heir he 
must have the command of his 
superior to be capable of accepting 
the inheritance, and if he has the 
command of the superior and 
accepts the inheritance, it is 
acquired for the superior just as 
if the latter had himself been in- 
stituted heir : and the rule that it is 
the superior who acquires applies 
equally in the case of a legacy. 

88. But it is to be noticed 
that when one man is bonitary 
owner of a slave and another 
quiritary owner, whatever the 
mode of acquisition, it enures 
exclusively to the bonitary 
owner. 

89. Not only ownership is 
acquired for the superior but also 
possession, for the possession of 
the inferior is deemed to be the 
possession of the superior, and 
thus the former is to the latter 
an instrument of acquiring by 
usucapion, 

90. Persons in the hand or 
mancipation of a superior acquire 
ownership for him by all modes 
of acquisition just as children or 
slaves in his power ; whether they 
acquire possession for him is a 
controversy, as they are not them- 
selves in his possession. 

91. Respecting slaves in whom 
a person has only a usufruct, the 
rule is, that what they acquire 
by means of the property of the 
usufructuary or by their own 
labour is acquired for the usu- 
fructuary ; but what they acquire 
by any other means belongs to 
their proprietor. According!} 7 ", 
if such a slave is instituted heir 
or made legatee, the inheritance or 



172 DE ADQVIRENDO RERVM DOMINIO [IT. 86-96. 



rit, non mihi sed domino pro- 
prietatis adquiritur. 

Inst. 2, 9, 4. 

92. Idem placet de eo qui 
a nobis bona fide possidetur, 
siue liber sit siue alienus ser- 
uus. quod enim placuit de 
usufructuario, idem probatur 
etiam de bonae fidei possessore. 
itaque quod extra duas istas 
causas adquiritur, id uel ad ip- 
sum pertinet, si liber est, uel ad 
donrinum, si seruus eat. 

Inst. 1. c. 

93. SecZ bonae fidei posses- 
sor cum usuceperit seruum, quia 
eo modo dominus fit, ex omni 
causa per eum sibi adquirere 
potest. usufructuarius uero 
usucapere non potest : primum 
quia non possidet, sed habet 
ius utendi [et] fruendi ; deinde 
quia scit alienum seruum esse. 

Inst. 1. c. 

94. De illo quaeritur, an 
per eum seruum in quo usum- 
fructum habemus possidere ali- 
quam rem et usucapere possi- 
mus, quia ipsum non possidemus. 
per eum uero quern bona fide 
possidemus sine dubio et possi- 
dere et usucapere possumus. 
loquimur autem in utriusque 
persona secundum definitionem 
quam proxime exposuimus, id 
est si quid ex re nostra uel ex 
operis suis adquirant [id nobis 
adquiritur]. Inst. I.e. 

95. Ex his apparet per li- 
beros homines quos neque iuri 
nostro subiectos habemus neque 
bona fide possidemus, item per 
alienos seruos, in quibus neque 
usumfructum habemus neque 
iustam possessionem, nulla ex 
causa nobis adquiri posse, et 



legacy is acquired, not for the 
usufructuary, but for the owner. 

92. The possessor in good 
faith of a freeman or a slave 
belonging to another is held to 
have the same rights as a usu- 
fructuary ; what they acquire on 
any other account than the two 
we mentioned, belonging in the 
one case to the freeman himself in 
the other to the rightful owner. 



93. But after a possessor in 
good faith has acquired the owner- 
ship of a slave by usucapioii, since 
he has thus become owner of him, 
all acquisitions by the slave enure 
to his benefit. A usufructuary 
cannot acquire a slave by usuea- 
pion, for, in the first place, he has 
not possession, but only a right 
of usufruct ; and in the second 
place, he knows that the slave 
belongs to some one else. 

94. It is a question whether 
a slave can be an instrument of 
possession and usucapion for a 
usufructuary, the slave not being 
himself in his possession. A slave, 
undoubtedly, can be the instru- 
ment of possession and usucapion 
for a bona fide possessor. Both 
cases are subject to the limitation 
made above as to things acquired 
by the slave by means of the 
usufructuary's property or by his 
own labour. 



95. It appears that freemen 
not subject to my power nor in 
my bona fide possession, and 
slaves of other people of whom 
I am neither usufructuary nor 
lawful possessor, cannot under 
any circumstances be instruments 
of acquiring for me, and this is 



ii. 86-96.] PER QVAS PERSONAS ADQVIRATVR 173 

hoc est quod uulgo dicitur per the import of the dictum that 

extraneam personain nobis ad- a stranger to the family cannot 

quiri non posse, tantum de be an instrument in the acquisi- 

possessione quaeritur, an < per tion of anything; only in respect 

extraneam} perwmam nobis of possession there is a contro- 

adquiratur. Inst. 2, 9, 5. sj as to whether it cannot be 

acquired through a stranger. 

96. In summa sciendum 96. Finally, it is to be ob- 

est his qui in potestate manu served that persons under power, 

mancipioue sunt nihil in iure in hand, or in mancipium, cannot 

cedi posse ; cum enim istarum acquire by surrender before a 

personarum nihil suum esse magistrate, for, as nothing can 

possit, conueniews est scilicet, belong to such persons, it follows 

ut nihil suum esse in iure uindi- that the 7 cannot vindicate any- 

care possint. ^8 as their own before a **&' 

strate. 

87. Manus and mancipium had ceased to exist before the time 
of Justinian, and patria potestas was much reduced. The gradual 
steps by which filiusfamilias acquired an independent proprietary 
position have been already described, 1 55, comm. The reduction 
of patria potestas, and the abolition of the dependent law of Agnation, 
may be almost regarded (so fundamental were these institutions in 
jus civile) as the abrogation of the jus civile, and the substitution 
in its stead of what the Komans called jus gentium. 

88. The power of acquiring by the acts of a slave and the power 
of manumission, so as to make a slave Latinus, accompany Bonitary, 
not Quiritary, ownership, where these are separated, 1 35, 54, 
3 166. 

90. It is to be noticed, as Professor Muirhead points out in his 
note to this passage, that no reason is given for making a distinction 
between persons in manu mancipiove and nliifamilias and slaves in 
respect of the acquiring possession for their superior. 

94. Dig. 41, 2, 1, 8 Per eum, in quo usumfructum habemus, 
possidere possumus, sicut ex operis suis adquirere nobis solet, nee ad 
rem pertinet, quod ipsum non possidemus : nam nee filium. 

95. All Dispositions or modes of conferring either rights against 
one (jus in personam), or rights against the world (jus in rem), are 
divisible, as we have before mentioned, into two parcels ; an essential 
portion, some mental or internal act, the Intention of the parties ; 
and an evidentiary portion, the Execution of this intention, its 
incorporation in some overt act. Can these elements of title be 
contributed by different persons? Can the Intention of disposing, 
that is, of acquiring or aliening, reside in one, and can its Execution, 
its external manifestation, be delegated to a representative? 

Originally, that is, under the ancient civil law, representation was 



174 DE ADQVIRENDO RERVM DOMINIO [n. 86-96. 

only admitted when the representative was in an inferior status to 
the principal, was his slave, or subject to his potestas, manus, or 
mancipium, 95. . This limitation was found to be inconvenient, 
when, in the progress of Roman conquest, Roman citizens became 
proprietors in remote parts of the world ; and Possession was 
allowed to be acquirable by the instrumentality of extranea persona, 
that is, of a person who stood in no relation of inferiority to the 
acquirer, which though a doubtful point in the time of Gaius, was 
finally settled by a constitution of the Emperor Severus. In a civil 
solemnity, like mancipation, a man could not be represented by an 
independent agent ; but when the transfer of possession (traditio) 
became a mode and ultimately the universal mode of transferring 
dominion, it followed that Ownership (dominium), as well as Possession, 
could be acquired by the agency of libera persona, if the person making 
traditio of a thing to the agent was himself owner of it, Inst. 2, 5. 

The acquisition of Obligations or personal rights by brokerage of 
an independent agent was less perfectly developed. In fact Roman 
law adhered throughout its history to the rule that an agent could only 
contract rights for himself and not for his principal, though means 
were taken to circumvent this restriction as far as possible. The 
process employed for this purpose was a duplication of the relation of 
agency (mandatum). A as principal (dominus) appointed B his agent 
(procurator). B then contracted with a third party in his own name, 
and, in order to transfer the benefit of his contract to A, he ceded 
to him his right of action, that is to say, B, as principal, in his turn 
made A his agent (procurator in rem suam), whereby A was able to 
sue in the name of B, and obtain judgement on his own account. 
Finally, the praetor allowed the principal to sue immediately, with- 
out an express mandate, if intention to assign was shown, by bringing 
a utilis actio, 3 163, comm. 

96. We might have expected that, as those subject to potestas 
can acquire for their superiors by Mancipatio, 87, so they could also 
acquire by In jure cessio, especially as the same form of words 
Hunc ego hominem ex jure Quiritium meum esse aio was used in 
Mancipatio, 1 119, and in Vindicatio, 4 16. It seems, however, that 
in Mancipatio the formula could be changed to Hanc rem ex jure 
Quiritium Lucii Titii domini mei esse aio, 3 167 ; and that a similar 
modification was not admissible in in jure cessio. It follows that 
an inferior (filius, qui in mancipio est, or servus) could acquire for 
his superior rural servitudes, but not urban or personal servitudes. 
29, 30, these being only created by in jure cessio ; not, that is to 
say, as res singulae : for as parts of a rerum universitas these and all 
other rights could be acquired for a superior by an inferior by making 
aditio of an hereditas with the sanction of the superior, 188 ; and 



ii. 97-108.] DE HEREDITATIBVS 



175 



even as res singulae these rights could he acquired for a superior by 
an inferior by title of legatum ; that is, if they are conferred by 
a testator on the inferior as legatarius, Vat. frag. 51. 

As Hereditas includes Obligations (res incorporales), active and 
passive, as well as Dominium (res corporalis), the consideration of 
Obligation should, theoretically speaking, precede the consideration 
of Inheritance ; in an elementary exposition like the present, how* 
ever, no practical inconvenience is occasioned by postponing the con- 
sideration of Obligations, while we gain by exhausting the subject of 
jus in rem before proceeding to the examination of jus in personam. 

We may remember that Hereditas, as well as Servitudes and 
Obligations, was included by the Komans under the term Kes 
incorporales, 14. The whole division of rights, however, into 
Res corporales and Res incorporales is unsatisfactory ; for, as we 
have already noticed, it was only from confusion of thought that 
Dominium was held to be Res corporalis ; for all Rights are, really, 
Res incorporales. 

QYIBYS MODIS PER YNIVEESITATEM EES ADQVIRANTVR. 



97. Hactenus tantisper 
admonuisse sufficit" quemad- 
modum singulae res nobis ad- 
quirantur. nam legatorum ius 
quo et ipso singulas res adqui- 
rimus opportunius alio loco 
referemus. uideamus itaque 
nunc quibus modis per uniuer- 
sitatem res nobis adquirantur. 
Inst. 2, 9, 6. 

98. Si cui heredes facti 
sumus, siue cuius bonorum 
possessionem petierimus, siue 
cuius bona emerimus, siue 
quein adoptauerimus,siue quam 
in manum ut uxorem receperi- 
mus, eius res ad nos transeunt. 
Inst. 1. c. 

99. Ac prius de heredita- 
iibus dispiciamus quarum du- 
plex condicio est : nam uel ex 
testamento uel ab intestato ad 
nos pertinent. Inst. 1. c. 

100. Et prius est, ut de his 
dispiciamus quae nobis ex 
testamento obueniunt. 

Inst. 1. c. 



97. So much at present re- 
specting the modes of acquiring 
SINGLE rights ; for bequest by way 
of legacy, another title whereby 
single rights are acquired, will 
find a more suitable place in a 
later portion of our treatise. We 
proceed to the titles whereby an 
AGGREGATE of rights is acquired. 

98. If we become civil heirs 
of anyone, or claim praetorian 
succession to his property, or 
purchase the estate of an insol- 
vent, or adopt a person sui juris, 
or receive a wife into our hand, 
the whole property of those per- 
sons is transferred to us in an 
aggregate mass. 

99. Let us begin with in- 
heritances, whose mode of devo- 
lution is twofold, according as 
a person dies testate or intestate. 

100. And we first treat of 
acquisition by will. 



176 SVCCESSIO PER VNIVERSITATEM: [IT. 97-108. 



101. Testamentorum autem 
genera initio duo fuerunt : nam 
aut calatis coinitiis testamen- 
tum faciebant, quae comitia bis 
in anno testamentis faciendis 
destinata erant, aut in procin- 
ctu, id est cum belli causa arma 
sumebant ; procinctus est enim 
.expeditus et armatus exercitus. 
alterum itaque in pace et in otio 
faciebant, alterum in proelium 
exituri. Inst. 2, 10, 1, 

& 102. Accessit deinde ter- 



tium genus testamenti quod 
per aes et libram agitur. qui 
neque calatis comitiis neque 
in procinctu testamentum fece- 
rat, is si subita morte urgue- 
batur, amico familiam suam, 
id est patrimonium suum, man- 
cipio dabat, eumque rogabat 
quid cuique post mortem suam 
dari uelle. quod testamentum 
dicitur per aes et libram, sci- 
licet quia per mancipationem 
peragitur. Inst. 1. c. 

103. Sed ilia quidem duo 
genera testamentorum in de- 
suetudinem abierunt ; hoc uero 
solum quod per aes et libram 
fit in usu retentum est. sane 
nunc aKter ordinatur quam 
olim solebat. namque olim 
familiae emptor, id est qui a 
testatore familiam accipiebat 
mancipio, heredis locum opti- 
nebat, et ob id ei mandabat 
testator quid cuique post mor- 
tem suam dari uellet ; nunc 
uero alius heres testamento in- 
stituitur, a quo etiam legato 
relmquuntur, alius dicis gratia 
propter ueteris iuris imitatio- 
nem familiae emptor adhibe- 
tur. Inst. 1. c. 

104. Eaque res ita agitur : 
qui facit (testamentum), adhi- 



101. Wills were originally of 
two kinds, being made either at 
the comitia calata, which were 
held twice a year for making 
wills, or in martial array, that is 
to say, in the field before the 
enemy, martial array denoting 
an army equipped and armed for 
battle. One kind, then, was used 
in time of peace and quiet, the 
other by persons about to go to 
battle. 

102. More recently, a third 
kind was introduced, effected by 
bronze and balance. A man who 
had not made his will, either in 
the comitia calata or in martial 
array, being in apprehension of 
approaching death, used to convey 
his estate by mancipation to a 
friend, whom he requested to 
distribute it to certain persons in 
a certain manner after his death. 
This mode of testamentary dispo- 
sition is called the will by bronze 
and balance, because it is carried 
out by the process of mancipation. 

103. The first two modes have 
fallen into desuetude, and that 
by bronze and balance, which 
alone survives, has undergone a 
transformation. In former times 
the vendee of the estate, the 
alienee by mancipation from the 
testator, held the place of heir, 
and received the testator's in- 
structions respecting the dispo- 
sition of his property after his 
death. At the present day, the 
person who is instituted heir, 
and who is charged with the 
bequests, is different from the 
person who, for form's sake, and 
in imitation of the ancient law, 
represents the purchaser. 



104. The proceedings are as 
follows: The testator having sum- 



ii. 97-108.] DE TESTAMENTIS ORDINANDIS 177 



bitis, sicut in ceteris mancipa- 
tionibus, v testibus ciuibus Ro- 
manis pu&eribus et libripende, 
postquam tabulas testament! 
scripserit, mancipat alicui dicis 
gratia familiam suam ; in qua 
re his uerbis familiae emptor 

Utitur FAMILY PECVNI^lQVE 
TV A ENDO MANDATELAM CVSTO- 
DELAMQVE MEA3f, QVO TV IVRE 
TE8TAMENTVM FACEEE POSSIS 
SECVNDVM LEGEM PVBLICAM, 

HOC AEKE, et ut quidam ad- 

IClunt AENEAQVE LIBRA ESTO 

Mini EMPTA ; deinde acre per- 
cutit libram, idque aes dat te- 
statori uelut pretii loco ; deinde 
testator tabulas testamenti te- 
nens ita dicit HAEC ITA VT IN 

HIS TABVLIS CERISQVE SCRIPTA 
SVNT, ITA DO ITA LEGO ITA 
TESrOR ITAQVE VOS QVIRITES 
TESTIMONIVM MIHI PERHIBE- 

TOTE ; et hoc dicitur nuncu- 
patio : nuncupare est enim pa- 
lam nominare, et sane quae 
testator specialiter in tabulis 
testamenti scripserit, ea uidetur 
generali sermone nominare at- 
que confirmare. 

105. In testibus autem non 
debet is esse qui in potestate 
est aut familiae emptoris aut 
ipsius testatoris, quia propter 
ueteris iuris imitationem totum 
hoc negotium quod agitur te- 
stamenti ordin&ndi gratia cre- 
ditur inter familiae emptorem 
agi et testatorem ; quippe olim, 
ut proxime diximus,is qui fami- 
liam testatoris mancipioaccipie- 
bat heredis loco erat ; itaque re- 
probatum est in ea re domesti- 
cum testimonium. Inst.2, 10,9. 

106. Unde et si is qui in 
potestate patris est familiae 
emptor adhibitus sit. pater eius 



moned, as is done in other man- 
cipations, five witnesses, all Bo- 
man citizens of the age of pu- 
berty, and a holder of the balance, 
and having already reduced his 
will to writing, makes a pro-forma 
mancipation of his estate to a cer- 
tain vendee, who thereupon utters 
these words : ' Thy family and 
thy money into my charge, ward, 
and custody I receive, and, in 
order to validate thy will con- 
formably to the public enactment 
(the Twelve Tables), with this 
ingot, and ' as some continue 
'with this scale of bronze, unto 
me be it purchased.' Then with 
the ingot he strikes the scale, 
and delivers the ingot to the tes- 
tator, as by way of purchase- 
money. Thereupon the testator, 
holding the tablets of his will, 
says as follows : ' This estate, as 
in these tablets and in this wax is 
written, I so grant, so bequeath, 
so declare ; and do you, Quirites, 
so give me your attestation.' 
These words are called the nun- 
cupation, for nuncupation signi- 
fies public declaration, and by 
these general words the specific 
written dispositions of the testator 
are published and confirmed. 

105. For the part of witness, 
it is a disqualification to be in the 
power of the purchaser of the es- 
tate or of the testator, because, the 
old proceeding furnishing the 
model, the whole testamentary 
process is supposed to be a trans- 
action between the purchaser and 
the testator ; and in old times, as 
was just observed, the purchaser 
was in the place of the heir ; 
wherefore the testimony of per- 
sons in the same family was re- 
jected. 

106. Hence too, if the vendee 
is a filiusfamilias, neither his 
father nor any one in his father's 



178 SVCCESSIO PER VNIVERSITATEM [n. 97-108. 



testis esse non potest ; ac ne is power, his brother, for instance, 
quidem qui iu eadein potestate is competent to attest ; on the 
" . . -i . ! other hand if a filiusfamilias, 

after his discharge from service, 
make a will of his military pecu- 
lium, neither his father nor any 



est, uelut frater eius. sed si 
films familias ex castrensi pe- 
culio post missionem faciat 
testamentum, nee pater eius 
recte testis adhibetur nee is qui 
in potestate patris est. 

107. De libripende eadem 
quae et de testibus dicta esse 
intellegemus ; nam et is testium 
numero est. 

108. Is uero qui in pote- 
state heredis aut fegatarii est, 
cuiusue heres ipse aut legata- 
rius in potestate est, quique in 
eiusdem potestate est, acifeo 
testis et libripens adhiberi po- 
test, ut ipse quoque heres aut 
legatarius iure adhibeantur. 
sed tamen quod ad heredem 
pertinet quique in eius pote- 
state est cuiusue is in potestate 
erit, minime hoc iure uti debe- 
mus. 



one in his father's power is quali- 
fied to be a witness. 

107. The same rules apply 
to the balance- holder, for the 
balance-holder is reckoned as a 
witness. 

108. Not only is a person 
who is in the power of the heir 
or legatee, or a person who has 
power over the heir or legatee, 
or a person in the same power 
as the heir or legatee, capable of 
being witness or balance-holder, 
but the heir or legatee himself 
can act in this character. How- 
ever, it is advisable that as regards 
the heir, and those in his power, 
and the person in whose power 
he is, the testator should not avail 
himself of this right. 



97, 98. On the death of a civis all his rights and obligations 
(except those of a purely personal character, such as ususfructus and 
liability for delict) were regarded as constituting a universitas juris 
or undivided succession (supra, p. 126) called hereditas. The here- 
ditas, in fact, was the legal personality of the deceased, and so the 
successor to it, called heres, had exactly the same position in re- 
spect of the entire family property as the deceased paterfamilias. 
Hence he was personally liable to pay all the debts in full, as if he 
had himself contracted them, cf. Sohm, 108. 

In the corresponding passage of Justinian's Institutes bonorum 
emptio and conventio in manum, being obsolete, are not mentioned. 

101-103. A will is thus defined by Ulpian: Testamentum 
est mentis nostrae justa contestatio, in id sollemniter facta ut post 
mortem nostram valeat, 20, 1. Testamentary disposition was an 
interference with the rights of family succession under the law of 
intestacy, which at first seemed so great an innovation as to require 
the sanction of the gentes. Accordingly the will executed in the 
Comitia Calata, or convocation of the gentes, was really a private 
law (perhaps originally instituted as a modified form of adoption, 
when a man had no children to succeed to his property) ; and even 
the will in procinctu, when we remember the original identity at 



ii. 97-108.] DE TESTAMENTIS ORDINANDIS 179 

Rome of the civil and military organization, may be regarded as the 
legislative act of the curiae in military convocation. The essential 
characteristic of this will was the nomination of a heres. Hence so 
important became the institution of a heres to the validity of a will 
in Roman law, that a Roman testament might be simply defined 
as the institution of a heres. 

The mancipatory will, or will by bronze and scale, probably began 
to supersede the older form, which was perhaps confined to patricians, 
when the Twelve Tables gave legal force to the nuncupative part of 
mancipation (Cum nexum faciet mancipiranque, uti lingua nuncu- 
passit, ita jus esto, Festus. ' In contract or conveyance by bronze 
and balance, the oral declaration shall h'ave legal force '), and had ex- 
pressly recognized in every paterfamilias, whether patrician or plebeian, 
a power of testamentary disposition (Uti legassit super [familia], 
pecunia, tutelave suae rei, ita jus esto. Ulpia/n, 11, 14). 

The introduction of writing marks an era in mancipatory wills. 
Originally, the testator gave oral instructions to the familiae emptor, 
or purchaser of the family property, in the presence of the witnesses, 
as to the terms on which the property was to be held by him and 
distributed after the testator's death. These oral instructions, forming 
the lex mancipii, or conditions of the conveyance, called nuncupatio, 
served as a means, under the clauses -of the Twelve Tables above cited, 
of nominating a heres. Hence a special lex curiata for this purpose 
was no longer necessary, and the familiae emptor, instead of being a 
kind of trustee for carrying out the testator's wishes, became a mere 
formality, used simply for the purpose of making the will mancipatory. 
Afterwards, forthe sakeof secirecy, the testator committed his intentions 
to writing, and the nuncupation became a mere form of publication, 
or general ratification of the directions contained in the tablets which 
the testator held in his hand, when he executed the mancipation. 

105. It is an intelligible rule, that a person interested in the 
validity of a will should be incompetent as a witness ; and, when 
the familiae emptor was in the place of the heir, it was reasonable 
to disqualify for attestation any one united in interest to him. But 
when the mancipation was purely fictitious (imaginaria mancipatio, 
Ulpian, 20, 2 ; imaginaria venditio, Inst. 2, 10, 1), one sesterce being 
paid as the nominal price, and the imaginary vendee distinct from 
the heir, the continuance of this disqualification shows the tendency 
of the Romans to venerate rules after the principles on which they 
were founded had ceased to operate. In the meantime the heir, 
who was, strictly speaking, really interested, was competent to be 
a witness. Cicero, for instance, mentions that he and Clodius were 
both witnesses to a will in which they were appointed heirs, Pro 
Milone, 18, 48; but in the time of Gaius, as we see by the text, 

N a 



180 SYCCESSIO PER VNIVERSITATEM [n. 97-108. 

108, such attestation was at least questionable, and when Ulpian 
wrote it seems to have been inadmissible. The whole law on this 
subject was, however, deranged : totum jus conturbatum erat, Inst. 
2, 10, 10: the transference of interest from the familiae emptor to 
the heres not being accompanied by a corresponding transference of 
testimonial disqualification from the relatives of the familiae emptor 
to the relatives of the heres. Justinian converted the advice of Gaius 
into a fixed rule of law, and disabled the heir and persons united to 
Mm by the bond of potestas from giving attestation, Inst. 2, 10, 10. 
Legatees retained their competency to attest. 

106. This statement of Gaius respecting a will of castrense 
peculium is inadvertently transferred to Justinian's Institutes, 2, 
10, 9, but is inconsistent with a dictum of Ulpian's in the Digest : 
Per contrarium quaeri potest, an pater ejus, qui de castrensi peculio 
potest testari, adhiberi ab eo ad testamentum testis possit. Et 
Marcellus libro decimo Digestorum scribit posse : et frater ergo 
poterit, Dig. 28, 1, 20, 2. We have here, then, a case of Antinomy 
(contradictory laws) in Justinian's legislation. Vangerow, 444, solves 
the antinomy by supposing that Ulpian speaks of a will made during 
service ; the Institutes, like Gaius, of a will made post missionem. 

By English law, 1 Viet. c. 26, any devise or legacy to an attesting wit- 
ness is void, and the evidence of the witness admissible, and no person 
is incompetent to attest on account of being appointed executor. 

In another form of will deriving its validity from the authority 
of the praetor, the form of mancipation was dropped, and the only 
authentication required was the apposition of the seals of seven 
attesting witnesses. Under such a will, however, the successor could 
not take the legal estate or hereditas, but only possession of the goods 
or bonorum possessio, 119, 120, 148. 

Before the time of Justinian, a form of will had been established 
deriving its validity from three orders of legislation (jus tripertitum), 
the civil law, the praetorian edict, and the imperial constitutions. 
In accordance with the last, the witnesses were required to sign 
or subscribe their names ; in accordance with the praetorian edict 
they were required to attach their seals (signacula) ; and in accordance 
with the civil law, their number was required to be seven (a number 
obtained by adding the libripens and familiae emptor to the five 
witnesses of the mancipation), and the whole formality of attestation 
and publication was required to be continuous (unitas actus), that is, 
to proceed from beginning to end without interruption or inter- 
position of any other business as one act. Inst. 2, 1 0, 3. 

Another form of will is mentioned by Justinian as perfectly valid 
at civil law, the Nuncupative will, consisting solely of an oral 
declaration in the presence of seven witnesses, Inst. 2, 10, 14. A 



ii. 109-111.] DE TESTAMENTIS MILITVM 



181 



modification of this produced one of the most solemn forms of testa- 
ment. The nuncupation was made before the Praeses provinciae, 
or a judex ; and thereupon a memorandum or protocol (insinuatio) of 
the testator's dispositions was made at length in the public records 
(acta or gesta) of the proceedings of the governor or court. This 
was called a public testament. Cod. 6, 23, 19. 

By English law, 1 Viet. c. 26, only two witnesses are required to 
a will, whether of real or personal estate. The will must be in 
writing, signed at the end by the testator, or by some other person 
in his presence and by his direction ; and such signature must be 
made or acknowledged by the testator in the presence of the two 
witnesses, who must be present at the same time, and who must 
attest and subscribe the will in the presence of the testator. 

[DE TESTAMENTIS MILITVM.] 
109. Sed haec diligens ob- 109. But from these strict 

seruatio in ordinandis testa- rules in the execution of a will 

mentis militibus propter ni- 

miam inperitiam const iiuiiom- 

bus principum remissa est. 

nam quamuis neque legitimum 

numerum testium adhibuerint 

neque uendidermi familiam 

neque nuncupauerint testamen- 

tum, recte nihilo minus testan- 

tur. Inst. 2, 1 1 pr. 

110. Praeterea permissurn 110. Moreover, they may 

est iis et peregrines et Latinos make aliens and Latini (Juniani) 

instituere heredes uel iis legare, their heirs or legatees, whereas 

cum alioquin peregrini quidem under other wills an alien is dis- 

ratione ciuili prohibeantur qualified from taking a succession 

or legacy by the civil law, and 
Latini by the lex Junia. 

1 1 1. Celibates also, whom the 
lex Julia disqualifies for taking 
successions or legacies, and child- 
less persons whom the lex Papia 



soldiers, in consideration of their 
extreme ignorance of law, have 
by imperial constitutions a dis- 
pensation. For neither the legal 
number of witnesses, nor the cere- 
mony of mancipation or of nun- 
cupation, is necessary to give force 
to their will. 



capere hereditatem legataque, 
Latini uero per legem luniam. 
111. Caelibes quoque qui 
lege lulia hereditatem legata- 
que capere uetantur ; item orbi, 
id est qui liberos non habent, 
quos lex 



(48 uersus in C perierunt] 
-prohibentur hi 



(6 uersus in C legi nequeunt) 

1 eius more faciant | 

|xxx annorum 1 

(8 uersus in C legi nequeunt) 

1 res 1 



prohibits from taking more than 
half a succession or legacy (see 
286), are exempt from these 
incapacities under the will of a 
soldier. 



(2 uersus in C legi nequeunt] 



182 SVCCESSIO PER VNIVERSITATEH [n. 112-114. 



109. The military will could only be executed during actual 
service, and in this period only when the soldier was in camp, not 
when he was at home or on leave of absence. A will made after 
the soldier's discharge from service or during his absence from camp 
was governed by the same rules as the will of a civilian (paganus). 
A military will, executed without the ordinary formalities, only 
remained valid during a year after discharge from service. Inst. 
2, 11,3. 

TESTAMENTI FA-CTIO; 

112. ex auctoritate dim 112. But a senatusconsult 
Hadriani senatuseonsultum under the late emperor Hadrian, 

as already mentioned (1 1 15 a), 
made coemption unnecessary, and 
permitted women to make a will 
on attaining 1 2 years of age, only 
requiring their guardian's sanc- 
tion if they were still in a state 



factum est quo permissum est 
! feminis etiam sine co- 



emptione te|stamentum facere, 
si modo non minores essent 
annortim xi I, scilicet ut quae 
tutela liberatae non essent, 
tutore auctore testari deberent. 

113. Videntur ergo melio- 
ris condicionis esse feminae 
quam masculi ; nam masculus 
minor annorum xini testa- 
men turn facere non potest, 
etiamsi tutore auctore testa- 
mentum facere uelit, femina 
uero post xn annim testa- 
menti f&ciendi ius nanciscitur, 

114. Igitur si quaeramus an 
ualeat testamentum, inprimis 
aduertere debemus an is qui 
id fecerit habuerit testamenti 
factionem ; deinde si habuerit, 
requiremus an secundum iuris 
ciuilis regulam festatus sit, ex- 
ceptis militibus, qui&its propter 
nimiam inpeTiti&m, ut diximus, 
quomodo uelint uel quomocfo 
possini, permittitur testamen- 
tum facere. 



of pupilage. 

1 1 3. Women, then, are in a 
better legal position than males, 
for a male under 14 years of age 
cannot make a will, even with 
his guardian's sanction, but a 
female acquires testamentary ca- 
pacity as soon as she is 12 years 
old. " 



1 1 4. Accordingly, to determine 
the validity of a will, we must 
first ascertain whether the testator 
had testamentary capacity ; next, 
if he had, whether he conformed 
to the requisitions of the civil law 
in its execution, with this reserva- 
tion, that soldiers, on account of 
their extreme ignorance of law, 
as was mentioned, are allowed to 
make their wills in any way they 
like and in any way they can. 



112. On the lost leaf of the Veronese codex Gaius proceeded to 
mention the classes who were incompetent to make a will. Among 
these would be the filiusfamilias, who could only dispose of his 
peculium castrense. Cf. Inst. 2, 12 ; Ulp. 20, 10 ; Epit. 2, 2, 1. 

114. Testamenti factio is a term applied, (A) to the Testator, 
Testamenti factio activa ; (B) to the object of his bounty, Testamenti 



ir. 112-114] TESTAMENTI FACTIO 183 

factio passiva ; (C) to the witnesses. Let us consider it in each of 
these applications. 

(A) Testament! factio activa sometimes comprehends all the con- 
ditions (physical included) of testamentary capacity, and then it 
excludes children below the age of puberty and lunatics : but the 
proper meaning of testamenti factio is the qualification by Status for 
mancipatio, and consequently for the mancipatory will : that is to 
say, it is equivalent to Commercium, and therefore is ascribed to 
all cives, all Latini, and all aliens w,ho have received a grant of 
commercium. 

To make a will, however, a testator must have not only personal 
capacity, but he must also have property to leave. This latter 
condition is necessarily wanting to the Filiusfamilias and to the 
Latinus Junianus : in their case, therefore, Testamenti factio does 
not mean capacity of being testator, but of playing some other 
part in the mancipatory will ; i. e. of being heir, or legatee, or witness. 

The testator's capacity is required at two periods : at the time of 
making the will and at the time of the testator's death. The strict 
civil law also required the continuance of capacity during the in- 
terval between these dates : but the praetor disregarded any inter- 
vening incapacity (capitis diminutio minima), and, notwithstanding 
such an event, gave the will efficacy by granting to the heir, not 
the civil hereditas (which was beyond his power), but juxta-tabular 
possession (bonorum possessio juxta or secundum tabulas), 145-147, 
comm., Ulpian 23, 6. Dig. 37, 11, 1, 8 Exigit praetor ut is cujus 
bonorum possessio datur utroque tempore jus testamenti faciendi 
habuerit, et quum facit testamentum et cum moritur. . . . Sed si 
quis utroque tempore testamenti factionem habuerit, medio tempore 
non habuerit, bonorum possessio secundum tabulas peti poterit. 

Two other cases of incapacity were cured by the principle of 
postliminy and the lex Cornelia testamentaria : if a testator suffered 
capitis diminutio maxima by falling into the hands of the enemy, 
when he returned from captiyity his will reacquired validity by the 
operation of postliminy : if he never returned his will obtained 
validity by the fiction that he died a moment before his capture. 
Dig. 28, 3, 6, 12 Quatenus tamen diximus ab hostibus capti testa- 
mentum irritum fieri, adjiciendum est postliminio reversi vires suas 
recipere jure postliminii, aut si ibi decedat, lege Cornelia confirinari. 
Dig. 49, 15, 18 In omnibus partibus juris, is, qui reversus non 
est ab hostibus, quasi tune decessisse videtur, cum captus est. 
Ulpian, 23, 5. 

The physical conditions of testamentary incapacity (infancy, lunacy) 
are only critical at the date of making the will. 

(B) The Honoratus or the recipient of the testator's bounty, 



184 SVCCESSIO PER VNIVERSITATEM [n. 112-114. 

whether heres or legatarius, required testament! factio passiva, which 
like testamenti factio activa meant Commercium or capacity of taking 
part in mancipatio. Accordingly both a filiusfamilias and a Latinus 
could be heres or legatee (for the limitation, however, of the capacity 
of Latinus Junianus by the lex Junia see below). This capacity 
must exist at three periods (tria tempora) : the making of the will, 
the death of the testator, and the acquisition of the succession by the 
heres (aditio). The interval between the making of the will and 
the death of the testator was immaterial, Inst. 2, 19, 4, Dig. 28, 5, 
60, 4. The interval between the death of the testator and the aditio 
of the heres was material, because on the first heres institutus be- 
coming incapable the inheritance would be instantaneously delated 
(offered for acceptance) to the heres substitutus or to the heres ab 
intestate. 

The looking to the capacity of Honoratus at the date of making 
the will as well as later, though apparently based on no motives of 
testamentary policy, but only due to the mancipatory form of the 
primitive will, which was ostensibly a mancipatio inter vivos, 
i. e. a disposition taking effect in the lifetime of the mancipator, 
was retained in Justinian's legislation after wills had lost their 
mancipatory form. 

In respect of Honoratus it is necessary to distinguish institutio 
from acquisitio (aditio) ; and testamenti factio passiva, competence 
for institution, from capacitas or jus capiundi, competence for 
acquisition. Testamenti factio passiva was required at the date of 
the making of the will ; and in its absence a disposition was deemed 
to be unwritten (pro non scripto habetur) ; and the property dis- 
posed of went by Accretio to the other heredes scripti. Capacitas, 
in its distinctive sense, was only required at the date of acquisition ; 
and in its absence the unacquired property became caducous, and 
devolved in part or in whole to persons fulfilling certain conditions 
or to the state, as determined by the laws of caducity. 

Incapaces, or persons who, from want of capacity to take, forfeited 
part or the whole of the testator's bounty, comprehended : 

(1) Latini Juniani, who were made incapable by the lex Junia, 
1 23, 2 110, 275. Of. Ulpian, 17, 1. 

(2) The unmarried (caelibes) were totally, and the married but 
childless (orbi) were made partially incapable by the lex Papia 
Poppaea. 

(3) Husband or wife (vir et uxor), who by the same law could 
only take, as between one another if they had no children, one 
tenth of a heritage, and another tenth for every living child by a 
former marriage : further, another tenth for a common child that 
lived to the day of naming (nominum dies), or as Mommsen (Staatsr. 



ii. 115-122.] BONORVM POSSESSIO TESTATI 185 

3, 202) would read the MS. of Ulpian, after the ninth day (nono die), 
or two tenths for two such children, but not more. In addition to 
their tenth, the husband or wife who were childless might have the 
usufruct of a third part, and, if they had had children, the property 
in a third, Ulpian, 1, 15. 

These disqualifications were not recognized in Justinian's legis- 
lation : so that at that period the distinction between capacitas and 
testamenti factio passiva had lost much of its importance. We find, 
however, under Justinian the penalty of forfeiture (ereptio, ablatio) 
for Indignitas. Indigni were persons deemed on various grounds 
unworthy of the testator's bounty. The devolution of the property 
intended for them followed different rules from those which governed 
other cases of Incapacity. See 151, comm. 

(C) Testamenti factio was further applied to designate the quali- 
fication of the witnesses to a will. This was only required to exist 
at one period, the date of the execution of the will. 

1 1 3. By English law, the age at which a person was competent 
to make a will was formerly the same as by Roman law, namely, 
12 years for females, 14 years for males ; but now, by 1 Viet. c. 26, 
no one is competent to make a will before attaining 2 1 years of age. 

BONORVM POSSESSIO SECVNDVM TABVLAS. 

115. Non tamen, ut iure 115. The civil law, however, 

ciuili uale&i testamentum, suf- is not satisfied by our observing 

licit ea obseruado quam supra the requisitions hereinbefore ex- 

exposuimus de familiae uendi- plained respecting mancipation, 

tione et de testibus et de nuncu- attestation, and nuncupation, 
pationibus. 

116. (Seel} ante omnia 116. Above all things, we 

requirendum est, &n institutio must observe whether the in- 

heredis sollemni more facta sit ; stitution of an heir was in solemn 

nam aliter facta institutione form ; for if the institution of an 

nihil proficit familiam testa- heir was not in the prescribed 

toris ita uenire testesque ita form > {i is unavailing that the 

adhibere et ita nuncupare te- mancipation, attestation, nuncu- 

stamentum, ut supra diximus. P atlon > were re S ular ' 

& 117. Sollemnis autem in- , ,, 

stitutio haec est TITIVS HERES . , ' 1 V^' 

, . n . institution is this: 'iJe litius 

ESTO; sedet ilia mm conpro- heir> , The followi also 

bata uidetur TITIVM HEREDEM se ms now to be recogni/ed . * j 

ESSE IVBEO; at ilia non est order that Titius be my heir , 

conprobata TITTVM HEREDEM <i w j s h Titius to be my heir' 

ESSE VOLO ; sed et illae a pie- j s no t admitted ; and most reject 

risque inprobatae suni TITIVM the following: ' I institute Titius 

HEREDEM INSTITTO, item HERE- my heir,' ' I make Titius my 

DEM FACIO. heir.' 



186 SVCCESSIO PER VNIVERSITATEM [11. 115-122. 



118. Obseruandum prae- 
terea est, ut si mulier quae in 
tutela est faciat testamentum, 
tutore auctore facere debeat ; 
alioquin inutiliter iure ciuili 
testabitur. 

119. Praetor tamen si se- 
ptem signis testium signatum 
sit testamentum, scriptis here- 
dibus secunduin tabulas testa- 
menti loonorum (possmsionem) 
pollicetur: (ei) si nemo sit ad 
quern ab intestate iure legitimo 
pertineat hereditas, uelut frater 
eodem patre natus aut patruus 
aut fratris filius, ita poterunt 
scripti heredes retinere heredi- 
tatem. nam io^em iuris est et 
si alia ex causa testamentum 
non ualeat, uelut quod familia 
non uenierit aut nuncupationis 
uerba testator locutus non sit. 

120. Sed uideamus an 
etiamsi frater aut patruus ex- 
tent, potiores scriptis heredibus 
habeantur. rescripto enim im- 
peratoris Antonini significatitr, 
eos qui secundum tabulas testa- 
menti non iure factas bonorum 
possessionem petierint, posse ad- 
uersus eos qui ab intestate uindi- 
cant hereditatem defendere se 
per exceptionem doli niali. 

121. Quod sane quidem ad 
masculorum testamenta perti- 
nere certum est ; item ad femi- 
narum quae ideo non utiliter 
testatae sunt, quia uerbi gratia 
familiam non ue-ndiderint aut 
nuncupationis uerbalocutae non 
sint ; an autem et ad ea testa- 
menta feminarum quae sine tu- 
toris auctoritate fecerint haec 
constitutiopertineat,uidebimus. 

122. Loquimur autem de 
his scilicet feminis quae non in 
legitima paren^um aut patro- 
norum tutela sunt, sed [de his] 



1 1 8. It is also to be remem- 
bered that a woman who has a 
guardian must have her guardian's 
sanction to make a will, otherwise 
her will is invalid at civil law. 

119. The praetor, however, 
if the will is attested by the seals 
of seven witnesses, promises to 
put the persons named in the will 
in juxta-tabular possession, and if 
there 1$ no one to take the in- 
heritance by statutory right under 
the rules, of intestacy, a brother 
by the same father, for instance, a 
father's brother, or a brother's son, 
the persons named in the will are 
able to retain the inheritance ; for 
the rule is the same as if the will 
is invalid from any other cause, as 
because the familia has not been 
sold or because the words of nun- 
cupation have not been spoken. 

120. But are not the heirs 
named in the will preferred even 
to a brother and paternal uncle? 
since the rescript of the emperor 
Antoninus permits the person 
named in the will who has ob- 
tained juxta - tabular possession 
under an informal will to repel 
the claimants in intestacy by the 
plea of fraud. 

121. This certainly applies 
both to the wills of males and also 
to the wills of females which are in- 
formal for such faults as omission 
to sell the familia or to say the 
words of nuncupation: whether 
the constitution applies also to 
wills of females executed without 
their guardian's sanction, is a 
question. 



122. We are not speaking of 
females who are the statutory 
wards of their parent or patron, 
but of those who are wards of the 



ii. 115-122.] BONORVM POSSESSIO TESTATI 187 

quae alterius generis tutores other sort of guardian, who are 

habent, qui etiam inuiti co- compellable to give their sanction; 

guntur auctores fieri ; alioquin for a parent or patron can cer- 

parentem et patromon sine au- tainl Y not be displaced by a will 

ctoritate eius facto testamento he has not chosen to sanctlon - 
non summoueri palam est. 

1 1 7. The necessity of using formal \vords in the institution of 
an heir was abolished by a, constitution of Constantius and Constans, 
A. D. 339, od. 6, 23, 15. 

As to the nomenclature employed in the following exposition of 
Eoman testamentary law, it must be observed that as the Koman 
conception of Heres is not found in English law, so we have no legal 
term corresponding to it. In the language of English jurisprudence 
Heir denotes a successor to real estate, while Executor, the notion of 
which is derived to some exterxt from Roman law, denotes a successor 
appointed to succeed to personal property. Again Heir denotes a suc- 
cessor to real estate in case of intestacy. Devisee denotes a successor 
to real estate under a will. 

The word Executor is not available as a translation of heres. The 
Executor of English law, unless also a legatee, holds a merely onerous 
office ; whereas the heres of Roman law was always, if there was any 
residue, a beneficiary. The Roman heres, ip fact, united the characters 
of the English Executor and residuary legatee : and the lex Falcidia 
provided that the residue should as against the claims of legatus always 
amount to a fourth of the testator's property. Nor is the executor, like 
the heres, personally liable for the debts of the deceased beyond assets. 

In translating the word Heres heir, which is conyenient from its 
relation to the indispensable terms disi nherit and disinheritance, an 
English reader must not be misled by false associations with Real 
Property law, but must understand that it is used to signify the 
Universal successor of Roman law, whether designated by will or by 
the rules of intestacy. 

Bequest (which in English law is, related to personalty as devise 
to realty) has been used in connexion with legacies, i. e. with dis- 
positions in favour of legatarius as opposed to heres ; in favour, 
that is, of a person who takes a single thing or things belonging to 
the testator, not his familia, that is, the Universitas of his rights and 
obligations, or a fraction of this Universitas. 

119, 120. The praetor only sustained a testament in spite of its 
civil invalidity when the grounds of civil invalidity were want of 
mere external formalities (mancipation, nuncupation), not against 
more serious defects, such as preterition of self-successor. He 
sustained it, however, against the preterition of suus postumus, if 
suuspostumus died before the testator, Dig. 28, 3, 12. 



188 SVCCESSIO PER VNIVEKSITATEM [n. 115-122. 

The praetorian succession, or right of succession introduced by the 
praetor under the name of Bonorum possessio, sometimes as supple- 
mentary to, and sometimes in the place of, civilis hereditas, may be 
divided into testate succession and intestate succession. The latter 
branch (bonorum possessio intestati) was firmly established at an 
earlier period than the former (bonorum possessio secundum tabulas). 
The rescript mentioned by Gaius, 120, which is attributed by some 
writers to Antoninus Pius and by others to Marcus Aurelius, as is the 
more probable view, may be regarded as having definitively estab- 
lished the validity of the praetorian testament, not simply when 
supplementary to, but also when in opposition to, jus civile ; in other 
words, a praetorian will might make a person bonorum possessor 
cum re, although the inheritance was claimed by some one with a 
valid civil title. 

In its origin Bonorum possessio was probably only the provisional or 
interimistic possession granted to one of the parties in a suit of Heredi- 
tatis petitio, cf. Sohm, 1 10. This suit was a species of Keal action 
(actio in rem), and in all Real actions it is necessary to determine which 
of the litigants shall have possession during the pendency of the litiga- 
tion. In the earliest period, that of statute-process (legis actio), the 
interim possession was called vindiciae, and the praetor who assigned 
it to one of the parties was said vindicias dicere, 4 1 6. In making the 
grant of vindiciae he was probably governed by the same rule which 
afterwards prevailed when the question of interim possession was 
determined by application of the Interdicts Utrubi and Uti possidetis : 
that is to say he probably allowed the party in actual possession to 
continue in possession. But this rule was inapplicable to the case 
of Hereditatis petitio, for at the decease of the proprietor who leaves 
an inheritance not one of the claimants to succeed may be in actual 
possession. Here accordingly the grant was governed by different 
principles : if a will, prima facie valid, was propounded, possession 
was granted to the claimant under the will (bonorum possessio 
secundum tabulas) : if no such will was propounded, possession was 
granted to the civil heirs, the self-successor (suus heres) being eventu- 
ally allowed to claim bonorum possessio unde liberi, coming before the 
nearest agnates (legitimi). Then as supplementary to the civil law, 
persons who were not recognized as heredes, namely persons claiming 
under a praetorian will, till they were preferred by statute to agnates, 
.120, and next cognates (bonorum possessio unde cognati), and the 
wife or husband, as such (bonorum possessio unde vir et uxor), were 
put in possession in default of other heirs : children (liberi), who by 
emancipation had lost the character of self-successors, were never- 
theless admitted to possession in the first order in preference to agnates 
of the second order, just as if they had continued unemancipated 



ii. 123-137.] DE EXHEREDATIONE LIBERORVM 189 



(bonorum possessio unde liberi). The right of provisional possession 
of course corresponded to a presumptive right of definitive ownership. 

Although a will was propounded, yet if a descendant of the 
testator, who would have been self-successor if he had not been 
emancipated, was therein pretermitted (praeteritus), i.e. not either 
instituted heir or disinherited, possession was granted to such preter- 
mitted descendant (bonorum possessio contra tabulas). Contra-tabular 
possession did not make a will absolutely void as the passing over 
of suus heres might do : if the praeteritus was an emancipated son, 
although he obtained contra-tabular possession, he was bound, as we 
shall see, by some of the dispositions of the will ; so that his suc- 
cession was partly intestate, partly testate. 

122. In ancient Kome, females, even after attaining their 
majority, were subject to perpetual guardianship. In the time of 
Gaius, the only survival of such guardianship to which they con- 
tinued really subject appears to have been that of ascendants and 
patrons, cf. 1 189-193; 2 85, 112. But before the time of 
Justinian even this had ceased. 

DE EXHEKEDATIONE LIBEEOEVM. 



123. Item qui filium in 
potestate habet curare clebe, 
ut eum uel heredem instituat 
uel nominatim exheredet ; alio- 
quin si eum silentio praeterie- 
rit, inutiliter testabitur, adeo 
quidem, ut nostri praeceptores 
existiment, etiamsi uiuo patre 
filius defunctus sit, neminem 
heredem ex eo testamento exi- 
stere posse, qu/a scilicet statim 
ab initio non constiterit insti- 
tutio. sed diuersae scholae 
auctores, siquidem films mortis 
patris tempore uiuat, sane in- 
pedimento eum esse scriptis 
heredibus et ilium ab intestato 
heredem fieri confitentur ; si 
uero ante mortem patris inter- 
ceptus sit, posse ex testamento 
hered^afem adiri putant, nullo 
iam filio inpedimento ; quia 
scilicet existimant (mm) sta- 
tim ab initio inutiliter fieri 
testamentum filio praeterito. 

Inst. 2, 13 pr. 



123. Moreover, a testator who 
has a son in his power must take 
care either to institute him heir or 
to disinherit him individually, for 
passing him over in silence invali- 
dates the will. So much so, that 
according to the Sabinians, even 
if the son die in the lifetime of 
the father, no one can take as 
heir under the will on account of 
the original nullity of the insti- 
tution. But the followers of the 
other school hold that although 
the son, if alive at the time of 
his father's death, bars the heirs 
mentioned in the will and takes 
as self-successor by intestacy, yet, 
if the son die before the father, 
the heirs under the will may 
succeed, the son being no longer 
in their way, because according to 
this view the will was not void 
ab initio by his silent preter- 
mission. 



190 SVCCESSIO PER VNIVERSITATEM [n. 123-137. 



124. Ceteras uero liberorum 
personas si praeterierit testator, 
ualet testamentum (sed} prae- 
teritae istae personae scriptis 
heredibus in partem adcrescunt, 
si sui heredes sint. in uirilem, 
si extranei, in dimidiam. id est 
si quis tres uerbi gratia filios 
heredes instituerit et filiam 
praeterierit, filia adcrescendo 
pro quarta parte fit heres, et ea 
ratione idem c'onsequitur, quod 
ab intestato patre mortuo habi- 
tura esset ; at si extraneos ille 
beredes instituerit et filiam 
praeterierit, filia adcrescendo 
ex dimidia parte fit heres. 
quae de filia diximus, eadem 
et de nepote deque omnibus 
liberorum personis seu inascu- 
lini seu /eminini sexus dicta 
intellegemus. Inst. 1. c. 

125. Quid ergo est? licet 
eae secundum ea quae diximus 
scriptis heredibus dimidiam 
partem detrahan-t, tamen prae- 
tor eis contra tabulas bonorum 
possessionem promittii, qua ra- 
tione extranei heredes a tota 
hereditate repelluntur et effi- 
ciuntur sine re heredes. 
sf* 1^6. Et hoc iure utebamur, 
quasi nihil inter Feminas et 
masculos interesset ; sed nuper 
imperator Antoninus signifi- 
cauit rescripto suas non plus 
nancisci feminas per bonorum 
possessionem, quam quod iure 
adcrescendi consequerentur. 
quod in emancipatarum quoque 
persona obseruandum eat, ut 
hae quoque, quod adcrescendi 
iure habiturae essent, si in po- 
testate fuissent, id ipsum etiam 
per bonorum possessionem ha- 
beant. 

127. Sed siquidem filius a 



124. By the pretermission of 
other self-successors a will is not 
avoided, but the omitted persons 
come in to share with the heirs 
named in the will, taking an 
aliquot part if the latter are self- 
successors, a moiety if they are 
strangers. Thus if a man has 
three sons and institutes them 
heirs, saying nothing of his 
daughter, the daughter comes in 
as co-heir and takes a fourth of 
the estate, being entitled to the 
portion which would have de- 
volved on her by intestacy : but 
when the instituted heirs are 
strangers, the daughter, if passed 
over, comes in and takes a moiety. 
What has been said of the 
daughter applies to the son's 
children, male and female. 



125. But though a female 
according to this statement of 
the law only deprives the heirs 
under the will of a moiety, the 
praetor promises to give her 
contra-tabular possession, so that, 
if strangers, they lose the whole, 
and become heirs without taking 
anything. 

126. And this was once the 
law, and there was no distinction 
between males and females ; but 
the Emperor Antoninus has re- 
cently decided by rescript that 
female self-successors shall not 
take more by contra-tabular pos- 
session than they would by 
coming in as co-heirs at civil law, 
by right of accrual. And the 
same rule applies to emancipated 
daughters, that is, they obtain by 
contra-tabular possession the same 
shares as they would have ob- 
tained as co-heirs by right of 
accrual if they had not been 
emancipated. 

127. A son must be disin- 



IT. 123-137.] DE EXHEREDATIONE LIBERORVM 191 



patre exheredetur, nominatim 
exhered&ri debet, ; alioquin non 
uidetur exheredari. nomina- 
tim autem e^heredari uidetur, 
siue ita exheredetur TinVs FI- 

LIVS MEVS EXHEE.ES ESTO, 



ita FILTVS MEVS EXHEKES ESTO, 

non adieCto proprio nomine. 

Inst. 2, 13,1. 

128. Ceterae uero liberomm 
personae uel femini sexus uel 
masculini sajtis inter ceteros 
exheredantur, id est his uer- 

})is GETEBI OMNES EXHEREDES 

SVNTO, quae uerba - .post 
injstitutionem heredum adici 
solent. sed hoc ita |. 

Inst. 1. c. 

129. Nam praetor omnes 
uirilis sexus liberorum perso- 
nas, | id est nepotes quoque et 
pronepotes - j - 1 - 1. 



130. Postumi quoque liberi 
uel heredes institui debent uel 
exheredari. 

131. Et in eo par omnium 
condic^o est, quod (ety in filio 
postumo et in quolibet 'ex ceteris 
liberis siue feminini seafus 
siue -masculini praeterito ualet 
quidem testamentum, sed po- 
stea agnatione postumi siue 
postumae rumpitur, et ea ra- 
tione totum infirm&iur. ideo- 
^ue si mulier ex qua postumus 
aut postuma, speraba^r abor- 
tum fecerit, nihil inpedimento 
est scriptis heredibus ad here- 
ditatem adeundam. Inst. 1. c. 

132. Sed feminini quidem 
sexus personae uel nominatim 
uel inter ceteros exheredari 
solent, dum tamen si inter 




herited individually ; otherwise 
the disherison is invalid. In- 
dividual disherison may be ex- 
pressed in these terms : Be Titius 
my son disinherited : or in these : 
Be my son disinherited, without 
inserting his name. 



and all 
may be 



128. Other male 
female self-successors 
sufficiently disinherited inter 
ceteros thus : Be the remainder 
disinherited, which words usually 
follow the institution of "the heir : 
this, however, is only the rule of 
the civil law. 

129. For the Praetor requires 
all male self-successors, sons, 
grandsons, greatgrandsons, to 
be disinherited individually, al- 
though he permits females to 
be disinherited in an aggregate 
(inter ceteros), and, failing such 
disherison, promises them the 
contra-tabular succession. 

130. Children born after the 
making of the will must either be 
instituted heirs or disinherited. 

131. And in this respect all 
stand in the same position, that 
if a son or any other child, male 
or female, born after the making 
of the will, be passed over in 
silence, the will is originally valid, 
but subsequently rescinded and 
totally avoided by the birth of the 
child ; so that if the woman from 
whom a child was expected have 
an abortive delivery, there is 
nothing to prevent the heirs 
named in the will from taking 
the succession. 

132. Female self-successors 
born after the making of the will 
may be disinherited either indi- 
vidually or inter ceteros, with 



192 SVCCESSIO PER VNIVERSITATEM [n. 123-137. 



ceteros exheredentur, aliquid 
eis legetur, ne uideantur per 
obliuioneia. praeteritae esse. 
masculini uero sexus person&s 
placuit non aliter recte exAere- 
dari, quam si nominatim ex- 
heredentur, hoc scilicet modo 
QVICVMQVE MIHI FILIVS GENI- 
TVS FVEBIT _EX|HEBES ESTO. 

Inst. 1. c. 

132 a. 1 potest u 1 

(4 uersus in C legi nequeunt) 
-agat- 



133. Postumorum autem 
loco sunt et hi qui in sui here- 
dis | locum succedendo quasi 
agnascendo fiunt parentilous 
sui heredes. ut ecce si filium 
et ex eo nepotem ne\piemue in 
potestate habeam, quia filius 
gradu praecedit, \ is solus iura 
sui heredis habet, quamuis ne- 
pos quo\que et neptis ex eo in 
eadem potestate sint ; sed si 
filius meus me uiuo moriatur, 
aut qualibet ratione exeat de 
potestate mea, incipit nepos 
neptisue in eius locum succe - 
dere, et eo modo iura suorum 
heredum quasi agnatio\ne nan- 
ciscuntur. Inst. 2, 13, 2. 



134. Ne ergo eo modo 
rumpatur mihi t,e\sifimentum, 
sicut ipsumjilium uel heredem 
mstituere uel | exheredare de- 
beo, ne non iure faciam testa- 
mentum, ita et we|potem ne- 
ptemue ex eo necesse est mihi 
uel heredem instituere uel ex- 
heredare, ne forte, me uiuo filio 
mortuo, succedendo in locum 
eius nepos neptisue quasi agna- 
tione rumpat testamentum ; id- 



this proviso, that if they are 
disinherited inter ceteros, some 
legacy must be left them in order 
that they may not seem to have 
been pretermitted through forget- 
fulness. Male self -successors, sons 
and further lineal descendants, 
are held not to be duly disin- 
herited unless they are disin- 
herited individually, thus: Beany 
son that shall be born to me dis- 
inherited. 



133. With children born after 
the making of the will are classed 
children who by succeeding to 
the place of self-successors become 
subsequent self-successors like the 
afterborn. For instance, if a tes- 
tator have a son, and by him a 
grandson or granddaughter under 
his power, the son being nearer 
in degree alone has the rights of 
self-successor, although the grand- 
son and granddaughter are 
equally in the ancestor's power. 
But if the son die in the lifetime 
of the testator, or by any other 
means pass out of the testator's 
power, the grandson and grand- 
daughter succeed to his place, 
and thus acquire the rights of 
self-successors to the testator just 
as if they were children born 
after the making of the will. 

134. To prevent this subse- 
quent rupture of my will, just 
as a son must be either instituted 
heir or disinherited individually 
to make a will originally valid, 
so a grandson or granddaughter 
by a son must be either insti- 
tuted heir or disinherited, lest 
if the son die in the testator's 
lifetime the grandson and grand- 
daughter should take his place and 
rupture the will in the same way 
as if they had been children born 



ii. 123-137.] DE EXHEREDATIONE LIBERORVM 193 



que lege lunia Vellaea prouisum 
est, in qua simul exheredationis 
modus notatur, ut uirilis sexus 
(postumiy nominatim, femi- 
nini uel nominatim uel inter 
ceteros exheredentur, dum ta- 
men iis qui inter ceteros exhe- 
redantur aliquid legetur. 
I Inst. 1. c. 

135. jE'mancipatos liberos 
iure ciuili neque heredes insti- 
tuere neque exheredare necesse 
est, quia non sunt sui heredes ; 
sed praetor omnes tain feminini 
quam masculini sexus, si here- 
des non instituantur, exhere- 
dari iubet, uirilis sexus womi- 
natim, feminini uel nominatim 
uel inter ceteros ; quodsi neque 
heredes instituti fuerint neque 
ita ut supra diximus exhere- 
dati, praetor promittit eis con- 
tra tabulas bonorum posses- 
sionem. Inst. 2, 13, 3. 

135 a. In potestate patm 
non sunt qui cum eo ciuitate 
Romana donati sunt nee in ac- 
cipienda ciuitate Romana pater 
petiit, ut eos in potestate habe- 
re, aut, si petiit, nou inpetrauit, 
nam qui (m) potestatem patris 
ab imperatore rediguntur nihil 
diffe|runt a . 

136. Adoptiui filii quamdiu 
manent in adojptione natura- 
lium loco sunt ; emancipati 
uero (a) patre adoptiuo neque 
iure ciuili neque quod ad edi- 
ctum praetoris pertinet, inter 
liberos numerantur. 

Inst. 2, 13,4. 

1 37. Qua ratione accidit ut 
ex diuerso quod ad naturalem 
parentem pertinet, quamdiu 
quidem sint in adoptiua familia, 
extraneorum numero habean- 
tur ; si uero emancipati fuerint 



after the execution of the will. 
The lex Junia Vellaea allows this 
and directs them to be disin- 
herited like children born after 
a will is executed, that is to say, 
males individually, females either 
individually or inter ceteros, pro- 
vided that those who are disin- 
herited inter ceteros receive some 
legacy. 

135. Emancipated children 
by civil law need neither be 
appointed heirs nor disinherited 
because they are not self-suc- 
cessors. But the Praetor requires 
all, females as well as males, 
unless appointed heirs, to be 
disinherited, males individually, 
females either individually or 
inter ceteros, and if they are 
neither appointed heirs nor dis- 
inherited as described, the Praetor 
promises to give them the contra- 
tabular possession. 



1 35 a. Children who are made 
Roman citizens along with their 
father are not subject to his 
power, if at the time he either 
omitted to petition for, or failed 
to obtain, a grant of patria potes- 
tas : for those who are subjected to 
the father's power by the emperor 
differ in no respect from those 
under power from time of birth. 

136. Adoptive children, so 
long as they continue in the 
power of the adoptive father, 
have the rights of his natural 
children: but when emancipated 
by the adoptive father they 
neither at civil law nor in the 
Praetor's edict are regarded as 
his children. 

137. And conversely in 
respect of their natural father as 
long as they continue in the adop- 
tive family they are reckoned as 
strangers : but when emancipated 
by the adoptive father they have 



194 SVCCESSIO PER VNIVERSITATEM [n. 123-137. 

|_ d 

ab adoptiuo patre, time inci- the same rights in their natural 
plant in ea causa esse qua futuri family as they would have had 
essent, si ab ipso natural! patre if emancipated by their natural 
{emancipati} fuissent. father (that is, unless either in- 

Inst. 1. c. stituted heirs or disinherited by 
him, they may claim the contra- 
tabular succession). 

123. The praeterition of suus heres, another circumstance which 
as well as testamenti factio affected the validity of a will, was at civil 
law critical both at the time of making the will and at the time of 
the testator's death and in the interval : but in later times this 
defect of a will was healed by the praetor, who granted juxta-tabular 
possession if the defect only existed at the first and third period, 
Dig. 28, 3, 12 pr., so that practically the existence of a pretermitted 
suus heres at the time of the testator's death was alone important. 

The necessity of disinheriting a suus heres is grounded on the 
principle of primitive law, that the child is co-proprietor with the 
parent: hence, unless something occurs to divest the child of his 
property, he will simply become sole proprietor by survivorship on 
the death of his father. Dig. 28, 2, 11, ''In self-succession we have 
a still more striking instance of an unbroken continuity of dominion, 
for there appears to be no vesting by it of new property by inheritance, 
but the heir is deemed to have been previously proprietor even during 
the lifetime of the father. Hence the names filiusfamilias and pater- 
familias imply a similar kind of legal relation to the patrimony, though 
one is parent and the other child. Therefore the death of the parent 
occasions no acquisition of new property by inheritance, but only an 
increased freedom in the administration of already existing property. 
Hence, even in the absence of testamentary institution, a self-suc- 
cessor is proprietor : and it is no objection to this, that a parent has 
the power of disinheriting a self-successor, for he also had the power 
of putting him to death.' 

The characteristic of the Roman will that it grounded a Universal 
succession (unlike the English will which may be a merely Partial 
definition of the succession), which is expressed in the maxim, 
Nemo pro parte testatus, pro parte intestatus decedere potest, had 
its historic origin, not probably in a perception of its manifold 
utility, but in the primitive form of the will a proposal, perhaps in 
the form of an adoption, laid before the legislative assembly for its 
sanction, 101. The assembly could no more judge of the justice 
of a proposed arrangement without having laid before it the whole 
plan of succession than it could judge of the fairness of a contract by 
inspection of a single paragraph. It could not therefore allow the 
testator merely to lay before it certain partial modifications of the 



ii. 123-137.] POSTVMI SVI 195 

intestate succession and leave the rest of his inheritance to follow the 
general rules of intestacy, without further informing the assembly 
of their operation. Nor were the testamentary powers, conferred by 
the Twelve Tables, on which the mancipatory will was founded, in- 
tended to be used so as to defeat the claims of sui heredes (Muirhead, 
Koman Law, 32). These considerations involve the rules respecting 
the effect of Praeteritio. If the testator's dispositions were valid 
in spite of Praeteritio, he would have it in his power to commit 
a fraud upon the assembly by suppressing some element that was 
material to enable them to form a judgement. Accordingly Prae- 
teritio was made to defeat itself, in the case of the son by nullification 
(inutilitas), in the case of other issue by Accretio, 124. However, 
although by the Civil law Praeterition avoided a will and was not cured 
by the death of Praeteritus before Testator, yet Praetorian law only 
regarded the date of Testator's death, and, if no Praeteritus was then 
existent, counteracted the nullity of the will by Juxta-tabulation. 

After the introduction of the mancipatory will the fraud against 
the legislature would cease to be a motive for the rule requiring the 
testator to define a Universal succession ; but the rule was retained for 
the sake of continuity and in order to force the testator to have before 
his mind a clear and systematic view of his intentions by requiring 
their simultaneous expression in a single act. It secured the after- 
born from oblivion and protected the son who was falsely supposed 
to be dead from the consequences of the testator's error. At the 
latest period the use of Codicils permitted to a certain extent the 
partial and fragmentary disposition of a patrimony, but this was not 
extended to the principal point, the heredis institutio. Ihering, 53. 

124. Justinian abolished this accretion and equalized the sexes, 
enacting that the pretermission of any suus heres or sua heres should 
absolutely vacate a will, and entitle to bonorum possessio contra 
tabulas, like the pretermission of the son, Cod. 6, 28, 4 ; Inst. 2, 13, 5. 

127. Justinian abolished this distinction and required that all 
sui heredes should be disinherited individually like the son, ibid. 

130. Afterborn children (postumi), that is, children born after 
the making of a will, are uncertain persons, and, by the general rule 
that uncertain persons cannot be instituted or disinherited (incerta 
persona heres institui non potest, Ulpian 22, 4), ought to be incapable 
of institution or disinheritance, and, therefore, if they are sui heredes, 
would necessarily invalidate a will, because every will is informal 
when there exists a suus heres who is neither instituted nor dis- 
inherited. If the suus heres was born in the lifetime of the testator, 
the revocation of the will would not be an irremediable evil, because 
the testator would still have it in his power to make another will, 
and accordingly in this case the civil law left the general rule to 

O 2, 



196 SVCCESSIO PER VNIVERSITATEM [n. 123-137. 

operate. But if the suus heres were born after the death of the 
testator, the evil would be irreparable, and the testator would die 
intestate. To prevent this, the civil law made an exception to the 
rule that an uncertain person cannot be instituted or disinherited, 
and permitted the institution or disinheritance of any suus heres who 
should be born after the death of the testator : and on the authority 
of the celebrated jurist Aquilius Gallus, the inventor of a form of 
acceptilation (3 170), this power was extended to the institution or 
disinheritance of any afterborn grandchild of the testator whose 
father should die in the interval between the making of the will and 
the death of the testator. Dig. 28, 2, 29 pr. Gallus sic posse 
institui postumos nepotes induxit : Si films meus vivo me morietur, 
tune si quis mihi ex eo nepos sive quae neptis post mortem meam in 
decem mensibus proximis, quibus filius meus moreretur, natus nata erit, 
heredes sunto. ' Gallus Aquilius introduced the institution of after- 
born grandchildren in the following manner : If my son die in my 
lifetime, then let any grandson or granddaughter by him who may be 
born after my death within ten months after the death of my son, be 
my successor.' Such grandchildren are called Postumi Aquiliani. 

In respect of the suus heres born after the making of the will but 
in the lifetime of the testator, the case which the civil law left to the 
operation of the general rule, it might certainly be sometimes possible 
to make a new will after his birth, but it might sometimes be impossible 
or highly inconvenient; and accordingly the lex Junia Vellaea, which 
was probably passed at the close of the reign of Augustus, in its first 
chapter permitted such sui heredes, being children of the testator, and 
also grandchildren of the testator born after their father's death in the 
lifetime of their grandfather, to be instituted or disinherited. Such 
children and grandchildren were called Postumi Vellaeani primi 
capitis. In its second chapter it permitted the institution or dis- 
inheritance of another class of uncertain persons, viz. quasi-afterborn 
children (postumorum loco) ; grandchildren, for instance, who were 
born before the making of the will, but whose acquisition of the 
character of sui heredes by the decease of their father is subsequent 
to the making of the will. 

Such grandchildren are called Postumi Vellaeani secundi capitis. 

Besides the Postumi Aquiliani, the Postumi Vellaeani primi 
capitis and the Postumi Vellaeani secundi capitis, the jurist Salvius 
Julianus, who systematized the Edict, established the validity of the 
institution or disinheritance of a fourth class, intermediate between 
the Postumi Vellaeani of the first and second chapter: grandchildren, 
namely, who, like the Vellaeani of the first chapter, were born after 
the making of the grandfather's will, but who, like those of the 
second chapter, were born before the death of their father. Such 



ii. 123-137.] POSTVMI SVI 197 

grandchildren are not sui heredes to their grandfather at their birth, 
but only by succession, that is by the subsequent death of their 
father, like those of the second chapter, Dig. 28, 2, 29, 15. 

The following is a conspectus of the different kinds of Postumi 
sui, i. e. descendants who after the making of a will come into the 
immediate power of a testator, whether (A) children or (B) grand- 
children : to remoter descendants analogous principles will apply. 

(A) Children are either 

(a) Veritably afterborn, that is to say born after their father has 
made his will, whether after their father's decease, in which case 
the civil law treated them as certae personae, or in their father's 
lifetime, in which case they form a subdivision of Velleiani primi 
capitis : 

(6) Or quasi-afterborn (loco postumorum), i. e. quasi-sons or quasi- 
daughters by adrogatio, adoptio, legitimatio, in manum conventio. 

(e) Another quasi-afterborn is the child who falls under the 
immediate power of his soldier father, that is, becomes his suus 
heres, in consequence of the death of his grandfather, in whose 
power he previously was, after his father had made a will of castrense 
peculium. Dig. 28, 2, 28, 1. 

(B) Afterborn grandchildren who, as self-successors to their grand^ 
father, require institution or disinheritance in his will fall into four 
classes, differentiated by the order of priority in which certain events 
occur, as hereunder indicated : 

POSTUMI AQUILIANI, 

Will of grandfather : Death of father : Death of grandfather : 
Birth of grandchild. 

POSTUMI VELLAEANI PRIMI CAPITIS, 

Will of grandfather : Death of father : Birth of grandchild : Death 
of grandfather. 

POSTUMI SALVIANI, 

Will of grandfather : Birth of grandchild : Death of father : Death 
of grandfather. 

POSTUMI VELLAEANI SECUNDI CAPITIS, 

Birth of grandchild : Will of grandfather : Death of father : Death 
of grandfather. 

The last two cases depend on the principle of successio. The 
grandchild is at birth in the power of his grandfather, but is not his 
suus heres, so long as there is an intervening ascendant the father 
in the same power. On the death of the intervening ascendant the 
grandchild is said to succeed to his place, and becomes by such 
succession suus heres to his grandfather. 



198 SVCCESSIO PER VNIVERSITATEM [IT. 123-137. 

The afterborn stranger, though incapable at civil law of being 
appointed heir ( 242), was relieved by the praetor who gave him 
the juxta-tabular possession. Justinian gave him a civil title, Inst. 
3, 9 pr. 

132. To the necessity of leaving some legacy to the disinherited 
afterborn sua heres (and not, as Blackstone suggests, to the querela 
inofficiosi) we may perhaps attribute the vulgar error in England 
of the necessity of leaving the heir one shilling in order to cut him 
off effectually. The querela inofficiosi testamenti was a process by 
which a will formally valid could be either totally or partly upset 
at the instance of certain near relations on the ground that the 
claims of natural affection had been disregarded by the testator. 
The querela inofficiosi was not barred by any legacy, however slight, 
being left to such relation, but only by giving him one fourth of his 
intestate portion ( 152, comm. ; Sohm, 113. For the changes 
which Justinian made in the law on this subject see Inst. 2, 1 8, 1 , 2 ; 
Novella, 18, 1, and 115). Thus even a legacy left to an afterborn 
sua heres would be unavailing 1 to save the will from being inoffi- 
ciosum, unless it amounted to one fourth of her share by descent. 
If no legacy at all were left her, the will would be informal and 
absolutely void as against her, unless she was disinherited ; if less 
than a fourth of her share were left, the will would not be abso- 
lutely void but voidable, i e. liable to be altogether or in part over- 
thrown if she chose to impeach it as inofficiosum. 

135. The Praeteritio of a descendant who is suus heres to 
the testator or, but for emancipation, would be suus heres, entitles 
the descendant to bonorum possessio. If the praeteritus is films 
suus heres, the will is absolutely void and contra-tabular posses- 
sion is an intestate succession : but if the praeteritus is emanci- 
patus, the effect of contra-tabular possession is to divide the 
inheritance between the praeteritus and other descendants who were 
instituted heirs, excluding both instituted strangers and disinherited 
sui heredes. 

Contra-tabular possession might be claimed either by the prae- 
teritus himself, or by any of the instituted sui heredes. For if an 
instituted heir took less by his institution than he would by this 
partial intestacy, it would be his interest to claim contra-tabular 
possession, commisso per alium edicto, 'the edict having been 
brought into operation by another,' viz. by another descendant, who 
had been pretermitted. 

The portions of the will that remained in force were : 

(i) The exheredations : for such of the liberi as were duly dis- 
inherited continued, as was mentioned, excluded from the inheri- 
tance : 



ii. 138-146.] Q. M. TESTAMENTA INFIRMENTVR 199 

(2) The pupillary substitutions, the nature of which will hereafter 
( 179) be explained : 

(3) Legacies given to certain conjunctae personae, e. g. legacies 
to ascendants or descendants of the testator, or a bequest to the 
wife of the dower which she had brought to her husband. If, in- 
stead of making the conjuncta persona a legatee, the testator had 
given his bounty in the form of a portion of the inheritance in which 
the conjuncta persona was instituted heir, such institution continued 
valid. The validity, however, of such legacies and institutions was 
by a constitution of Antoninus Pius, Dig. 37, 5, 7, and 8 pr. sub- 
jected to this limitation, that all the conjunctae personae together 
could not take more than a virilis portio, i. e. they were not entitled 
to more than fell to the lot of each contra-tabulant or claimant of 
contra-tabular possession; with this further proviso, that any con- 
juncta persona who is instituted heir of the inheritance in a portion 
of the heritage may retain as much thereof as he would have obtained 
by claiming contra-tabular possession, cf. Koby, vol. i, p. 250. 

The partial intestacy produced by contra-tabular possession shows 
that the rule which we have already quoted, nemo pro parte testa- 
tus pro parte intestatus decedere potest, must be taken with some 
reservation. Although a testator cannot voluntarily dispose of only 
part of his heritage, such partial disposition may be introduced 
against the testator's intention by the operation of law. The signi- 
ficance of the rule is principally this : that if a testator only 
names for a certain fraction of the inheritance, or if the fraction in 
which one of several heirs is instituted lapses by his decease before 
the testator's death, the portion which was undisposed of or lapsed 
does not devolve, as it would in English law, to the heirs-at-law or 
persons entitled by intestacy, but goes by accrual (accretio) to those 
to whom the remainder of the inheritance is left. 

QVIBVS MODIS TESTAMENTA INFIRMENTVR. 

138. Si quis post factum 138. If after making his will 

testamentum adoptauerit sibi a man adopts as son either a 

filium aut per populum eum person sui juris by means of the 

qui sui iuris est, aut per prae- people (in comitia) or one sub- 

torem eum qui in potestate J ecfc to the P ower of an ascendant 

parentis fuerit, omni modo by means of the Praetor, his will 

testamentum eius rumpitur js mevitably revoked as it would 

quasi agnations sui heredis. be 1f by the subse <iuent birth of a 

List 2, 17,1. self - successor ' 

139. Idem iuris est si cui 139. The same happens if 

post factum testamentum uxor after making his will the testator 

in manum conueniat, uel quae receives a wife into his hand, or 

in manu fuit nubat ; nam eo marries a person who is in his 



200 SVCCESSIO PER VNIVERSITATEM [n. 138-146. 



modo filiae loco ease incipit et 
quasi sua. 

140. Nee prodest siue haec 
siue ille qui adoptatus est 
in eo testamento sit institu- 
tus institutaue ; nam de ex- 
heredatione eius superuacuum 
uidetur quaerere, cum testa- 
menti faciendi tempore suorum 
heredum numero non fuerit. 

141. Filius quoque qui ex 
priina secundaue mancipatione 
manumittitur, quia reuertitur 
in potestatem patriam, rumpitf 
ante factum testamentum ; nee 
prodest, (si) in eo testamento 
heres institutus uel exheredatus 
fuerit. 

142. Simile ius olim fuit 
in eius persona cuius nomine 
ex senatusconsulto erroris 
causa probatur, quia forte ex 
peregrina uel Latina quae per 
errorem quasi ciuis Romana 
uxor ducta esset natus esset ; 
nam siue heres institutus esset 
a parewte siue exheredatus, 
siue uiuo patre causa probatct 
siue post mortem eius, omni 
modo quasi agnatione rumpe- 
bat testamentum. 

143. Nunc uero ex nouo 
senatusconsulto quod auctore 
diuo Hadriano factum est, si- 
quidem uiuo patre causa pro- 
batur, aeque ut olim omni 
modo rumpit testamentum ; si 
uero post mortem patris, prae- 
teritus quidem rumpit testa- 
mentum, si uero heres in eo 
scriptus est uel exheredatus, 
non rumpit testamentum ; ne 
scilicet diligenter facta testa- 
menta rescinderentur eo tern- 
pore quo renouari non pos- 
sent. 

144. Posteriore quoque 



hand, as she thereby acquires the 
status of a daughter and becomes 
his self -successor. 

140. Nor does it avail to pre- 
vent the rupture that such a wife 
or adopted son was in that will 
instituted heir, for as to disin- 
heriting them, not having been 
self-successors when the will was 
made, the question could not then 
have been material. 

141. So a son manumitted 
after the first or second sale re- 
verts into the power of his father 
and revokes a previous will, nor 
does it avail that he is therein 
appointed heir or disinherited. 



142. The same rule formerly 
held of the son in whose behalf 
the decree of the senate allows 
proof of error, if he was born 
of an alien or Latin mother 
who was married in the mistaken 
belief that she was a Eoman: for 
whether he was appointed heir 
by his father or disinherited, and 
whether the error was proved in 
his father's life or after his death, 
in every case the will was revoked 
as by the subsequent birth of a 
self-successor. 

143. Now, however, by a 
recent decree of the senate, made 
on the proposition of the late 
emperor Hadrian, if the father is 
alive when the error is proved, 
the old rule obtains and the will 
is in every case avoided ; but 
when the error is proved after the 
father's death, if the son was 
passed over in silence, the will is 
revoked ; but if he was appointed 
heir or disinherited the will is 
not revoked ; in order that care- 
fully executed wills should not 
be rescinded at a period when re- 
execution is impossible. 

144. A subsequent will duly 



IT. 138-146.] Q. M. TESTAMENTA INFIRMENTVR 201 



testamento quod iure factum 
est superius rumpitur. nee in- 
terest an extiterit aliquis ex eo 
heres, an non extiterit ; hoc 
enim solum spectatur, an exi- 
stere potuerit. ideoque si quis 
ex posteriore testamento quod 
iure factum est aut noluerit 
heres esse, aut uiuo testatore 
aut post mortem eius antequam 
hereditatem adiret decesserit, 
aut per cretionem exclusus fue- 
rit, aut condicione sub qua 
heres mstitutus est defectus sit, 
aut propter caelibatum ex lege 
Julia summotus fuerit ab here- 
ditate : quibus casibus pater 
familias intestatus moritur, 
nam et prius testamentum non 
ualet ruptum a posteriore, et 
posterius aeque nullas uires 
habet, cum ex eo nemo heres 
_extiterit. Inst. 2, 17, 2. 

145. Alio quoque modo 
testamenta iure facta infirmaw- 
tur, ueluti (cum) is qui fecerit 
testamentum capite derninutus 
sit; quod quibus modis accidat, 
primo commentario relatum 
est. Inst. 2, 17, 4. 

146. Hoc autem casu inrita 
fieri testamenta dicemus, cum 
alioquin et quae rumpuntwr 
inrita fiant, (et quae statim ab 
initio non iure fi.unt inrita 
sint ; sed et ea quae iure facta 
suirt et postea propter capitis 
deminutionem inrita fiunt} 
possunt nihilo minus rupta 
dici. sed quia sane commodius 
erat singulas causas singulis 
appellationibus distingui, ideo 
quaedam non iure fieri dicuntur, 
quaedam iure facta rumpi uel 
inrita fieri. 

Inst. 2, 17, 5. 



executed is a revocation of a prior 
will, and it makes no difference 
whether an heir ever actually 
takes under it or no; the only 
question is, whether one might. 
Accordingly, whether the heir 
instituted in a subsequent will 
duly executed declines to be 
heir, or dies in the lifetime of 
the testator, or after his death 
before accepting the inheritance, 
or is excluded by expiration of 
the time allowed for deliberation, 
or by failure of the condition 
under which he was instituted, or 
by celibacy as the lex Julia pro- 
vides ; in all these cases the tes- 
tator dies intestate, for the earlier 
will is revoked by the later 
one, and the later one is inope- 
rative, since no one becomes heir 
under it. 



145. There is another event 
whereby a will duly executed may 
be invalidated, namely, the tes- 
tator's undergoing a loss of status : 
how this may happen was ex- 
plained in the preceding book. 

146. In this case the will 
may be said to be rescinded ; for 
although both those wills that 
are revoked and those that are 
not from the first made in proper 
form may be said to be rescinded, 
and those that are made in proper 
form but subsequently annulled 
by loss of status may be said to 
be revoked, yet as it is convenient 
thatdifferentgrounds of invalidity 
should have different names to 
distinguish them, we will say 
that some wills are not made in 
proper form, others made in pro- 
per form are either revoked or 
rescinded. 



138. A will may be void from the first because it is not duly 






202 SVCCESSIO PER VNIVERSITATEM [n. 138-146. 

made testamentum nullum, injustum, non jure factum or it may 
be avoided by some subsequent circumstance testamentum ruptum 
138, 144, irritum 146, destitutum or it may be upset as being 
unduteous inofficiosum. A will is destitutum, 'cum ex eo nemo 
heres extiterit,' 144. A will may be revoked or ruptured by a sub- 
sequent will, but not by a codicil. The tearing up or destruction of 
a will does not revoke it, unless this is done by the testator ' animo 
revocandi.' See 151, comm. The innovations of Justinian changed 
the effects of adoption. Under his enactment, if a child is adopted 
by an ascendant the old rules obtain ; but a person adopted by a 
stranger only acquires rights in the adoptive family in case of 
the adopter's intestacy, and therefore need not be instituted or 
disinherited by the adopter ; he retains, however, his rights in 
his natural family, and therefore must be instituted or disinherited 
in the will of his natural parent. 1 97-107, comm. 

139. By English law the only circumstance by which a will is 
avoided (besides revocation, cancellation, execution of a later will) 
is the marriage of the testator, and this operates universally, irre- 
spectively of the birth of children. Marriage without manus, which 
was usual in the time of Gaius, had no effect on a will. 

140. This was reversed before the time of Justinian, for we find 
in Dig. 28, 3, 18 that the institution of the future adoptive son saves 
a will from being ruptured by adoption. Indeed, considering that 
the object of the lex Vellaea was to save wills from rupture, we may 
be surprised that the extension of its provisions from the natural 
postumi to the artificial postumi or quasi postumi had not been 
established in the days of Gaius. 

141. Cf. 1 132-136. 

142, As to erroris causae probatio see 1 67. 

BONOEVM POSSESSIO SECVNDVM TABVLAS. 

147. Nontamen per omnia !47. Wills are not altogether 

inutilia sunt ea testamenta inoperative either when originally 

quae uel ab initio non iure informal or when though at first 

facta sunt uel iure facta postea m * de in PP er fo ^ were 

inrita facta aut rupta sunt. subsequently rescinded or re- 

, voked ; for if the seals ot seven 

nam si septem tedium sigms ^^ are ^ the ^ 

signata sint testamenta, potest mentaryheir is entitled to demand 

scnptus heres secundum tabu- possession in accordance with the 

las bonorum possessionem pe- will> if the testator was a citizen 

tere, si modo defunctus testator of Rome an( j sui j ur i s a t the time 

et ciuis Romanus et suae pote- O f his death ; but if the cause of 

statis mortis tempore fuerit. nullity was, say, the testator's loss 

nam si ideo inritum factum sit of citizenship, or loss of liberty, 

testamentum, quod puta ciui- or adoption and he dies subject 



ii. 147-151.] BON. POSS. SECVNDVM TABVLAS 203 



tatem uel etiam libertatem 
testator amisit, aut is in ado- 
ptionem se dedit (et) mortis 
tempore in adoptiui patris po- 
testate fuit, non potest scriptus 
heres secundum tabulas bono- 
rum possessionem petere. 

Inst.2, 17,4. 

148. (Itaque qui} secun- 
dum tabulas testamenti quae 
aut statiin ab initio non iure 
factae sint, aut iure factae 
postea ruptae uel inritae erunt, 
bonorum possessionem acci- 
piunt, si modo possunt heredi- 
tatem optinere, habebunt bono- 
rum possessionem cum re; si 
uero ab iis auocari hereditas 
potest, habebunt bonorum pos- 
sessionem sine re. 

149. Nam si quis heres iure 
ciuili institutus sit uel ex primo 
uel ex posteriore testamento, 
uel ab intestato iure legitimo 
heres sit, is potest ab iis here- 
ditatem auocare ; si uero nemo 
sit alius iure ciuili heres, ipsi 
retinere hereditatem possunt, 
nee ullum ius aduersus eos 
habent cognati qui legitimo 
iure deficiuntur. 

149 a. AliquaraZo tamen, 
sicut supra | quoque notaui- 
mus, etiam legitimis heredibus 
potiores scripti habentur, veluti 
si ideo non iure \ factum sit 
testamentum, quod familia non 
uenierit aut nun cupationis 
uerba testator locutus non sit ; 

j (/nati petant heredi- 

tatein 1 ex coustitutione 



150. 
lulia 



ueri- 



-lege 



possessores- 



eja lege bona caduca fiunt et ad 
populum deferri | iubentur, si 
defuncto nemo . 



to his adoptive father's power, the 
heir instituted in the will is barred 
from demanding possession in ac- 
cordance with the will. 



148. Persons granted posses- 
sion in accordance with a will 
either originally not made in due 
form or originally made in due 
form and subsequently revoked or 
rescinded, have, if only they can 
maintain their right to the inheri- 
tance, effective possession of it 
(bonorum possessio cum re) ; but if 
they can be deprived of the property 
by an adverse claimant, the grant 
of possession to them is ineffective 
(bonorum possessio sine re), 

149. For an heir instituted 
according to jus civile either by 
an earlier or later will, or a statu- 
tory heir by intestacy, can evict 
the mere bonorum possessor ac- 
cording to the will from the in- 
heritance; but in default of such 
claim on the part of a civil heir, 
such possessor according to the 
will can retain the inheritance, and 
cannot be deprived of it by cog- 
nates, these having no civil title. 

149 a. Sometimes, however, 
an heir with a civil title is post- 
poned to an irregularly appointed 
heir ; for instance, if the irregu- 
larity was only the absence of 
mancipation or nuncupatory pub- 
lication, since if the agnates of the 
deceased claim the inheritance, 
they may be repelled by the plea 
of fraud, according to the consti- 
tution of the Emperor Antoninus. 

150. Possession according to 
the will is not defeated by the lex 
Julia, underwhich law a condition 
of caducity or devolution to thefis- 
cus is the absence of every kind of 
heir, whether civil or praetorian. 



204 SVCCESSIO PER VNIVERSITATEM [n. 147-151. 



151. | Potest ut iure facta 
testamenta contraria uoluntate 
| infirmeTitur. apparet (autem) 
non posse QX eo solo infirma ri 
testamentum, quod postea te- 
stator id noluerit ualere, usque 
adeo ut si linum eius incident, 
nihilo minus iure ciuili ualeat. 
quin etiam si deleuerit quoque 
&ut conbusserit tabulas testa-' 
menti, nihilo minus {non} de- 
sinent ualere quae ibi fuerunt 
scripta, licet eorum probatio 
difficilis sit. 

151 a. Quid ergo est? si 
quis ab intestato bonorum pos- 
sessionem petieri et is | qui ex 
eo testamento heres est petat 

hereditatem, 1 |- 

perueniat hereditas ; et hoc ita 
rescripto imperatoris Antonini 
significatur. 



151. A validly executed will 
may be invalidated by a contrary 
expression of will : but a will is 
not, it is clear, invalidated by the 
mere intention of revocation. And 
consequently, in spite of the testa- 
tor's cutting the strings by which 
it is tied, it nevertheless, at civil 
law, continues valid : and his era- 
sure or burning of the dispositions 
does not render them invalid, 
though it makes them difficult of 
proof. 



151 o. What then is the 
result ? If a claimant demand 
bonorum possessio by intestacy, 
and a testamentary heir under 
such circumstances demand the 
civil inheritance under the will, 
the latter is repelled by the plea 
of fraud: and if no one should 
demand bonorum possessio by 
title of intestacy, the testamentary 
heir is superseded by the fiscus 
as unworthy of the succession in 
order to carry the testator's in- 
tention of excluding him into 
effect : and this was enacted by a 
rescript of the Emperor (Marcus 
Aurelius) Antoninus. 



147. The validity of a testament implies, strictly speaking, the 
continuance of a testator's intention, and therefore of his capacity of 
intention (testamenti factio), from its first declaration to the moment 
of his death. Accordingly an intermediate capitis diminutio avoided 
the will invalid (irritum) at civil law, 146. The praetor, however, 
only looked at the first and last moments, and, if at these periods the 
testator had testamenti factio, sustained his intentions by granting 
possession according to the will, although he had undergone capitis 
diminutio minima in the intervening period. 

So at civil law a will was revoked (ruptum) by after-birth (agnatio) 
of a self- successor, 138 ; but if he died before the testator, the 
praetor sustained the will by granting possession according to the 
will to the heir instituted in it. Dig. 28, 3, 12 pr. Postumus 
praeteritus, vivo testatore natus, decessit : licet juris scrupulositate 
nimiaque subtilitate testamentum ruptum videatur, attamen si 



ii. 147-151.] BON. POSS. SECVNDVM TABVLAS 205 

signatum fuerit testamentum, bonorum possessionem secundum 
tabulas accipere heres scriptus potest, remque obtinebit, ut et divus 
Hadrianus et Imperator noster rescripserunt. In order that posses- 
sion in accordance with the will, granted when a will had been 
avoided (irritum) by intervening loss of capacity, might be efficacious 
(cum re), i. e. not defeasible by the claimant entitled at civil law by 
intestacy, it was necessary that the testator on reacquiring capacity 
should confirm his will by a codicil or other writing (codicillis aut 
aliis litteris), Dig. 37, 11, 11, 2. 

148. There was no ipso jure, or necessarius, bonorum possessor, 
corresponding to the heres necessarius, 152, with whom delatio 
and adquisitio hereditatis were coincident : all bonorum possessores 
corresponded to the other class of heres, the heres extraneus or 
voluntarius, with whom adquisitio was distinct from delatio here- 
ditatis, and required a voluntary act (aditio). That is to say, the 
person called (vocatus) by the praetorian edict to the succession 
forfeited his right to succeed unless he made his claim (agnitio, 
petitio, admissio bonorum possessionis) within a certain period, for 
ascendants and descendants a year, for others 100 dies utiles from the 
date of the vocatio (delatio). On the claim under the edict being made, 
the grant (datio) of bonorum possessio followed as a matter of course 
without any judicial investigation (causae cognitio). It was a mere 
formality, a certificate of the magistrate, the praetor or praeses 
provinciae, that the agnitio had been made within the allotted 
period, before the expiration of the term allowed for deliberation. 
If any real controversy arose, it was decided by one of two actions, 
hereditatis petitio, or the Interdict Quorum bonorum. If the 
claimant relied on his title at civil law, he sued by hereditatis 
petitio ; if he relied on the title given him by the praetorian edict, 
he sued by the Interdict Quorum bonorum. See 4 144. If defeated 
in either of these proceedings, he gained nothing by having obtained 
the formal grant of praetorian succession he had only bonorum 
possessio sine re. 

149 a. A praetorian title was, as a general rule, sine re, if a civil 
title was opposed to it, but the constitution of the Antonine emperor, 
probably Marcus Aurelius, mentioned here and in 120, made an 
important inroad on this principle. 

150. Originally when a heritage was vacant from the failure of 
intestate successors, Ulpian 28, 7, or from the neglect of an heir to 
enter upon it, 52, any stranger might take possession and acquire by 
usucapio, but this right was rendered ineffectual by Hadrian's Senatus- 
consultum, 57. The lex Julia de Maritandis ordinibus, which is 
the statute here referred to, was passed A. D. 4 ; for an account of its 
purport and of the meaning of the term caduca see 190 and 206, 



206 SVCCESSIO PER VNIVERSITATEM [ir. 147-151. 

comm. Besides its rights to caduca under this statute the public 
treasury or that of the Emperor could claim all inheritances left 
without an heir (bona vacantia). The state did not become necessary 
successor (ipso jure) but had the delatio (ad populum deferri jubentur), 
i. e. had the right of deliberation and acceptance or repudiation, Inst. 
3, 11, 1. As universal successor the state could recover from the 
unentitled occupant by Hereditatis petitio, Dig. 5, 3, 20, 7, and could 
transfer its rights to a purchaser, as if the transfer were made under 
the Sc. Trebellianum, 1. c. 54 pr. (cf. 253). 

The treasury was bound to pay all codicillary legacies and trusts : 
and succeeded to all the obligations active and passive, in other 
words, to all the personal rights and personal duties, of the heritage- 
leaver : but like other successors in later times, under the law of 
Justinian, might, by taking advantage of the Benefice of inventory, 
confine its liability to the extent of the assets, 158-162, comm. 
In the event of the repudiation of the succession by the Fiscus, the 
goods were sold for the benefit of creditors. Vangerow, 564. 

Gains probably here means, though the MS is defective, that 
although a grant of bonorum possessio might be rendered ineffective 
(sine re) in consequence of the superior claims of a person with 
a civil title by whom the possessor could be evicted, the fiscus had 
no title to an inheritance under the lex Julia, if the deceased, though 
without a civil successor, had left a bonorum possessor. (Cf. note on 
150 in Muirhead's Gaius.) 

151. The Eupture (ruptio) of a will was produced by two 
circumstances: (i) Agnatio postumi, the subsequent birth of a self- 
successor, or the coming into existence of a quasi postumus, 1 39 : 
and (2) Revocation, 138-146, comm. On the principle, Nihil tarn 
naturale est quam eo genere quidque dissolvere quo colligatum est 
(Dig. 50, 17, 35), the most formal and originally the only mode of 
revoking a will would be the execution of a subsequent will. Another 
mode of Revocation sanctioned by Justinian depended on two con- 
ditions: a declaration attested by three witnesses or made in the 
form of a record or protocol deposited in the archives of a court, and 
the expiration of ten years from the date of the execution of the will. 
Cod. 6, 23, 27. 

The mere cancellation or obliteration of a will, with the intention 
of revoking it, was an informal Revocation and left the will valid at 
civil law : the will, however, was not allowed to hold good against 
this evidence of the testator's change of intention. The rescript of 
Marcus Aurelius A. D. 166 to this effect, to which Gaius alludes 
151 a, is preserved in the Digest, 28, 4, 3. 

Justinian ordained that a will should be perfectly revoked and 
completely avoided by the cutting of the cords, or removal of the 



ii. 147-151.] BONA EREPTORIA 207 

seals, or other intentional destruction of the outward signs of its due 
solemnization, Cod. 6, 23, 30. English law, as laid down in 1 Viet. 
c. 26 20 and interpreted in the celebrated case of Lord St. Leonards, 
L. K. 1 P. D. 154, seems to be in conformity with Eoman law on the 
subject of unintentional erasure or destruction of a will. 

151 a. Ereption for indignitas, an institution which survived in the 
legislation of Justinian, Dig. 34, 9, Cod. 6, 35, must be distinguished 
from the lapse of a testamentary disposition under the lex Julia (cadu- 
cum), 185-190, comm. In the latter case there was want of capacitas, 
as opposed to want of testamenti factio passiva, on the part of honoratus. 
In the case of the indignus there was not even incapacitas but only 
liability to deprivation. Some grounds of Ereption were common to 
the heir and legatee, others peculiar to the heir, others peculiar to the 
legatee. The forfeiture of the inheritance or legacy was sometimes 
in favour of the Fiscus, sometimes in favour of other persons, usually 
of those who would have taken but for the disposition in favour of 
indignus. 

Instances of grounds for which either heir or legatee forfeited their 
interest to the Fiscus were : undertaking a secret unlawful trust, 
coercion of the testator in respect of his will, killing the testator or 
neglect to avenge his death, wrongful impeachment of his will for 
inofficiositas, &c. 

Grounds for which their shares were forfeited to other persons than 
the Fiscus were : refusal of the office of guardian when the prospect 
of the discharge of this duty was the motive of the testator's bounty, 
refusal to undertake the education of an infant child of the testator, 
neglect of the testator's burial, &c. 

Grounds on which the heir alone forfeited the whole or part of his 
inheritance to the Fiscus were : concealment of a portion of the here- 
ditaments in order to defraud a legatee (whereupon the heir forfeited 
the fourth which he was entitled to retain from such legacy by the 
lex Falcidia), the discovery that though putative son he was not 
a genuine son of the testator, the deliberate cancellation of his name 
by the testator, the imperfect execution of a subsequent will in 
which he was excluded from the heritage, a codicillary declaration 
of his unworthiness to inherit, &c. 

Grounds on which an heir forfeited his portion to persons other 
than the Fiscus were : neglect on the part of a mother to demand 
a guardian for her infant child, a second marriage by a mother who 
herself is guardian before she has caused another guardian to be sub- 
stituted, neglect of a lunatic testator, neglect to ransom the testator, 
criminal prosecution of testator, &c. 

Grounds exclusively affecting a legatee and that in favour of the heir 
are theft from the heritage and concealment of the testator's will. 



208 SVCCESSIO PER VNIVERSITATEM [n. 152-173. 



DE HEREDVM QVALITATE ET DIFFERENTIA. 



152. Heredes autem aut 
necessarii dicuntur aut sui et 
necessarii aut extranei. 

Inst. 2, 19 pr. 

153. Necessarius heres est 
seruus cum libertate heres in- 
stitutus, ideo sic appellatus, 
quia siue uelit siue nolit, omni 
modo post mortem testatoris 
protinus liber et heres est. 

Inst. 2, 19,1. 

154. Vnde qui facultates 
suas suspectas habet, solet 
seruum suum primo aut se- 
cundo uel etiam ulteriore gradu 
liberum et heredem instituere, 
ut si creditoribus satis non 
fiat, potius huius heredis quam 
ipsius testatoris bona uenean, 
id est ut ignominia quae accidit 
ex uenditione bonorum hunc 
potius heredem quam ipsum 
testatorem contingat ; quam- 
quam apud Fufidium Sabino 
placeat eximendum eum esse 
ignominia, quia non suo uitio 
sed necessitate iuris bonorum 
uenditionem pateretur; sed alio 
iure utimur. Inst. 1. c. 

155. Pro hoc tamen in- 
commodo illud ei commodum 
praestatur, ut ea, quae post 
mortem patroni sibi adquisierit, 
siue ante bonorum uenditionem 
siue postea, ipsi reseruentur ; 
et quamuis pro portione bona 
uenierint, iterum ex hereditaria 
causa bona eius non uenient, 
nisi si quid ei ex hereditaria 
causa fuerit adquisitum, uelut 
si f Latinus adquisierit, locu- 
pletior factus sit ; cum cete- 
rorum hominum quorum bona 
uenierint pro portione, si quid 



152. Heirs are either neces- 
sary successors or necessary self- 
successors or external successors. 
\ 

153. A necessary successor is 
a slave instituted heir with free- 
dom annexed, so called because, 
willing or unwilling, without any 
alternative, on the death of the 
testator he immediately has his 
freedom and the succession. 

154. For when a man's affairs 
are embarrassed, it is common for 
his slave, either in the first place 
(institutio) or as a substitute in 
the second or any inferior place 
(substitutio), to be enfranchised 
and appointed heir, so that, if the 
creditors are not paid in full, the 
property may be sold rather as be- 
longing to this heir than to the 
testator, the ignominy of insol- 
vency thus attaching to the heir in- 
stead of to the testator; though, as 
Fufidius relates, Sabinus held that 
he ought to be exempted from ig- 
nominy, as it is not his own fault, 
but legal compulsion, that makes 
him insolvent; this, however, is 
not in our view the law. 

155. To compensate this dis- 
advantage he has the advantage 
that his acquisitions after the 
death of his patron, and whether be- 
fore or after the sale, are kept apart 
for his own benefit, and although 
a portion only of the debts is 
satisfied by the sale, he is not 
liable to a second sale of his after- 
acquired property for the debts of 
the testator, unless he gain any- 
thing in his capacity as heir, as if 
he inherit the property of a Lati- 
nus Junianus [another freedman 
of the testator] ; whereas other 
persons, who only pay a dividend, 



ii. 152-1 73.] DE HEREDVM QVALITATE 



postea adquirant, etiam saepius 
eorum bona uemre sclent. 

Inst. 1. c. 

156. Sui autem et neces- 
sarii heredes sunt uelut filius 
filiaue, nepos neptisue ex filio, 
(ety deinceps ceeri qui modo 
in potestate morientis fuerunt. 
sed uti nepos neptisue su^s 
heres sit, non sufficit eum in 
potestate aui mortis tempore 
fuisse, sed opus est ut pater 
quoque eius uiuo patre suo 
desierit suus heres esse aut 
morte interceptus aut qualibet 
ratione liberatus potestate ; turn 
enim nepos neptisue in locum 
sui patris succedunt. 

Inst. 2, 19, 2. 



157. Sed sui quidem heredes 
ideo appellantur,quia domestici 
heredes sunt et uiuo quoque 
parente quodammodo Domini 
existimantur ; undo etiam si 
quis intestatus ' mortuus sit, 
prima causa est in successiqne 
liberorum. necessarii uero ideo 
dicuntur, quia omni modo, 
(sine} uelint si\ie (nolint, tarn) 
ab intestate quam ex testa- 
mento heredes fiunt. Inst. 1. c. 

158. Sed his praetor per- 
inittit abstinere se ab here- 
ditate, ut potius parentis bona 
ueneant. Inst. 1. c. 

159. Idem iuris est et (m) 
uxoris persona quae in manu 
est, quia filiae loco est, et in 
nuru quae in manu filii est, 
quia neptis loco est. 

160. Quin etiam similiter 
abstinendi pofestatem facit 
praetor etiam ei qui in causa 



on subsequently acquiring any 
property, are liable to subsequent 
sales again and again. 

156. Sui et necessarii heredes 
are such as a son or daughter, a 
grandson or granddaughter by 
the son, and further lineal de- 
scendants, provided that they 
were under the power of the an- 
cestor when he died. To make 
a grandson or granddaughter self- 
successor it is, however, not 
sufficient that they were in the 
power of the grandfather at the 
time of his death, but it is further 
requisite that their father in the 
life of the grandfather shall have 
ceased to be self-successor, 
whether by death or by any 
mod.e of liberation from parental 
power, as the grandson and 
granddaughter then succeed to 
the place of the father. 

157. They are called sui 
heredes because they are family 
heirs, and even in the lifetime of 
the parent are deemed to a certain 
extent co-proprietors ; wherefore 
in intestacy the first right of 
succession belongs to the children. 
They arp called necessary, because 
they have no alternative, but, 
willing or unwilling, both in 
testacy and intestacy, they be- 
come heirs. 

158. The praetor, however, 
permits them to abstain from the 
succession, and leave the estate of 
the ancestor to be sold as an in- 
solvent one. 

159. The same rule governs 
a wife in the hand of a husband, 
for she is on the footing of a 
daughter, and a son's wife in the 
hand of the son, for she is on the 
footing of a granddaughter. 

160. A similar power of absten- 
tion is granted by the praetor to 
a person held in mancipium when 



210 SVCCESSIO PER VNIVERSITATEM [n. 152-173. 



mancipii est, (si) cum libertate 
heres institutus sit, quamuis 
necessarius, non etiam suus 
heres sit, tamquam seruus. 

161. Ceteri qui testatoris 
iuri subiecti non sunt extranei 
heredes appellantur. itaque 
liberi quoque nostri qui in 
potestate nostra non sunt here- 
des a nobis instituti [sicut] ex- 
tranei uidentur. qua de causa 
et qui a matre heredes insti- 
tuuntur eodem numero sunt, 
quia feminae liberos in pote- 
state non habent. serui quo- 
que qui cum libertate heredes 
instituti sunt et postea a domi- 
no manumissi, eodem numero 
habentur. Inst. 2, 19. 3. 

162. Extraneis autem here- 
dibus deliberandi potestas data 
est de adeunda hereditate uel 
non adeunda. Inst. 2, 19, 5. 

& 163. Sed siue is cui absti- 
j. . . 

nendi potestas est inmiscuerit 

se bonis hereditariis, siue is cui 
de adeunda (Jiereditate} de- 
liberare licet, adierit, postea 
relinquendae hereditatis facul- 
tatem non habet, nisi si minor 
sit annorum xxv. nam huius 
aetatis hominibus, sicut in cete- 
ris omnibus causis deceptis, ita 
etiam si temere damnosam here- 
ditatem susceperint. praetor 
succurrit. scio quidem diuum 
Hadrianum etiam maiori xxv 
annorum ueniam dedisse, cum 
post aditam hereditatem grande 
aes alienum quod aditae here- 
ditatis tempore latebat ap- 
paruisset. Inst. 1. c., and 6. 

164. Extraneis heredibus 
solet cretio dari, id est finis 
deliberandi, ut intra certum 
temp us uel adeant hereditatem, 



instituted heir with freedom an- 
nexed, although he is simply a 
necessary successor and not also 
a self-successor, mancipation being 
assimilated to servitude. 

161. Those who were not 
subject to the testator's power 
are called strangers, or external 
heirs. Thus children not in our 
power, if instituted heirs, are 
deemed strangers ; and for the 
same reason children instituted 
by their mother belong to this 
class, because women are not 
invested with power over their 
children. Slaves instituted heirs 
with freedom annexed, and sub- 
sequently manumitted, belong to 
the same class. 



162. External heirs have the 
right of deliberating whether they 
will or will not enter on an 
inheritance. 

163. But if either a person 
who has the power of abstention 
or a person who has the power of 
deliberation as to his acceptance 
of the inheritance, interferes with 
the property belonging to the in- 
heritance, he has no longer the 
right of relinquishing the inheri- 
tance, unless he is a minor un- 
der twenty-five years of age ; for 
minors, both when they take any 
other injudicious step, and when 
they incautiously accept a disad- 
vantageous inheritance, obtain re- 
lief from the praetor. The late 
Emperor Hadrian even relieved a 
person who had attained his ma- 
jority, when, after his acceptance 
of an inheritance, a great debt, 
unknown at the time of accept- 
ance, had come to light. 

164. External heirs are com- 
monly given by the will a pre- 
scribed term for decision (cretio), 
that is, a definite delay for deli- 
beration, within which time they 



IT. 152-173.] DE HEREDVM QVALITATE 



211 



uel si non adeant, temporis fine 
summoueantur. ideo autem 
cretio appellata est, quia cernere 
est quasi decernere et consti- 
tuere. 

165. Cum ergo ita scriptum 
sit HEEES TITIVS ESTO, adicere 
debemuscERNiTOQVE IN CENTVM 

DIEBVS PROXIMIS QVIBVS SCIES 
POTERISQVE. QVODNI ITA CRE- 
VERIS, EXHERES ESTO. 



166. Et qui ita heres in- 
stitutus est, si uelit heres esse, 
debebit intra diem cretionis 
cernere, id est haec uerba dicere 

QVOD ME P. MEFIVS TESTAMENTO 
SVO HEREDEM INSTITVIT, EAM 
HEREDITATEM ADEO CERNOQVE. 

quodsi ita non creuerit, finite 
tempore cretionis excluditur ; 
nee quicquam proficit, si pro 
herede gerat, id est si rebus 
hereditariis tamquam heres 
utatur. Inst. 2, 19, 7. 

167. At is qui sine cretione 
heres instiutus sit, aut qui ab 
intestate legitimo iure ad here- 
ditatem uocatur, poteti aut cer- 
nendo aut pro herede gerendo 
uel etiam nuda uoluntate sus- 
cipiendae hereditatis heres fieri ; 
eique liberum est quocumque 
tempore uoluerit, adire here- 
ditatem ; (sec?) solet praetor 
postulantibus hereditariis cre- 
ditoribus tempus constituere, 
intra quod si ueKt adeat here- 
ditatem, si minus, ut liceat 
creditoribus bona defuncti uen- 
dere. 

168. Sicui autem {qui} 
cum cretione heres institutus 
est, nisi creuerit hereditatem, 
non fit heres, ita non aliter ex- 



must formally accept, and in de- 
fault of formal acceptance are 
barred. Cretio is so called because 
the word cernere is equivalent to 
decernere, that is, to come to a 
determination and resolution. 

165. Accordingly, after the 
words, ' Titius, be thou my heir,' 
we ought to add, 'and formally 
declare thy acceptance within 
a hundred days in which thou 
knowest of thy institution and 
hast power to declare whether 
thou accept ; or in default of so 
declaring be thou disinherited.' 

166. And the heir thus 
appointed, if he wish to inherit, 
must within the term prescribed 
solemnly declare his decision in 
the following words : ' Whereas 
Publius Mevius in his will has 
made me his heir, that inheritance 
I hereby accept and adjudge to 
myself.' In default of such 
formal declaration, the elapsing 
of the period allowed shuts him 
out from the inheritance, and it 
is of no avail that he behave as 
heir, that is, deal with the estate 
of the deceased as if he were heir. 

167. In the absence of a pre- 
scribed term for deliberation in 
the case of testamentary succes- 
sion, and in the case of a statutory 
right of succession on intestacy, 
a man takes the inheritance either 
by formal declaration, or by be- 
having as heir, or by informal 
declaration, and is not barred 
from accepting by any lapse of 
time ; but it is usual for the 
praetor, at the demand of the 
creditors of the deceased, to ap- 
point a period, on the expiration of 
which without his acceptance the 
creditors are permitted to put up 
the estate of the deceased for sale. 

168. But just as a person 
who is instituted heir subject to 
a prescribed term for decision 
does not actually become heir 



212 SVCCESSIO PER VNIVERSITATEM [n. 152-173. 



cluditur, quam si non creuerit 
intra id tern pus quo cretio finita 
eat ; itaque licet ante diem cre- 
tionis constituent hereditatem 
non adire, tamen paenitentia 
actus superante die cretionis 
cernendo heres esse pptest. 



169. At is qui sine cretione 
heres institutus est, quiue ab 
intestate per legein uocatur, 
sicut uoluntate nuda heres fit, 
ita et contraria destinatione 
statim ab hereditate repellitur. 

170. Omnis autem cretio 
certo tempore constringitur. in 
quam rem tolerabile tempus 
uisum est centum dierum. po- 
test tamen nihilo minus iure 
ciuili au.t longius aut breuius 
tempus dari ; longius tarnen 
inferdum praetor coartat. 

17}.. Et quamuis omnis 
cretio certis diebus constringa- 
tur, tamen alia cretio uulgaris 
uocatur, alia certorum dierum : 
uulgaris ilia, quam supra ex- 
posuimus, id est in qua ad- 
icfuntur haec uerba QVIBVS 
SCIET POTERITQVE ; certorum 
dierum, in qua detractis his 
uerbis cetera scribuntur. 

172. Quarum cretionum 
magna differentia est. nam 
uulgari cretione data nulli dies 
conputantur, nisi quibus scierit 
quisque se heredem esse insti- 
tutum et possit cernere. cer- 
torum uero dierum cretione da- 
ta etiam nescient i se heredem 
institutum - esse numerantur 
dies continui ; item ei quoque 
qui aliqua ex causa cernere 
prohibetur, et eo amplius ei 



unless he makes a formal declara- 
tion of his acceptance, so the 
only way he is excluded from 
the inheritance is by his not thus 
declaring within the last day of 
the appointed term ; and though, 
pending the term, he may have 
made up his mind to disclaim, 
yet if he change his mind before 
the time is expired and formally 
declare his acceptance, he can 
become heir. 

1 69. If no term is prescribed 
in the institution, or in the case 
of a statutory right of succession 
on intestacy, just as an informal 
declaration makes him heir, so the 
contrary declaration immediately 
bars him from the succession. 

170. Every prescribed term 
of deliberation has a certain limit, 
and a reasonable limit is held to 
be a hundred days, yet by the 
civil law a longer or shorter period 
is allowed to be fixed, though a 
longer period is sometimes short- 
ened by the praetor. 

171. Although, however, the 
time of deliberation is always 
limited to .certain days, yet one 
mode of limitation is called ordi- 
nary, the other determinate ; the 
ordinary being that above in- 
dicated, namely, with the addition 
of the words ' in which he knows 
and is able ' ; determinate that in 
which these words are omitted. 

172. These modes are very 
different in effect, for when the 
ordinary period is allowed, the 
only days computed are those on 
which he knows of his institution 
and is in a position to decide, 
but when a determinate period 
is allowed, notwithstanding the 
heir's want of knowledge of his 
institution, the days begin to be 
counted continuously ; and so not- 
withstanding his inability from 
any cause to declare, or any con- 



ii. 152-173.] DE HEREDVM QVALITATE 213 

qui sub condi clone heres iwsti- dition annexed to his institution, 
tutus est, tempus numeratur ; nevertheless the days begin to be 
unde melius et aptius est uul- reckoned. Accordingly, it is better 
gari cretione uti. and more convenient to employ 

the ordinary mode of limitation. 

173. Continua haec cretio 173. The determinate period 
uocatur, quia continui dies is called continuous, because the 
numerantur. sed quia [tamen] days are reckoned continuously, 
dura est haec cretio, altera in On account of the harshness of 
usu habetur ; unde etiam uul- this condition the other is com- 
garis dicta est. monlv employed, and hence is 

called ordinary. 

152. The rules of institution and disinheritance were formal 
restrictions on the unlimited power of testamentary disposition, which 
was conferred by the terms of the Twelve Tables ; 102, comm. The 
general tendency and purpose of these restrictions are to protect 
children against the caprice of parents, and to be fully compre- 
hended they should be viewed in connexion with the rules respecting 
testamentum inofficiosum, which were not simply formal but real 
restrictions of- testamentary freedom. These limitations of testa- 
mentary power may be considered as consequences of the Eoman 
conception of family duty. An English testator has unlimited 
power to dispose of his property, and natural feeling is supposed 
to be a sufficient guaranty that none of his children will be left 
without suitable provision. Of Koman testators Justinian says : 
Inst. 2, 18 pr. Plerumque parentes sine causa liberos suos vel 
exheredant vel omittunt. The grounds on account of which parents 
may disinherit children, and children parents, are stated by Justinian 
in his 115th Nov., where the law on the subject of disinherison is 
consolidated and amended. They had to be mentioned in the will, 
and it was open to the disinherited person to show that they were 
unfounded. It is to be noticed that foreign systems of law, following 
the Koman example, generally restrict the father's power of disin- 
herison. Cf . Sohm, 1 1 3. The principal impediments to or restric- 
tions on testamentary freedom in the history of Eoman law may be 
distinguished as follows : 

(1) We have seen, 123, that a suus heres must either be instituted 
or disinherited, a rule which the praetor extended to an emancipated 
child, 135. This secured him against being simply forgotten. 

(2) If a child was disinherited without a cause, or received less than 
one fourth, either as heir or legatee, of what his share would have been 
by intestate descent (portio legitima), he could by impeaching the will 
as immoral or unnatural (querela inofficiosi testamenti) have it set 
aside on the fictitious presumption of the testator's insanity. The 
presumption, at least, was so far fictitious that it was not allowed to 



214 SVCCESSIO PER VNIVERSITATEM [n. 152-173. 

l)e rebutted by any other proof of his sanity except proof of the 
adequacy of the motives for which the child was disinherited. The 
querela inofficiosi was a form of petitio hereditatis, that is, a real 
action, and fell under the jurisdiction of the centumviral court, 4 31. 
Cf. Pliny, Ep. 5, 1 ; 6, 33. The amount of the share which must be 
left to a child to save a will from avoidance for inofficiositas bears 
some analogy to a requirement of the lex Falcidia, for it is identical 
with the amount which that law secures to the child or any one else 
when instituted heir as against the claims of legatees. The querela 
inofficiosi could not only be brought by a child but also by certain 
other near relatives, namely, parents, and by brothers and sisters, 
but by the last only if a turpis persona was instituted. Children 
and other near relations, even though emancipated, might be entitled 
to this remedy. See Inst. 2, 18 ; Dig. 5. 2 ; Cod. 3, 28. 

(3) Although a child (or any one else) were instituted heir, yet the 
institution might be made illusory by the exhaustion of the whole 
inheritance in legacies, leaving nothing to the heir but the burden of 
administration. To meet this, the lex Falcidia provided that when 
more than three fourths of an inheritance is absorbed in legacies, all 
the legacies should abate proportionably so as to leave the heir a clear 
fourth of the portion in which he was instituted (quarta Falcidia), 227. 

(4) The senatus consultum Pegasianum provided in the same way 
against the inheritance being similarly exhausted by fideicommissa, 
254. 

We may add that an impubes adopted by adrogation, if disinherited 
or without cause emancipated, was entitled to one fourth of the inheri- 
tance of his adoptive father (quarta Antonini), 1 102 ; Inst. 1, 11, 3. 

154. Primo aut secundo vel etiam ulteriore gradu, for an account 
of substitutio see 174, &c. 

155. Velut si Latinus, cf. 195 and 3 58 ; and for an explanation 
of the idiom see note to this passage in Muirhead's Gaius. 

157. Communism or co-ownership appears to be an older insti- 
tution than divided or individual ownership. Even after the rights 
of the paterfamilias had been enormously developed at the expense 
of the rest of the household, as may have been the case in prehistoric 
times, a vestige of the times when property vested rather in the 
family than in the chief was perhaps preserved in the rules re- 
specting the suus heres. Suus heres appears equivalent to sibi heres, 
and implies that he who now enters on proprietary rights in the 
character of paterfamilias had already possessed proprietary rights 
over the same subject-matter in the character of filiusfamilias. 

Less barbarous than self-successor (the term chosen to represent 
suus heres as expressing sibi heres) but too long for perpetual use, 
would have been the circumlocution, immediate lineal successor. 



ii. 152-173.] DE HEREDVM QVALITATE 215 

Suus heres is a lineal descendant as opposed to the legitimus heres 
or nearest agnate, who is a collateral relation, on whom the inheritance 
devolves by the lex duodecim Tabularum in case there are no sui : 
and he is an immediate heir as opposed to an eventual heir. For 
instance, a grandson by an unemancipated son is in the grandfather's 
power, and may eventually be his heir, but is not his suus heres 
during the life of the son. 

158-162. After acquiring an inheritance the heir became 
personally liable to the testator's creditors for the full amount of the 
testator's debts. But to relieve sui et necessarii heredes from being 
thus compulsorily burdened, the beneficium abstinendi was given 
them, 158. The praetor could not, indeed, unmake, any more than 
he could make, a heres, but by his control over procedure he could 
put a person who had a civil title in the same position as if he had 
none, while, on the other hand, he regarded persons, having no civil 
title to the inheritance, as if they were heredes. 

Adquisitio hereditatis by an external or voluntary heres may 
probably have required at first in all cases a formal act (cretio) ; but 
acting the part of heres (pro herede gerere), however informally, came 
to be recognized as equivalent in legal effect to a formal declaration, 
unless an institution was expressly made ' cum cretione.' The object 
of instituting an heir ' cum cretione ' was to oblige him to accept or 
abandon the inheritance within a prescribed term. For otherwise 
the law allowed him to postpone his decision indefinitely, 167. 

It was to get rid of the inconvenience caused by leaving the 
inheritance open for a long period, that the praetor at the request of 
creditors of the estate fixed a period, generally a hundred days 
(tern pus deliberandi), after which he authorized the sale of the pro- 
perty, 167. When it became customary for the praetor to prescribe 
this time for deliberation, the formularies of cretio had no intelligible 
policy and were regarded as irksome. After being dispensed with 
in certain cases by other emperors, they were totally abrogated by 
Arcadius and Theodosius, A.D. 407. Cod. 6, 30, 17 Cretionum 
scrupulosam sollennitatem hac lege penitus amputari decernimus. 
'Solemn declaration with its embarrassing formalities is hereby 
decreed to be absolutely abolished.' (For allusions to cretio by Cicero 
see Koby, Roman Law, 1, p. 396 and App. Bk. III.) For the 
repudiation of an inheritance by a voluntary heir no solemn form 
was at any time in use, and perhaps such repudiation was not legally 
recognized in early law, though it was possible for the heres to assign 
his right by in jure cessio. Thus an inheritance could not be lost 
any more than it could be acquired by a mere expression of intention, 
and it has been suggested that the abeyance of inheritances on this 
account was a cause which gave rise to bonorum possessio. In the 



216 SVCCESSIO PER VNIVERSITATEM [n. 152-173. 

time of Gaius, however, a heres could on delatio reject an inheritance 
by any informal act expressive of his intention, and the acceptance 
or rejection of an inheritance once made was irrevocable. 169. 

To afford an escape from the danger of accepting inheritances more 
onerous than lucrative Justinian introduced the beneficium Inventarii, 
or privilege of making an inventory, reducing the liability of an heir 
who made the required inventory to the extent of the assets that came 
to his hands. The inventory must be commenced within thirty days 
from notice of the inheritance and completed in sixty other days. It 
must be executed in the presence of a notary (tabellarius) and the 
persons interested or three witnesses, Inst. 2, 19, 6 ; Cod. 6, 30, 22. 

By English law the executor in every case is bound to make an 
inventory, and in no case is he answerable to the testator's creditors 
beyond the assets that come to his hands, unless for a sufficient 
consideration he make his own estate chargeable by a written 
engagement, as provided by the Statute of Frauds. 

164-173. When a right is extinguished by inactivity prolonged 
for a certain period, as in the case of a heres after delatio who has 
omitted to make cretio within the time prescribed, the period has two 
modes of measurement : either every day is counted, and then the 
period is called tempus continuum } or only available days, days on 
which activity is possible, are counted, and then the period is called 
tempus utile. When a general rule prescribes a term, not greater 
than a year, within which certain steps must be taken before a court 
or judicial authority, on pain of forfeiting certain rights, such a term 
must be measured as tempus utile. Such are the rules requiring 
certain suits to be instituted within a year from their nativity, that 
is, limiting a year for their period of prescription ; and the rule 
requiring the demand of the possession of a heritage (agnitio bonorum 
possessionis), whether testate or intestate, to be made, if the claimant 
is an ascendant or descendant, within a year 5 if he is a stranger, 
within a hundred days. The demand was made in writing, addressed 
to a competent magistrate, and was followed by an immediate grant de 
piano in the form of a simple subscriptio, Do bonorum possessionem. 
Kuntze, 856. When the step required is rendered impossible, not by 
a permanent obstacle, such as infancy, lunacy, prodigality, or juristic 
personality, but by some transitory circumstance, the days on which 
the action is hindered are excluded from the computation of the term. 

Such hindrance f i) may relate to the person entitled, and then will 
be his captivity, or his absence on public service, or his detention by 
weather or illness, coupled with inability to appoint a procurator : 

(2) Or, in the case of the limitation of actions, it may relate to the 
person of the defendant : if, for instance, he is unknown, or concealed, 
or absent and undefended : 



ii. 152-173.] TEMPVS VTILE 217 

(3) Or it may consist in the absence of the praetor from the court. 
Such absence might be accidental, or it might arise from the regular 
intermission of the dies juridici, or days on which the praetor per- 
formed his judicial functions, 279, comm. As in the time of Marcus 
Aurelius such days only amounted to 230 in a year (Suetonius, 
Octavianus, 32), this cause alone would make annus utilis equivalent 
to about 1^ ordinary years. The intermission of dies juridici was doubt- 
less the principal cause of a claimant's inability to perform an act in 
court on certain days ; but in Eoman law, as in modern times it was ad- 
ministered in Germany,; when much of the procedure in an action had 
come to consist in delivery of writings at the office of a court, irrespec- 
tively of its session days and vacations, this cause lost its importance. 

Knowledge (scientia) of the fact that he is entitled is not neces- 
sarily requisite on the part of the person entitled : in other words, 
his ignorance is not always sufficient to exclude a day from the 
number of dies utiles. The prescription of an action, when it is 
accomplished in annus utilis, begins to run from its nativity (actio 
nata), irrespectively of the plaintiff's knowledge of his right to sue. 
Ignorance of a right of action is generally the effect of Negligence, 
and therefore undeserving of relief, arid might be protracted for 
an indefinite period. On the contrary, ignorance is sometimes 
a condition that delays the commencement of tempus continuum : 
for instance, the 50 dies continui allowed to a person for stating 
the grounds on which hfe was entitled to be excused from accepting 
a guardianship only began to run when he had notice of his nomina- 
tion, Inst. 1, 25) 16: which shows that scientia and ignorantia have 
no necessary relation to the distinction of dies utiles and dies continui. 

In the demand (agnitio) of bonorum possessio, however, by the 
claimant of a testate or intestate succession, the edict expressly made 
the scientia as well as the potestas of the claimant a condition of dies 
utilis, Dig. 38^ 15, 2. Indeed the aditio of an inheritance was not 
possible unless made with a knowledge of the fact of the delatio 
and of its nature, whether testacj'- or intestacy. Moreover the igno- 
rance of his rights could not be ascribed to the negligence of the 
person entitled, nor was it likely to be indefinitely protracted, as it 
would be the interest of the person next entitled to give him notice 
of the delation. Knowledge will generally only affect the beginning 
of a term, and the person who is once made aware of the delation of 
an inheritance will usually continue aware : but it is possible that 
a period of error should supervene ; for instance, that, after an 
agnate has notice that he is entitled by intestacy and after his term 
for acceptance has commenced to run, a forged will should be produced 
and obtain credit : in which case the dies utiles would not continue to 
run until the forgery of the will was ascertained. Savigny, 189. 



218 SVCCESSIO PER VNIVERSITATEM [n. 174-184. 



The testamentary clause allowing a term for cretio vulgaris in 
contrast to cretio continua, like the edict relating to bonorum 
possessio, made scientia as well as potestas a condition of tempus 
utile. 

As we have seen no time was prescribed by law for the aditio of 
the civil inheritance, 167 : for the acquisition (agnitio) of the prae- 
torian succession we have seen that for ascendants and descendants 
a year, for others a hundred days was prescribed, Inst. 3, 9, 9. 
Agnitio and Repudiatio could be made by a procurator or agent, 
Dig. 37, 1, 3, 7 : not so Aditio, Dig. 29, 2, 90, and still less Cretio. 

174. Sometimes two or more 
degrees of heirs are instituted, as 
follows : ' Lucius Titius, be thou 
my heir, and declare solemnly 
within a hundred days after you 
know and are able : or, in default 
of so declaring, be disinherited. 
Thereupon, be thou, Mevius, my 
heir, and solemnly declare within 
a hundred da} 7 s,' &c. ; and in this 
way we can make as many sub- 
stitutions as we like. 



174. [DE 
B-vs.] /nterdum duos pluresue 
gradus heredum facirnus, hoc 

Hiodo L. TITIVS HEEES ESTO CEE- 



NITOQVE IN DIEBVS 
PEOXIMIS QVIBVS SCIES POTEEIS- 
QVE. QVODNI ITA CREVEEIS, 
EXHEEES ESTO. TVM MEVIVS 
HEEES ESTO CEENITOQVE IN 

DIEBVS CENTVM et reliqua. et 
deinceps in quantum uelimus 
substituere possumus. 

Inst. 2, 15 pr. 

175. Et licet nobis uel 
unum in itnius locum substi- 
tuere pluresue, et contra in 
plurium locum uel unum uel 
plures substituere. Inst. 2, 15, 1. 

176. Primo itaque gradu 
scriptus heres hereditatem cer- 
nendo fit heres et substitutus 
excluditur ; non cernendo sum- 
mouetur, etiamsi pro herede 
gerat, et in locum eius substi- 
tutus succedit. et deinceps si 
plures gradus sint, in singulis 
simili ratione idem contingit. 

177. Sed si cretio sine ex- 
heredatione sit data, id est in 
haec uerba si NON CREFJSEIS 

TVM P. MEVIVS HEEES ESTO, 

illud diuersum inuenitur, quod 
si prior omissa cretione pro 
herede gerat, substitutum in 
partem admittit et fiunt ambo 
aequis partibus heredes. quodsi 



175. We may substitute in 
place of one either one or several, 
and, conversely, in the place of 
several we may substitute either 
several or one. 

176. Accordingly, if the per- 
son instituted in the first degree 
accepts the inheritance, he is heir, 
and the substitutes are excluded : 
if he fail to declare with due for- 
mality, he is barred in spite of 
acts of heirship, and his place is 
taken by the substitute ; and if 
there are several degrees, in every 
one a similar result occurs. 

177. If the formula prescrib- 
ing a term of deliberation contains 
no clauseof disherison, but merely 
consists of these words: 'If thou 
fail to declare, be Publius Mevius 
my heir ' [cretio imperfecta], the 
result is herein different, that, if 
the person first instituted, though 
he omit the solemn declaration, 



ii. 174-184.] DE SVBSTITVTIONIBVS 



219 



neque cernat neque pro herede 
gerat, turn sane in uniuersum 
summouetur, et substitutus in 
totam hereditatem succedit. 



6 178. Sed Sabino quidem 

* i 

placuit, quamdiu cernere et eo 
modo heres fieri possit prior, 
etiamsi pro herede gesserit, non 
tamen admitti substitutum ; 
cum uero cretio finita sit, turn 
pro herede gerente admitti sub- 
stitutum. aliis uero placuit 
etiam superante cretione posse 
eum pro herede gerendo in 
partem substitutum admittere 
et amplius ad cretionem reuerti 
non posse. 



179. Liberis nostris inpu- 
beribus quos in potestate habe- 
mus non solum ita ut supra 
diximus substituere possumus, 
id est ut si heredes non ex- 
titerint, alius nobis heres sit ; 
sed eo amplius ut, etiamsi 
heredes nobis extiterint et ad- 
huc inpuberes mortui fuerint, 
sit iis aliquis heres ; uelut hoc 

modo TITIVS FILIVS MEVS MIHI 

HERBS ESTO. 81 FILIVS MEVS 
MIHI (HERES NON ERIT SIVE 
HERES) EEIT ET PRIVS MORIATVR 
QVA.M IN SVAM TVTELAM VENE- 
RIT, TVNC SE1VS HERES ESTO. 

Inst. 2, 16 pr. 

180. Quo casu siquidem 
non extiterit heres filius, sub- 
stitutus patri fit heres ; si uero 
heres extiterit filius et ante 
pubertatem decesserit, ipsi filio 
fit heres substitutus. quam 
ob rem duo quodammodo sunt 



act as heir, the substitute is only 
admitted to a portion, and both 
take a moiety : if he neither for- 
mally declare nor act as heir, he 
is entirely excluded, and the sub- 
stitute succeeds to the whole in- 
heritance. 

178. It was the opinion of 
Sabinus that, as long as a term 
for formally declaring and thereby 
becoming heir subsists, a person 
in a higher grade does not let in 
the substitute, even if he inform- 
ally act as heir, and that only after 
the expiration of the term is the 
substitute admitted instead of the 
person instituted, who has been 
acting as heir. But the other 
school held that, even pending the 
allotted term, informal acts of 
heirship let in the substitute and 
bar the prior heir from reverting 
to his right of formal declara- 
tion. 

179. To children below the 
age of puberty in the power of 
the testator, not only can such a 
substitute as we have described 
be appointed, that is, one who 
shall take the inheritance on their 
failure to inherit, but also one 
who, if after inheriting they die 
before attaining the age of puberty, 
shall be their heir ; which may 
be done in the following terms : 
' Be my son Titius my heir, and 
if my son does not become my 
heir, or after becoming my heir 
die before becoming his own 
guardian, [that is before attaining 
the age of puberty], then be Seius 
the heir.' 

1 80. In which case, if the son 
fail to inherit, the substitute is 
the heir of the testator, but if the 
son die after inheriting and with- 
out attaining the age of puberty, 
the substitute is heir to the son. 
Thus there are two wills, so to 



220 SVCCESSIO PER VNIVERSITATEM [n. 174-184. 



testamenta, aliud patris, aliud 
tilii, tamquam si ipse filius sibi 
heredem instituisset ; aut certe 
unum est testamentum duarum 
hereditatum. Inst. 1. c. 

181. Ceterum ne post obi- 
tumparentispericuloinsidiarum 
subiectus uideatur pupillus, in 
usu est uulgarem quidem sub- 
stitutionem palam facere, id est 
eo loco quo pupillum heredem 
instituimus ; (nam) uulgaris 
substitutio ita uocat ad heredi* 
tatem Bubstitutum, si onlnino 
pupillus heres non extiterit ; 
quod accidit cum uiuo parente 
moritur, quo casu nullum sub- 
stituti maleficium suspicari pos- 
sumus, cum scilicet uiuo testa- 
tore omnia quae in testamento 
scripta sint ignorentur. illam 
autemsubstitutionem per quam, 
etiamsi heres extiterit pupillus 
et intra pubertatem decesserit, 
substitutum uocamus.'separatim 
in inferioribus tabiilis scribi- 
mus, easque tabulas proprio 
lino propriaque cera consigna- 
mus, et in prioribus tabulis 
cauemus, ne inferiores tabulae 
uiuo filio et adhuc inpubere 
aperiantur. sed longe utius 
est utrumque genus substitu- 
tionis [separatim] in inferioribus 
tabulis consignari, quod si ita 
[consignatae uel] separatae 
fuerint substitutiones, ut dixi- 
mus, ex priore potest intellegi 
in altera [alter] quoque idem 
esse substitutus. Inst. 2, 16, 3. 

182. Non solum autem 
heredibus institutis inpuberibus 
liberis ita substituere possumus, 
ut si ante pubertatem mortui 
fuerint, sit is heres quern nos 
uoluerimus, sed etiam exhere- 
datis. itaque eo casu si quid 
pupillo ex hereditatibus lega- 



speak, the father's and the son's, 
just as if the son himself had 
instituted an heir ; or at any rate 
there is one will dealing with 
two inheritances. 

181. However, to save the 
ward from the danger of foul play 
after the death of the parent, it 
is common for the ordinary sub- 
stitution to be made openly, that 
is, in the clause wherein the ward 
is instituted, for as the ordinary 
substitution only calls a man to 
the succession in case of the ward 
altogether failing to inherit, and 
this can only occur by his death 
in the lifetime of his parent, the 
substitute in this case is open to 
no suspicion of crime, because 
while the testator is alive the 
contents of the will are a secret. 
But the substitution, wherein a 
man is named heir after the suc- 
cession and death of the ward 
before reaching the age of puberty, 
is written separately on later 
tablets, tied with their own cords 
and sealed with their own wax, 
and it is prohibited in the prior 
tablets that the will should be 
opened in the lifetime of the 
son before he attains the age of 
puberty. Indeed it is far safer 
that both kinds of substitution 
should be sealed up separately in 
two subsequent tablets, for if the 
ordinary substitution is contained 
in the first tablets it is easy to 
conjecture that the same substi- 
tute is appointed in the second. 



182. Not only when we ap- 
point children under the age of 
puberty our heirs can we make 
such a substitution that if they 
die before puberty the substitute 
is their heir, but we can do it 
even when we disinherit them, 
so that in case the ward should 



ii. 174-184.] DE PVPILLARI SVBSTITVTIONE 221 

tisue aut donationibus propin- acquire anything either by heir- 
quorum adquisitum fuerit, id ship, legacies, or by gifts of his 
omne ad substitutum pertinet. relatives, all will belong to the 
Inst. 2, 16, 4. substitute. 

183. Quaecumque diximus 18 3. What has been said of 

de substitutione inpuberum substitution to children below the 

liberorum uel heredum institu- age of puberty, whether appointed 

torumuelexheredatorum, eadem heirs or disinherited, is true of 

etiam de postumis intellegemus. substitution to afterborn children. 
Inst. 1. c. 

184. Extraneo oiero heredi 184. To a stranger instituted 

institute ita substituere non heir we cannot appoint a sub- 

possumus, ut si heres exfciterit stitute who, if the stranger in- 

et intra aliquod tempus deces- herit and die within a certain 

sent, alius ei heres sit ; sed hoc time, is .to be his heir ; but we 

solum nobis permissum est, ut have onl Y power to bind him 

eum per fideicommissum obli- b Y a trust to convey the inheri- 

gemus, ut hereditatem nostram ^ance to another, in part or in 

totam uel (pro) parte restituat ; wh le > a , ^ght which shall be 

quod ius quale sit, sub ' loco S^?1 m ^^ P 
trademus. Inst. 2, 16, 9. 

177. It will be observed that this rule deviates from the principle 
laid down in 166. A constitution of Marcus Aurelius changing 
the law further in the same direction, and mentioned by TJlpian 
(Sed postea divus Marcus constituit, ut et pro herede gerendo ex 
asse fiat heres, 22, 34. 'Subsequently Marcus Aurelius enacted that 
acts of heirship would make him [the person instituted, in the case 
of cretio imperfecta] exclusive heir '), was clearly not enacted when 
this paragraph wa.s written by Gaius, and furnishes an indication 
of the date at which this book of his Institutions was published. 
Marcus Aurelius was sole emperor A. D. 169-176. 

179. Cicero frequently mentions a great case in which the 
question arose whether a vulgaris substitutio may be implied from 
a pupillaris substitutio. The centumviral court decided that the 
intention rather than the words of the testator should prevail, and 
that the heir appointed to succeed the son in case the son died 
before puberty should be deemed appointed to succeed the testator 
in case no son was born : Malim mini L. Crassi unam pro M'. Curio 
dictionem quam castellanos triumphos duos, Brutus 73, 'I would 
rather have made the single speech of Lucius Crassus for Manius 
Curius than have had two triumphs for the capture of fortresses.' 
The other passages are worth referring to De Orat. 1, 39, 57 ; 2, 6, 32 ; 
Brutus, 39, 52; Pro Caecina, 18, 53; Topica, 10, 44. Marcus 
Aurelius enacted that in every case pupillaris substitutio should be 
implied in vulgaris substitute and vice versa, unless the contrary 
intention was expressed, Dig. 28, 6, 4. 



222 SVCCESSIO PER VNIVERSITATEM [n. 185-190. 



184. That is to say, we cannot by the ordinary rules of law limit 
an inheritance so as to make it subject to a resolutive condition or 
determinable at a future time. All we can do is to direct the heir 
by way of trust (fidei commissum) to reconvey the inheritance to 
some one at a future time or on the happening of some future event. 
Hereditas itself, strictly speaking, is indelible (semel heres semper 
heres). Regula est juris civilis qua constitutum est hereditatem 
adimi non posse, Dig. 28, 2, 13, 1. Of. 246-257, comm. 

DE HEREDIBVS INSTITVENDIS. 



185. Sicut autem liberi 
homines, ita et serui, tarn nostri 
quam alieni, heredes scribi pos- 
sunt. 

186. Sed noster seruus 
simul et liber et heres esse 
iuberi debet, id est hoc modo 

STICHVS SEKVVS MEVS LIBER 
HERESQVE ESTO, uel HERES 
LIBERQVE ESTO. 

187. Nam si sine libertate 
heres institutue sit, etiamsi 
postea manumissus fuerit a 
domino, heres esse non potest, 
quia institutio in persona eius 
non const^it ; ideoque licet 
alienatus sit, non potest iussu 
domini noui cernere heredi- 
tatem. 

188. Cum libertate uero 
heres institutus siquidem in 
eaofem causa durauerit, fit ex 
testamento li&er et inde neces- 
sarius heres. si uero ab ipso 
testatore manumissus fuerit, suo 
arbitrio hereditatem adire po- 
test. quodsi alienatus sit, iussu 
noui doming adire hereditatem 
debet, qua ratione per eum 
dominus fit heres ; nam ipse 
neque heres neque liber esse 
potest. Inst. 2, 14, 1. 

189. Alienus quoque seruus 
heres institutus si in eadem 
causa durauerit, iussu domini 
hereditatem adire debet; si uero 
alienatus ab eo fuerit aut uiuo 
testatore aut post mortem eius, 



185. Not only freemen but 
slaves, whether belonging to the 
testator or to another person, may 
be instituted heirs. 

186. A slave belonging to the 
testator must be simultaneously 
instituted and enfranchised in the 
following manner: 'Stichus, my 
slave, be free and be my heir ;* or, 
' Be my heir and be free.' 

1 87. If he is not enfranchised 
at the same time that he is insti- 
tuted, no subsequent manumis- 
sion by his owner enables him to 
take the succession, because the 
institution is originally void, and 
even if aliened he cannot formally 
declare his acceptance by the order 
of the new master. 

188. When a slave is simul- 
taneously instituted and enfran- 
chised, if he continue in the same 
condition, the will converts him 
into a freeman and a necessary 
heir : if the testator himself manu- 
mits him in his lifetime, he is able 
to use his own discretion about 
acceptance : if he is aliened he 
must have the order of his new 
master to accept, and then his 
master through him becomes 
heir, the alienated slave himself 
becoming neither heir nor free. 

189. When another person's 
slave is instituted heir, if he con- 
tinue in the same position, he 
must have the order of his master 
to accept the succession; if aliened 
by him in the lifetime of the tes^ 



ii. 185-190.] DE HEREDIBVS INSTITVENDIS 223 

antequam cernat, debet iussu tator, or after his death before 

noui domini cernere ; si uero formal acceptance, he must have 

manumissus est, suo arbitrio the order of the new master to be 

adire hereditatem potestf. able to accept : if manumitted be- 

Inst. 1. C. ^ ore acceptance, he is able to follow 

his own judgement as to accepting. 

190. Siautemseruusaliemis 190. When a slave of another 

heres institutus est uulgari ere- person is instituted heir with the 

tione data, ita intellegitui dies ordinary term of cretio, the term 

cretionis cedere, si ipse seruus only begins to run from the time 

scierit se heredem institfutum when the slave has notice of his 

esse, nee ullum inpedimentum appointment, and is not prevented 

sit, quominus certiorem domi- in an y wa Y from informing the 

num faceret, ut illius iussu master S P * hat * e mav at his 

cernere possit. order make formal acce P tan <*. 

187. This rule was abolished by Justinian, who enacted that 
the enfranchisement of the testator's slave, though unexpressed, 
should always be implied in his institution as heir. Cod. 6, 27, 5 ; 
Inst. 1, 6, 2. 

188. Justinian explains why the slave lost his liberty : De- 
stitisse enim a libertatis datione videtur dominus qui eum alienavit, 
Inst. 2, 14, 1. 'A revocation of the bequest of liberty is inferred 
from the fact of his alienation.' If we ask why the implied inten- 
tion that suffices to revoke the enfranchisement does not suffice to 
revoke the institution, the answer is, that a bequest can be revoked 
by any act clearly implying an intention to revoke, whereas an insti- 
tution requires a more solemn revocation, by execution of a later 
will, or some other means, 147151, comm. 

189. What was the motive of instituting as heir the slave of 
another person ? Such a disposition could not be dictated by kindness 
to the slave, for he would probably gain nothing by his institution ; 
but was a device adopted for two purposes, (i) for facilitating the 
conversion of a succession into money, and (2) for securing an institu- 
tion against failure. 

(i) By such a disposition the testator gave the proprietor of the 
slave, whose benefit was intended, the option of either becoming 
actual heir, or of doing, what he could not otherwise readily do, i. e. 
of receiving the net value, or a large portion of the net value, of 
the succession, without incurring the expense of the annexed sacred 
rites (sacra) and the burden of administration, by practically selling 
the succession for the highest price he could get to any one who was 
willing to incur these expenses and troubles as a matter of specula- 
tion. To effect this, he had only to sell the slave at a price enhanced 
by his character of institutus. The slave thereupon, making aditio 
of the inheritance in obedience to an order of the purchaser, vested 



224 SVCCESSIO PER VNIVERSITATEM [n. 185-190. 

the inheritance in the purchaser. If the former proprietor was 
reluctant to part with his slave, he had only to bargain for his 
reconveyance by a fiducia or condition annexed to the sale or manci- 
patio. Reddendus (or in the time of Gaius it might have been a case 
of mancipatio cum fiducia) st servus ea conditione ut, cum jussu 
ejus adierit, rursum retradatur. By this branch of speculation the 
instituted slave might pass through many hands before the succession 
vested, Dig. 37, 11, 2, 9. 

(2) A second object gained by the institution of another person's 
slave was the transmission of an inheritance to the heirs of such 
person, If the heir instituted died in the lifetime of the testator, 
the institution failed, and the failure could not be prevented by the 
substitution (secondary institution) of the heir of the person instituted, 
for such heir would be a persona incerta, 242. The difficulty was 
met by instituting a slave, who on the death of his master, the 
virtual heir, would become the slave of the master's heir, and acquire 
for him the succession of the testator. TQ guard against the con- 
tingency of the death of the slave in the lifetime of the testator, 
several slaves might be instituted by way of substitution. Ihering, 
56. An inheritance delated to a slave is said to be ambulatory : 
Ambulat cum dominio bonorum possessio, 1. c. (In a similar way 
we might say : ambulat cum ca/pite noxa, 4 77.) 

190, Si ipse servus scierit se heredem institutum. The know- 
ledge of the slave was material ; for the purpose of acquisition, since 
the slave is regarded as if he were heir, though acquiring not for 
himself but for his master. Cf, Inst. 3, 17, 1 and 2. 

A slave instituted heir might be the property of several masters, 
who when he entered upon the inheritance would become co-heredes 
of it according to their respective shares in him. Inst. 2, 14, 3. In 
the same title of the Institutes, Justinian mentions that an heir 
might either be appointed to take the whole of an inheritance or to 
share it with other co-heirs in any proportions. We may briefly 
state the technical terms and rules of interpretation by which 
different shares were allotted. An inheritance was commonly re- 
garded as a pound (as) consisting of twelve ounces (unciae). The 
different fractions were thus denominated : uncia, a twelfth of an as, 
or an ounce ; sextans, a sixth of an as, or two ounces ; quadrans, 
a fourth of an as, or three ounces ; triens, a third of an as, or four 
ounces ; quincunx, five ounces ; semis, half an as, or six ounces ; 
septunx, seven ounces ; bes (bis triens), two thirds of an as, or eight 
ounces ; dodrans (deme quadrantem), an as minus a fourth, or nine 
ounces ; dextans (deme sextantem), an as minus a sixth, or ten 
ounces ; deunx (deme unciam), an as minus an ounce, or eleven 
ounces ; as, twelve ounces. 



II. 185-190.] DE HEREDIBVS INSTITVENDIS 225 

An heir instituted in twelve ounces (ex asse) took the whole : but 
it was a rule that no one could be partly testate and partly intestate, 
and therefore if an heir were instituted in a part (ex parte) and 
no other co-heir instituted, that part represented a pound, and the 
heir took the whole. So if the shares allotted to several co-heirs 
amounted to more than twelve ounces, then, if no other heir was 
appointed with an unexpressed share, the as was deemed to consist 
of more than twelve ounces, and each co-heir took a ratable part of 
the inheritance. If one heir were instituted in a part, say ex besse, 
and a co-heir were instituted for whom no part was expressed, then 
the co-heir would take the residue of the as, that is, would be deemed 
to be instituted ex triente. But if the parts expressed for certain 
heirs exhausted or exceeded the as and another heir or heirs were 
named without express shares, then the whole inheritance was sup- 
posed to consist of two asses (dupondius) and the expressed shares 
were reduced to so many ounces out of twenty-four, the heir or heirs 
with unexpressed parts taking the residue. Similarly, if necessary, 
the inheritance was supposed to consist of thirty-six ounces. 

If the institution of one co-heir lapsed, the shares of the remaining 
co-heirs were ratably augmented (accretio), just as, if originally less 
than twelve ounces had been distributed, the expressed shares of 
each would be ratably augmented so as to exhaust the inheritance. 

This rule, however, was modified by the leges caducariae, passed 
chiefly to discourage celibacy, namely the lex Julia de maritandis 
ordinibus, A. D. 4, and the lex Papia Poppaea, on marriage and suc- 
cession, A. D. 9, in which the provisions of the lex Julia were in- 
corporated, for which reason both laws are sometimes referred to as 
lex Julia et Papia. 

Caducum is a devise or bequest, valid at Civil law, but vacated by 
some particular law or statute, such as a legacy to a celibate or Latinus 
Junianus, in case the former fails within a hundred days to comply 
with the law [the Lex Papia], or the latter to acquire full citizen- 
ship ; or in case of the institution of a co-heir, or bequest to a legatee 
who dies or becomes an alien before the will is opened, Ulpian, 17, 1. 
[By the Civil law, unconditional devises and bequests vested (dies 
cedit) at the death of the testator (though still defeasible by the failure 
of the will) ; by the lex Papia Poppaea not before the opening of the 
will, thus making the chance of a lapse greater, but Justinian re-estab- 
lished the rule of Civil law.] Cf. Roby, Eoman Law, Bk. Ill, ch. x, B. 

The leges caducariae, which fixed the conditions of caducity, were 
aimed against the coelebs and the orbus. Cf. 1 1 1, 144, 286. Coelebs 
is defined to be an unmarried man between the age of twenty and sixty, 
or an unmarried woman between the age of twenty and fifty. Orbus 
is a man between fifty and sixty without children, natural or adoptive. 



226 DE LEGATIS [n. 191-223. 

An unmarried person could take nothing as heres extraneus 
or legatee ; an orbus could only take half of the devise or bequest 
intended for him. The inheritance or legacy thus lapsed was 
allotted by the leges caducariae in the first place, in the case 
of a legacy, to conjoint legatees of the same specific thing if the 
legatees had children ; in the second place to children or parents of 
the deceased who were instituted heirs in his will ; in the third place 
to heirs and other legatees having children ; and in last remainder to 
the treasury (aerarium), 206. Caracalla, A. D. 212-217, made them 
lapse immediately to the fiscus ; Hodie ex constitutione imperatoris 
Antonini omnia caduca fisco vindicantur, sed servato jure antique 
liberis et parentibus, Ulpian, 17, 2. But from the rules of caducity 
ascendants and descendants of the testator to the third degree were 
excepted both by the lex Papia and by the constitution of Caracalla. 
Constantine, A. D. 320, abolished the pains and penalties of celibacy 
and childlessness, Cod> 8, 57, and Justinian formally and finally 
abrogated the leges caducariae. 

By substitutions, or alternative institutions, testators were able to 
modify the course of accrual by Civil law (jus accrescendi), and, what 
perhaps was still more interesting, to escape from the operation 
of the laws of caducity, by which sometimes a whole inheritance 
might fall into the clutches of the treasury. 

191. Post haec uideamus de 191. Let us now examine 

legatis. quae pars iuris extra legacies, a kind of title which 

propositam quidem materiam seems foreign to the matter in 

uidetur; nam loquimur de his hand, for we are expounding titles 

iuris figuris quibus per uniuer- whereby aggregates of rights are 

sitatem res nobis adquiruntur ; acquired ; but we had at any rate 

sed cum omni modo de testa- to treat of wills and heirs ap- 

mentis deque heredibus qui Pomted by will, and it is natural 

* i-i i i- in close connexion therewith to 

testamento mstituuntur locuti congider ^ ieg Q m& [for 

sumus, non sine causa sequenti a l ^ &n cce of a w jm 

loco potent naec iuris materia 
tractari. Inst. 2, 20, pr. 

[DE LEGATIS.] 

192. Legatorum itaque 192. Legacies are of four 

genera sunt quattuor : aut enim kinds ; by vindication, by con- 

per uindicationem legamus aut demnation, by permission, by 

per damnationeni aut sinendi p reception* 
modo aut per praeceptionem. 

193. Per uindicationem hoc 193> A legacy by vindication 

modo legamus TITIO uerbi gratia i s m the following form: 'To 

HOMINEM STICHVM DO LEGO; sed Lucius Titius I give and bequeath, 

si alteruirura uerbum posi- say, my slave Stichus,' or only 



ii. 191-223.] LEGATORVM GENERA 



227 



turn sit, ueluti DO aut LEGO, 
aeque per uiTidicationem lega- 
tum est ; item, ut magis uisum, 
est, si ita legatum fuerit SVMITO, 
uel ita SIBI HABETO, uel ita CA- 
PITO, aeque per uindicationem 
legatum est. 

194. Ideo awtem per uindi- 
cationem legatum appellatur, 
quia post aditam hereditatem 
statim ex iure Quiritium res 
legatarii fit ; et si earn rem 
legatarius uel ab herede uel ab 
alio quocumque qui earn pos- 
sidet petat, uindicare debet, id 
est intendere suam rem ex iure 
Quiritium esse. 

195. In eo solo dissentiunt 
prudentes,quodSabinus quidem 
et Cassius ceterique nostri prae- 
ceptores quod ita legatum sit 
statim post aditam hereditatem 
putant fieri legatarii, etiamsi 
ignoret sibi legatum j esse [di- 
missum], serf posteaquam scierit 
et - - legajtum, proinde 

esse atque si legatum non esset ; 
Nerua uero et Proculus ceteri- 
qne illius scAolae auctores non 
aliter putant rem legatarii fieri, 
quam si uoluerit earn ad se 
pertinere. sed hodie ex diui 
Pii Antonini constitutione hoc 
magis iure uti iddemur quod 
Proculo placuit ; nam cum le- 
gatus fuisset Latinus per uin- 
dicationem coloniae, Deliberent, 
inquit, decuriones an ad se 
uelint pertinere, proinde ac si 
uni legatus esset. 



196. -"ae autem solae res per 
uindicationem legantur recte 
quae ex iure Quiritium ipsius 
testatoris sunt. sed eas quidem 
res quae pondere numero men- 



one word need be used as, 'I give 
or I bequeath ; ' and other terms 
such as : ' Let him take,' ' Let him 
have,' ' Let him seize,' equally 
confer a legacy by vindication ac- 
cording to the prevailing opinion. 

194. It is so called, because 
immediately on the acceptance of 
the inheritance the thing becomes 
the Quiritarian property of the 
legatee, and if he claims it from 
the heir or any other possessor, 
he ought to vindicate it, that is, 
claim by action that he is owner 
thereof by law of the Quirites. 

1 9 5. So far the two schools are 
agreed, the only point in dispute 
between them is this, that accord- 
ing to Sabinus and Cassius and the 
other authorities of my school, 
what is thus left becomes the pro- 
perty of the legatee immediately 
on the acceptance of the inherit- 
ance, even before he has notice of 
the leeacy, and on notice and re- 
pudiation by the legatee, the legacy 
is cancelled. While Nerva and 
Proculus and the jurists of that 
school make the passing of the 
property to the legatee depend on 
his accepting the legacy ; and now 
a constitution of the late emperor 
Pius Antoninus seems to have es- 
tablished the doctrine of Proculus 
as the rule, for in the case of a Lati- 
nus Junianus bequeathed by vindi- 
cation to a colony, the Emperor 
said, 'The decurions must deli- 
berate whether they wish to be- 
come owners as they would have 
to do if the bequest was to an in- 
dividual.' 

196. Only those things are 
properly bequeathed by vindica- 
tion which are the Quiritarian 
property of the testator ; things, 
however, estimated by weight, 



228 



DE LEGATIS 



[11. 191-223. 



sura constant placuit sufficere 
si mortis tempore sint ex iure 
Quiritium testatoris, ueluti ui- 
num oleum frumentum pecu- 
niam numeratam. ceteras res 
uero placuit utroque tempore 
testatoris ex iure Quiritium 
esse debere, id est et quo facere 
testamentum et quo moreretur ; 
alioquin inutile est legaturn. 

197. Sed sane hoc ita est 
iure ciuili. postea ueroauctore 
Nerone Caesare senatusconsul- 
tum factum est, quo cautum est, 
ut si earn rem quisque legauerit 
quae eius numquam fuerit, 
proinde utile sit legatum, atque 
si optimo iure relictum esset ; 
optimum autem ius est per 
damnationem legati, quo genere 
etiam aliena res legari potest, 
sicut inferius apparebit. 

198. Sed si quis rem suam 
legauerit, deinde post testa- 
mentum factum earn alienauerit, 
plerique putant non solum iure 
ciuili inutile esse legatum, sed 
nee ex senatusconsulto confir- 
mari. quod ideo dictum est, 
quia et si per damnationem 
aliquis rem suam legauerit eam- 
que postea alienauerit, plerique 
putant, licet ipso iure debeatur 
legatum, tamen legatarium pe- 
tentem posse per exceptionem 
doli mali repelli quasi contra 
uoluntatem defuncti petat. 

199. Illud constat, si duo- 
bus pluribusue per uindicatio- 
Jiem eadem res legata sit, siue 
coniunctim siue disiunctim, et 
omnes ueniant ad legatum, 
partes ad singulos pertinere et 
deficientis portionem collega- 
tario adcrescere. coniunctim 
autem ita legatur TITIO ET SEIO 

HOMINEM STICHVM DO LEGO; 



number, or measure, need only 
be the Quiritarian property of the 
testator at the time of his death, 
for instance, wine, oil, corn, ready- 
money : other things are required 
to be the testator's Quiritarian 
property at both periods, both at 
the time of his death and at the 
time of making his will, or the 
legacy is void. 

197. However, this is only 
the civil law. In later times, on 
the proposition of Nero, a senatus- 
consult was passed, providing that 
if a testator bequeathed a thing 
which never belonged to him, the 
bequest should be as valid as if it 
had been made in the most favour- 
able form ; the most favourable 
form being by condemnation, 
whereby the property of another 
person may be bequeathed, as will 
presently appear. 

198. If a man bequeath a 
thing belonging to him, and after- 
wards aliene it, most jurists hold 
that the bequest is not only 
avoided at civil law, but does not 
obtain validity by the senatu scon- 
suit, the ground of this opinion 
being that, even when a thing is 
bequeathed by condemnation and 
afterwards aliened, although the 
legacy is due ipso jure, a claim 
to it, as most jurists hold, may 
be repelled by the plea of fraud, 
as contravening the testator's in- 
tention. 



199. It is a settled rule, that 
if the same thing be bequeathed 
by vindication to two or more 
persons, whether jointly [in the 
same sentence] or severally [in 
different sentences], and all claim 
the legacy, each is only entitled 
to a ratable part, but a lapsed 
portion accrues to the co-legatees. 
A joint bequest is as follows : 



n. 191-223.1 LEGATORVM GENERA 

J 



229 



disiunctim ita L. TITIO HOMINEM 

STICHVM DO LEGO. SEIO EVNDEM 
HOMINEM DO LEGO. 



200. Ulud quaeritur, quod 
sub condi clone per uindica- 
tionem legatum est, pendente 
condicione cuius sit. nostri 
praeceptores heredis esse putant 
exemplo statuliberi, id est eius 
serui qui testamento sub aliqua 
condicione liber esse iussus est ; 
quern constat interect heredis 
seruum esse. sed diuersae scho- 
lae auctores putant nullius in- 
terim earn rem esse ; quod 
multo magis dicunt de eo quod 
[sine condicione] pure legatum 
est, antequam legatarius ad- 
mittat legatum. 

201. Per damnationem hoc 
modo legamus HERES MEVS 

STICHVM SERVVM MEVM DARE 

DAMNAS ESTO ; sed et si DATO 
scriptum fuerit, per damna- 
tionem legatum est. 

202. Eoque genere legati 
etiam aliena res legari potest, 
ita, ut heres red im ere (?'em) et 
praestare aut aestimationem 
eius dare debeat. 

203. Ea quoque res quae in 
rerum natura non est, si modo 
futura est, per damnationem 
legari potest, uelut FRVCTVS QVI 

IN ILLO FVNDO NATI ERYNT, aut 
QVOD EX ILL A ANCILLA NATVM 
ERIT. 

204. Quod autem ita lega- 
tum est, post aditam heredi- 
tatem, etiamsi pure legatum est, 
non ut per uindicationem lega- 
tum continuo legatario adquiri- 
tur, sed nihilo minus heredis 
est. et ideo legatarius in per- 
sonam agere debet, id est in- 



' To Titius and Seius I give and 
bequeath my slave Stichus ; ' a 
several bequest as follows : ' To 
Lucius Titius I give and bequeath 
my slave Stichus. To Seius I 
give and bequeath the same slave. ' 
200. When a condition is an- 
nexed to a bequest by vindication, 
it is a question who, pending the 
condition, is the owner: my school 
say, the heir, as in the case of the 
slave conditionally enfranchised 
by will, who is admittedly in the 
interim the property of the heir: 
the other school assert that there 
is no interim proprietor, and they 
insist still more strongly that this 
is so in the case of an uncon- 
ditional simple bequest before the 
acceptance by the legatee. 



201. A legacy by condemna- 
tion is in the following form : 
' Be my heir condemned to give 
my slave Stichus,' or simply, 'Let 
my heir give my slave Stichus.' 

202. By this form a testator 
may bequeath a thing belonging 
to another person, binding the 
heir to purchase and deliver the 
thing, or pay its value. 

203. A thing which does not 
exist provided that it will exist may 
be bequeathed by condemnation, 
as the future produce of such and 
such land, or the child to be born 
of such and such female slave. 

204. A bequest in this form, 
even though no condition is an- 
nexed, unlike a bequest by vindi- 
cation, is not forthwith on the 
acceptance of the inheritance the 
property of the legatee, but con- 
tinues the property of the heir ; 
hence the legatee must sue for it by 
personal action, that is, lay claim 



230 



DE LEGATIS 



[ii. 191-223. 



tendere heredem sibi dare opor- 
tere ; et turn heres, si (res) 
mancipi sit, mancipio dare aut 
in iure cedere possessionemque 
tradere debet; si nee mancipi 
sit, sufficit si tradiderit. nam 
si mancipi rem tantum tradi- 
derit nee niancipauerit, usuca- 
pione pleno iure fit legatarii ; 
conpletur autem usucapio, sicut 
alio quoque loco diximus, mobi- 
lium quidem rerum anno,earum 
uero quae solo tenentur biennio. 



205. Est et ilia differentia 
huius {et} per uindicationem 
legati, quod si eadem res duobus 
pluribusue per damnationem 
legata sit, siquidem coniunctim, 
plane singulis partes debentur 
sicut in illo {quod per} uindi- 
c&tionem legatum est, si uero 
disiunctim, singulis solid^m 
de&etur. ita fit, ut scilicet 
heres alteri rem, alteri aestima- 
tionem eius praestare debeat. 
et in coniuTictis deficientis 
portio non ad collegatarium 
pertinet, sed in hereditate re- 
maned. 

206. Quod autem diximus 
deficientis portionem in per 
damnationem quidern legato in 
hereditate retineri, in per uin- 
dicationem uero collegatario 
adcrescere, admonendi sumus 
ante legem Papiam hoc iure 
ciuili ita fuisse ; post legem 
uero Papiam deficientis portio 
caduca fit et ad eos pertinet 
qui in eo testamento liberos 
habent. 

207. Et quamuis prima 
causa sit in caducis uindicandis 
heredum liberos habentiurn, 
deinde si heredes liberos non 
habeant, legatariorum liberos 



that the heir is bound to convey 
it to him ; and in this case the 
heir, if the thing is mancipable, 
ought to convey it to him by man- 
cipation or to surrender it before 
a magistrate and deliver posses- 
sion of it ; if not mancipable, mere 
delivery of possession suffices : for 
if a mancipable thing is merely 
delivered without mancipation, 
the legatee must acquire plenary 
ownership by usucapion, and usu- 
capion, as before mentioned, in the 
case of movables requires a year's 
possession, in the case of landed 
property two years' possession. 

205. There is another differ- 
ence between bequest by vindica- 
tion and bequest by condemnation 
herein, that if the same thing is 
bequeathed to two or more by 
condemnation, if they are named 
jointly, each is entitled to a ratable 
part, as in legacy by vindication ; 
if severally, each is entitled to 
the whole, and the heir is bound 
to convey the specific thing to 
one, and the value to the other ; 
and in a joint bequest a lapsed 
portion does not accrue to the 
co-legatee, but belongs to the heir. 



206. The statement that a 
lapsed portion in legacy by con- 
demnation falls to the heir, and in 
legacy by vindication accrues to 
the co-legatee, be it observed, gives 
the rule of the civil law before 
the lex Papia ; but since the lex 
Papia, a lapsed portion becomes 
caducous, and belongs to the 
legatees who have children. 



207. And although the first 
title to a caducous legacy is that 
of heirs with children, and the 
second, if the heirs are childless, 
of legatees with children, yet the 



n. 191-223.] LEGATORVM GENERA 



231 



habentium, tamen ipsa lege 
Papia significatur, ut collega- 
tarius coniunctus, si liberos 
habeat, potior sit heredibus, 
etiamsi liberos habebunt. 

208. Sed plerisque placuit, 
quantum ad hoc ius quod lege 
Papia coniunctis constituitur, 
nihil interesse utrum per uindi- 
cationem an per damnationem 
legatum sit. 

209. Sinendi modo ita le- 

ganiUS HERES MEVS DAMNAS 
ESTO SINERE L. TITIVM HOMI- 
NEM STICHVM SVMERE SIBIQVE 
HABERE. 

210. Quod genus legati 
plus quidem habet (quam) per 
uindicationem legatum, minus 
autem quam per damna^onem. 
nam eo modo non solum suam 
rem testator utiliter legare po- 
test, sed etiam heredis sui ; cum 
alioquin per uindicationem nisi 
suam rem legare non potest, 
per damnationem autem cuius- 
libet extranei rem legare potest. 

211. Sed siquidem mortis 
testa toris tempore res uel ipsius 
testatoris sit uel heredis, plane 
utile legatum est, etiamsi testa- 
menti faciendi tempore neutrius 
fuerit. 

212. Quodsi post mortem 
testatoris ea res heredis esse 
coeperit, quaeritur an utile sit 
legatum. et plerique putant 
inutile esse. quid ergo est ? 
licet aliquis earn rem legauerit 
quae neque eius umquam fuerit 
neque postea heredis eius um- 
quam esse coeperit, ex sena- 
tusconsulto Neroniano proinde 
uidetur ac si per damnationem 
relicta esset. 

213. Sicut autem per dam- 



lex Papia itself declares that in 
a joint bequest a co-legatee with 
children is to be preferred to heirs 
even though they have children. 

208. And most jurists hold 
that, as to the rights which the 
lex Papia gives to joint legatees, 
it makes no difference whether 
the bequest is by vindication or 
by condemnation. 

209. A bequest by permission 
is in the following form : ' Be 
my heir condemned to permit 
Lucius Titius to take and to have 
to himself my slave Stichus.' 

210. A bequest in this form 
has a wider scope than one in the 
form of vindication, but less than 
one in the form of condemnation, 
for hereby not only can the tes- 
tator's property be effectively be- 
queathed, but also that of the 
heir, whereas by the form of vin- 
dication the testator can only be- 
queath his own property, and by 
the form of condemnation he can 
bequeath the property of any 
stranger. 

211. If at the time of the 
testator's death the thing thus be- 
queathed belong to the testator or 
the heir, the bequest is valid, even 
though at the time of making the 
will it belonged to neither. 

212. If it first belong to the 
heir after the death of the testator 
it is a question whether the bequest 
is valid, and it is most generally 
held to be invalid. However, even 
though a thing bequeathed never 
belonged to the testator or after 
his death became the property of 
the heir, by the senatusconsult of 
Nero all bequests are put on the 
same footing as a bequest by con- 
demnation. 

213. Justasathingbequeathed 



232 



DE LEGATIS 



[n. 191-223. 



nationem legata res non statim 
post aditam hereditatem lega- 
tarii efficitur, sed manet heredis 
eo usque, donee is [heres] tra- 
dendo uel mancipando uel in 
iure cedendo legatarii earn fe- 
cerit, ita et in sinendi modo 
legato iuris est; et ideo huius 
quoque legati nomine in per- 
sonam actio est QVIDQVID HE- 

KEDEM EX TESTAMENTO DARE 
FACEEE OPORTET. 

214. Sunt tamen qui pu- 
tant ex hoc legato non uideri 
obligatum heredem,utmancipet 
aut in iure cedat aut tradat, sed 
sufficere, ut legatarium rem 
sumere patiatur; quia nihil 
ultra ei testator imperauit,quam 
ut sinat, id est patiatur legata- 
rium rem sibi habere. 

215. Maior ilia dissensio 
in hoc legato inter uenit, si 
eandem rem duobus pluribusue 
disimictim legasti ; quidam 
putant utrisque solidam deberi, 
[sicutperuindicationem;] non- 
nulli occupantis esse meliorem 
condicionem aestimant, quia 
cum eo genere legati damnetur 
heres patientiam praestare, ut 
legatarius rem habeat, sequitur, 
ut si priori patientiam praesti- 
terit et is rem sumpserit, se- 
curus sit aduersus eum qui 
postea legatum petierit, quia 
neque habe rem, ut patiatur 
earn ab eo sumi, neque dolo 
malo fecit quominus earn rem 
haberet. 

216. Per praeceptionem 
hoc modo legamus L. TITIFS 

HOMINEM STICHVM PRAECIPITO. 

217. Sed nostri quidem 
praeceptores nulli alii eo modo 



by condemnation does not im- 
mediately on the acceptance of the 
inheritance belong to the legatee, 
but continues to belong to the 
heir until by delivery, or man- 
cipation, or surrender before the 
magistrate, he makes it the pro- 
perty of the legatee ; so it happens 
in bequest by permission, and 
accordingly this form of bequest 
is ground to support a personal 
action in the terms: 'Whatever 
the heir is bound by the will to 
convey or perform.' 

2 1 4. Although some hold that 
a bequest in this form does not 
bind the heir to mancipate or sur- 
render before the magistrate, or 
convey by tradition, but is satisfied 
by his permitting the legatee to 
take the thing, as the testator 
only enjoined the heir to let him 
have it. 

215. A more serious question 
arises in another point respecting 
this form of bequest : if the same 
thing is bequeathed severally to 
two or more, some hold that each 
is entitled to the whole, [as in be- 
quest by vindication (? condemna- 
tion) ;] others hold that the first 
occupant is alone entitled, be- 
cause as this form of bequest only 
condemns the heir to suffer the 
legatee to have the thing, as 
soon as the first occupant has been 
suffered to take it, the heir is safe 
against any subsequent claimant, 
as he neither has possession of 
the thing, so as to let it again 
be taken, nor has fraudulently 
parted with possession. 

2 1 6. A bequest by preception 
is in the following form : ' Let 
Lucius Titius take my slave 
Stichus by preception [before 
partition].' 

2 1 7. My school hold that such 
a bequest can only be made to one 



ii. 191-223.] LEGATOKVM GENERA 



233 



legari posse putant, nisi ei qui 
aliqua ex parte heres scriptus 
esset ; praecipere enim esse 
praecipuum sumere ; quod tan- 
turn in eius persona procedit 
qui aliqua ex parte heres insti- 
tutus est, quod is extra portio- 
nem hereditatis praecipuum 
legatum habiturus sit. 

218. Ideoque si extraneo 
legatum fuerit. inutile est lega- 
tum ; adeo ut Sabinus existima- 
uerit ne quidem ex (senatus)- 
consulto Neroniano posse con- 
ualescere : nam eo, inquit, se- 
natusconsulto ea tantum con- 
firmantur quae uerborum uitio 
iure ciuili non ualent, non quae 
propter ipsam personam lega- 
tarii non deberentur. sed 
luliano et Sexto placuit etiam 
hoc casu ex senatusconsulto 
confirmari ]egatum : nam ex 
uerbis etiam hoc casu accidere, 
ut iure ciuili inutile sit legatum, 
inde manifestum esse, quod 
eidem aliis uerbis recte legatur, 
ueluti per uindicationem, p&r 
damnationem, sinendi modo ; 
tune autem uitio personae lega- 
tum non ualere,cum ei legatum 
sit cui nullo modo legari possit, 
uelut peregrine cum quo testa- 
menti factio non sit ; quo plane 
casu senatusconsulto locus non 
est. 

219. Item nostri praecep- 
tores quod ita legatum est nulla 
(alia) ratione putant posse 
consequi eum cui ita fuerit 
legatum quara iudicio familiae 
erciscundae quod inter heredes 
de hereditate erciscunda, id est 
diuidunda, accipi solet ; officio 
enim iudicis id contineri, ut ei 
quod per praeceptionem lega- 
tum est adiudicetur. 

220. Vnde intellegimus 



of several co-heirs, because precep- 
tion, or previous taking, can only 
be attributed to a person who, 
taking as heir, over and above his 
portion as heir, and before partition 
of the inheritance between the co- 
heirs takes something as legatee. 



218. Therefore, if a stranger 
is given a legacy in this form it 
is void, and Sabinus held that 
the flaw is not remedied by the 
senatusconsult of Nero, for that 
senatuscoiisult only cures verbal 
flaws which make a bequest void 
at civil law, not personal dis- 
abilities of the legatee. Julian, 
however, and Sextus held that 
this bequest also is made valid 
by the senatusconsult, as only 
being avoided at civil law by a 
verbal informality ; as appears 
from the fact that the very same 
person might take by the bequest 
in another form, as in those 
by vindication, condemnation, or 
permission, whereas a personal 
defect in the legatee only inva- 
lidates the legacy, if the legatee 
is a person totally disqualified 
from taking any legacy whatever, 
e. g. an alien, who is incapable of 
taking anything under a will : 
in which case (they contend) the 
senatusconsult is clearly inap- 
plicable. 

219. Again, my school hold 
that in this form of bequest, the 
only action by which a legatee 
can recover is the action for 
partition of an inheritance, the 
judge's commission including a 
power of adjudicating a thing 
bequeathed by preception. 



220. From this it follows 



234 



DE LEGATIS 



[IT. 191-223. 



nihil aliud secundum nostrorum 
praeceptorum opinionem per 
praeceptionem legari posse, nisi 
quod testatoris sit ; nulla enim 
alia res quam hereditaria de- 
ducitur in hoc indicium, itaque 
si non suam rem eo modo testa- 
tor legauerit, iure quidem ciuili 
inutile erit legatum ; sed ex 
senatusconsulto confirmabitur. 
aliquo tamen casu etiam alie- 
nam rem (j^er) praeceptionem 
legari posse fatentur ; ueluti si 
quis earn rem legauerit, quam 
creditori fiduciae causa manci- 
pio dederit ; nam officio iudicis 
coheredes cogi posse existimant 
soluta pecunia luere earn rem, 
ut possit praecipere is cui ita 
legatum sit. 



221. Sed diuersae scholae 
auctores putant etiam extraneo 
per praeceptionem legari posse 
proinde ac si ita scribatur TI- 

TTVS HOMINEM STICHVM CAPITO, 

superuacuo adieeta PBAE syl- 
laba; ideoque per uindicatio- 
nem earn rem legatam uideri. 
quae sententia dicitur diui Ha- 
driani constitutions confirmata 
esse. 

222. Secundum hanc igitur 
opinionem si ea res ex iure 
Quiritium defuncti f uerit, potest 
a legatario uindicari, siue is 
unus ex heredibus sit siue ex- 
traneus ; quodsi in bonis tantum 
testatoris fuerit, extraneo qui- 
dem ex senatusconsulto utile 
erit legatum, heredi uero fa- 
miliae erciscundae iudicis officio 
praestabitur ; quodsi nullo iure 
fuerit testatoris, tarn heredi 
quam extraneo ex senatuscon- 
sulto utile erit. 



that, according to my school, 
nothing can be bequeathed by 
preception but what belongs to 
the testator, for nothing but what 
belongs to the inheritance forms 
the subject of this action. If, 
then, a thing that does not belong 
to the testator is bequeathed in 
this form, the bequest is void at 
civil law, but made valid by the 
senatusconsult. In one case they 
admit that another person's pro- 
perty may be bequeathed by pre- 
ception, for instance, if a man 
bequeath a thing which he has 
conveyed by fiduciary mancipa- 
tion to a creditor, as it is within 
the powers of the judge to order 
the co-heirs to redeem the pro- 
perty by payment of the mort- 
gage debt, and thus enable the 
legatee to exercise his right of 
preception. 

221. The other school hold 
that a stranger may take a be- 
quest in the form of preception 
just as if it were in the form : 
'Let Titius take my slave Stichus,' 
the addition [by preception, or, 
before partition] being mere sur- 
plusage, and the bequest being 
in effect in the form of vindica- 
tion ; and this opinion is said to 
be confirmed by a constitution of 
the late emperor Hadrian. 

222. According to this view, 
if the thing was the Quiritarian 
property of the defunct, it can be 
recovered in a vindicatio by the 
legatee, whether an heir or a 
stranger, but if it was only the 
bonitarian property of the tes- 
tator, a stranger will recover the 
bequest under the senatusconsult, 
an heir by the authority of the 
judge in an action for partition of 
inheritance. But if it was in no 
sense the property of the testator, 
either an heir or a stranger may re- 
cover it under the senatusconsult. 



ii. 191-223.] LEGATORVM GENERA 235 

223. Sine tamen heredibus 223. Whether they are heirs, 

secundum nostrorum opinio- according to my school, or 

nem, siue etiam extraneis se- strangers, according to the other, 

cundum illorum opinionem, if two or niore legatees have the 

duobus pluribusue eadem res same thin S bequeathed to them 

coniunctim aut disiunctim le- J ointl y or severally, each legatee 

gata fuerit,singuli partes habere ! s onl y entitled to a ratable P or ' 

debent. tlon ' 

194, 19^ Justinian seems to accept the Sabinian view that an 
unconditional legacy is acquired by the legatee immediately upon 
the heir's entrance on the inheritance, without his assent or even 
his knowledge, though he may subsequently reject it : in the latter 
case the effect is the same as if the right had never been acquired. 
So also Justinian clearly takes the Sabinian view on the question 
of interim ownership mentioned in 200. Cf. Dig. 8, 6, 19, 1. 
The testamenti factio passiva of municipalities, that is, their capacity 
as juristic persons to be made heirs or legatees, has already been 
noticed, 1 197-200, comm. 238, comm. 

196, 197. Cf. Si ea res, quae non fuit utroque tempore testatoris 
ex jure Quiritium, per vindicationem legata sit, licet jure civili non 
valeat legatum tamen senatusconsulto Neroniano firmatur quo cautum 
est ut quod minus pactis (aptis ?) verbis legatum est perinde sit ac 
si optimo jure legatum esset : optimum autem jus legati per damna- 
tionem est, Ulpian, 24, 11 a. 

By this senatusconsult of the Emperor Nero the four forms of 
legacy are not entirely abolished, but the importance of their distinc- 
tions is very much diminished. A legacy, by whatever form be- 
queathed, is henceforth always recoverable, provided it could have been 
effectively bequeathed in any form. As Sc. Neronianum made legatum 
per vindicationem transformable into legatum per damnationem, it 
made legatum per praeceptionem a species of Vindicatio, similarly 
transformable, and capable, therefore, of conferring res aliena as 
well as res testatoris not only on heres but also on non-heres. A 
fortiori it made legatum sinendi modo, a species of legatum per 
damnationem, capable of bequeathing res aliena. 

Subsequently a constitution of Constantine, Constantius, and 
Constans, A. D. 339, which, as we have already seen, abolished the 
necessity of formal terms in instituting an heir, dispensed with 
them also in the remaining testamentary dispositions : Et in postre- 
mis ergo judiciis ordinandis amota erit sollennium sermonum neces- 
sitas, Cod. 6, 23, 15, 2. In legatis vel fidei commissis verborum 
necessaria non sit observantia, ita ut nihil prorsus intersit, quis talem 
voluntatem verborum casus exceperit aut quis loquendi usus effu- 
derit, Cod. 6, 37, 21 : apparently a part of the same constitution. 



236 DE LEGATIS [n. 191-223. 

Three years afterwards, a constitution of Constantius and Con- 
stans abolished all legal formulas in the following terms : Juris 
formulae, aucupatione syllabarum insidiantes, cunctorum actibus 
penitus amputentur, Cod. 2, 57, 1. 'Legal formulas, with snares 
in every syllable to make them treacherous, in every occasion are 
to be utterly abolished.' 

Finally, Justinian enacted ut omnibus legatis una sit natura, 
Inst. 2, 20, 2, that all bequests should be of one nature ; and 
allowed them to be recovered by personal action or by real action also, 
at the option of the legatee, if ownership or jus in re in a specific 
thing was directly bequeathed to them ; for some subjects are essen- 
tially incapable of recovery by real action ; e. g. if a determinate 
quantity of anything estimated by number, measure, or weight, were 
bequeathed by a testator who had none in his possession at the time 
of his death, 196, the heir would be bound to procure and convey 
it or its value to the legatee, 202, but there would be no specific 
thing in existence which the legatee could recover by real action. 

199. Co-legatees per vindicationem would be each entitled to the 
whole except for the concurrence of the other co-legatees. Ac- 
cordingly, if one fails the others benefit by Accretio, Dig. 32, 80. 
Co-legatees per damnationem, if conjunctim, are never entitled to more 
than a ratable portion, and failure of one benefits the heir : but 
co-legatees of this kind, if disjunctim, are entitled to as many wholes 
as there are co-legatees, 205. Co-legatees, if sinendi modo, were 
a class of co-legatees per damnationem, but if the bequest was dis- 
junctim, and one or more failed to take, only the first occupant was 
entitled, 215. 

207. The loss of the legacies, which they otherwise would have 
acquired under the lex Papia, was one of the penalties whereby 
the legislator endeavoured to deter heirs and legatees from under- 
taking secret trusts (fideicommissum taciturn) contrived for the 
purpose of evading some disqualification. In fraudem juris fidem 
accommodat, qui vel id quod relinquitur vel aliud tacite promittit 
restituturum se personae quae legibus ex testamento capere pro- 
hibetur, sive chirographum eo nomine dederit, sive nuda polli- 
citatione repromiserit, Dig. 34, 9, 10, pr. (from a treatise of Gaius 
on the lex Julia et Papia). In England secret trusts one of the 
causes which led to the passing of the statute of Uses and Trusts. 
At Kome secret trusts, tacita fideicommissa (on which Gaius wrote 
a treatise, Dig. 34, 9, 23), were discouraged by being made one of the 
cases of Ereption for un worthiness, 151, comm. Si quis in fraudem 
tacitam fidem accommodaverit, ut non capienti fideicommissum resti- 
tuat, nee quadrantem eum deducere senatus censuit, nee caducum 
vindicare ex eo testamento si liberos habeat, Ulpian, 25, 17. 'An heir 



ii. 224-228.] AD LEGEM FALCIDIAM 



237 



who lends his assistance to the evasion of the law by the acceptance 
of a secret trust in favour of a disqualified beneficiary loses by decree 
of the senate his right under the lex Falcidia to retain one fourth 
of his inheritance, and to claim the caducous legacies, to which by 
the lex Papia he would have been entitled as a father of children.' 

215. A passage in the Digest, 33, 2, 14, makes this depend on 
the intention of the testator. The words per vindicationem seem 
to have been introduced into the MS. by mistake for per damna- 
tionem, cf. 199, 205. 



[AD LEGEM 

224. Sed oHm quidem lice- 
bat totum patrimonium legatis 
atque libertatibus erogare nee 
quicquam heredi relinquere 
praeterquam inane nomen here- 
dis ; idque lex xn tabularum 
permittere uidebatur, qua caue- 
tur, ut quod quisque de re sua 
testatus esset, id ratum habe- 
retur, his uerbis VTI LEGASSIT 
SVAE EEJ, ITA ivs ESTO. quare 
qui script! heredes erant, ab 
hereditate se abstinebant, et 
idcirco plerique intestati morie- 
bantur. Inst. 2, 22, pr. 

225. Itaque lata est lex 
Furia, qua, exceptis personis 
quibusdam, ceteris plus mille 
assibus legatorum nomine mor- 
tisue causa capere permissum 
non est. sed et haec lex non 
perfecit quod uoluit ; qui enim 
uerbi gratia quinque milium 
aeris patrimonium habebat, po- 
terat quinque hominibus singu- 
lis millenos asses legando totum 
patrimonium erogare. 

Inst. 1. c. 

226. Ideo postea lata est 
lex Voconia, qua cautum est, 
ne cui plus legatorum nomine 
mortisue causa capere liceret 
quam heredes capereni. ex qua 
lege plane quidem aliquid uti- 
que heredes habere uidebantur ; 
sed tamen fere uitium simile 



FALCIDIAM.] 

224. By the ancient law a tes- 
tator might exhaust his whole es- 
tate by bequests and enfranchise- 
ments, and leave nothing to the 
heir but an empty title ; and 
this privilege seemed granted by 
the Twelve Tables, which con- 
cede an unlimited power of tes- 
tamentary disposition, in these 
terms : ' As a man's last bequests 
respecting his property are, so 
let it be law : ' hence the persons 
who were appointed heirs de- 
clined to accept the inheritance, 
and people commonly died intes- 
tate. 

225. This led to the enact- 
ment of the lex Furia, whereby, 
excepting certain specified classes, 
a thousand asses was made the 
maximum that a legatee or donee 
in contemplation of death was 
permitted to take. This law, 
however, failed to accomplish its 
purpose, for a testator with an 
estate of, say, five thousand asses, 
might leave to five legatees a 
thousand asses apiece, and strip 
the heir of the whole. 

226. This occasioned the en- 
actment of the lex Voconia, which 
provided that no legatee or other 
person taking by reason of death 
should take more than the heirs 
took. By this law, some portion 
at all events was secured to the 
heir, but, like the former, it could 



238 DE LEGATIS [n. 224-228. 

nascebaiur ; nam in multas be defeated, for the multitude of 

legatariorum personas distri- legatees among whom a man could 

buto patrimonio poterat {testa- distribute his estate might leave 

tor} adeo heredi minimum re- so nttle to tne beir as to make 

linquere, ut non expediretheredi {i not worth his while to under- 

huius lucri gratia totius heredi- take the burden of the whole 

tatis onera sustinere. inheritance. 
Inst. 1. c. 

227. Lata est itaque lex 227. At last, the lex Falcidia 
Falcidia, qua cautum est, ne was enacted, prohibiting the be- 
plus ei legare liceat quam do- quest of more than three fourths 
draTitem. itaque necesse est, of an estate, in other words, se- 
nt heres quartam partein here- curing for the heir one fourth of 
ditatis habeat. et hoc nunc the inheritance, and this is the 
iure utimur. Inst. 1. c. rule of law now in force - 

228. In libertatibus quo- 228. The enfranchisement of 

que dandis nimiam licentiam slaves was likewise kept within 

conpescuit lex Fufia Caninia, limits by the lex Fufia Caninia, 

sicut in primo commentario as mentioned in the first volume 

rettulimus. of these Institutions. 1 42-46. 

224. A slightly different form of this celebrated ordinance is 
given by the Auctor ad Herennium : Paterfamilias uti super familia 
pecuniave sua legaverit ita jus esto, 1, 13, 23; also Cic. de Invent. 
2, 50, 148. 

225. The lex Furia testamentaria, which is referred to by Cicero, 
although it imposed on the legatee who took more than a thousand 
asses a penalty of four times the amount of the excess, which was re- 
coverable by manus injectio pura, 4 23, yet is instanced byUlpian(l, 2) 
as a minus quam perfecta lex, because, though it imposed a penalty on 
the legatee, it did not invalidate the prohibited bequest. In a minus 
quam perfecta lex the legislator, instead of declaring invalid the dis- 
position that he wished to discourage, or conferring on the person 
burdened by such disposition a counter right (exceptio) whereby he 
might defeat the claim of the person who sought to enforce such dis- 
position, merely imposed on the creditor under such a disposition a 
penalty if he either enforced his claim by suit or if he even accepted 
voluntary payment from the person who stood in the relation of 
debtor. Minus quam perfecta lex est quae vetat aliquid fieri et si 
factum sit non rescindit sed poenam injungit ei qui contra legem 
fecit : qualis est lex Furia testamentaria quae plus quam mille assium 
legatum mortisve causa prohibet capere praeter exceptas personas, 
et adversus eum qui plus ceperit quadrupli poenam constituit, 
Ulpian, 1, 2. So the lex Furia de sponsu, 3 121, which perhaps 
was another clause of the enactment which contained the lex Furia 
testamentaria, imposed a penalty on the creditor who exacted more 



ii. 224-228.] AD LEGEM FALCIDIAM 239 

than a ratable portion of a guaranteed debt from a single sponsor, 
4 22. By the lex Falcidia, 40 B. c., on the contrary, a lex perfecta 
which superseded the lex Furia testamentaria, a legacy was abso- 
lutely null and void (ipso jure) beyond a certain extent and the 
heres as debtor could not be forced to pay more than the sum pre- 
scribed, a rule which may be expressed by the maxim, legata ipso 
jure minuuntur : and the Epistola Hadriani, 3 121, a law passed for 
the protection of the kind of surety which superseded sponsores and 
fidepromissores, conferred a counter right called Beneficium divi- 
sionis on the fidejussor or surety who was sued for more than a 
ratable portion of the debt, enabling him to defeat the valid claim 
of the creditor by the exceptio divisionis. Under the lex Furia 
testamentaria the heres could neither defend himself by alleging 
the absolute nullity of the excessive bequest (ipso jure) nor by 
pleading an opposing right (exceptio) whereby the valid claim of 
the legatee might be counteracted. 4 115, comm. 

Assuming that the lex Furia de sponsu and the lex Furia testa- 
mentaria were two clauses of the same enactment, the lex Furia 
may have had the singular destiny of having provoked by antagonism 
the introduction of two new institutions in Roman jurisprudence. 
The desire of evading its penalties relating to sponsio may have been 
a cause of fidejussio ; and the desire of evading its penalties relating 
to legata a stimulus to the invention of fideicommissa. 

The exceptae personae of the lex Furia testamentaria were the 
cognates of that ascendant to the sixth degree with sobrino natus, 
or second cousin of the seventh, Ulpian, 28, 7; Vat. Fragm. 301. 

226. The lex Voconia, supposed to have been passed by the 
tribune Quintus Voconius Saxa, 169 B. c., contained a provision to 
the effect that a woman could not be instituted heiress to a classicus, 
or person scheduled in the first class of the census, i. e. registered 
as owner of property to the amount of a hundred thousand sesterces 
and upward, 274 ; and by another provision of this enactment, 
mentioned in the text, it was provided the utmost amount that any 
one, male or female, could take as legatee, should be limited to half 
the value of the inheritance. This disposition of the lex Voconia was 
probably the origin of the form of legacy called partitio, 254, whereby 
a testator bequeathed as legacy an aliquot part of his inheritance. 
A rich testator with one heres would leave to a woman by way of 
legacy one half, with two heredes one third, of the inheritance, and 
so on, if he wished to leave her the utmost the law permitted. 

The result of the lex Voconia, coupled with the rules of preter- 
mission and intestacy, is the following : a daughter might take half 
her father's estate either as legatee (partiaria, 254), or, if preter- 
mitted (praeterita), as heiress, 124. If she was filia unica, she 






240 DE LEGATIS [n. 229-245. 

might take the whole estate as heiress, if her father died intestate : 
but Eomans were very averse to dying intestate ; and in this event 
she would not have had a testamentary guardian and so have been 
much hampered in the free disposition of her property, at least till 
the agnatic guardianship of women was abolished. 

227. The terms of the principal clause of the lex Falcidia, passed 
B. c. 40, are given in the Digest 35, 2, 1, pr. 'Every Roman citizen 
who, after this law passes, makes a will, is entitled and empowered to 
give and bequeath whatever money he likes to any Roman citizen in 
accordance with the laws of Rome, provided that such bequest leave 
at least one fourth of the inheritance to be taken under that will by 
the heirs. Such bequests the legatees are permitted to accept without 
penalty (sine fraude) (an allusion to the penalty of the lex Furia), and 
the heir therewith charged is bound to pay.' 

The words limiting the operation of the lex Falcidia to wills 
executed after the date of its enactment take this law out of the 
general rule respecting the temporal limits of the application of 
laws in the event of legislative innovations. The general rule for 
determining, on any change of the law, whether a given right is to 
be governed by the older or the newer law, is the principle that 
a new law should have no retroactive influence on vested rights 
(acquired rights), but should govern all that have yet to vest. Now 
under a will no one has vested rights, whatever his expectations, 
before the death of the testator. This date fixes the possible opening 
of the succession (vocatio heredis, delatio hereditatis), the vesting of 
the rights of the heir and also of the legatee (legatorum dies cedens, 
244), unless this is postponed till a later date, and determines the 
law by which they are governed. By the general rule, then, the 
lex Falcidia would have applied to all wills whose testators died after 
its enactment, at whatever date they were executed. The legislator 
wished to disarm the opposition of those who had made their wills 
by excepting them from its operation ; though in many cases the 
lex Falcidia would be less rigorous than the lex Furia and lex 
Voconia, which it superseded, and testators would be glad to revise 
their testamentary dispositions. Savigny, System, 394. 

Some illustrations of the joint operation of the lex Falcidia and 
the Sc. Pegasianum, or rather the Sc. Trebellianum as modified by 
Justinian, will be presently given. 259, comm. 

[DE INVTILITER EELICTIS LEQATIS.] 

229. Ante heredis institu- 229. A legacy bequeathed be- 

tionem mutiliter legatur, sci- fore an heir is instituted is void, 

licet quia testamenta uim ex because a will derives its opera- 

institutione heredis accipiunt, tion from the institution of an 



ii. 229-245.] DE POENAE CAVSA LEGATIS 



241 



et ob id uelut caput et funda- 
mentum intellegitur totius te- 
stamenti heredis institutio. 

Inst. 2, 20, 34. 

230. Pari ratione nee li- 
bertas ante heredis institutio- 
nem dari potest. Inst, 1. c. 

231. Nostri praeceptores 
nee tutorem eo loco dari posse 
existiman ; sed Labeo et Pro- 
culus tutorem posse dari, quod 
nibil ex hereditate erogatur 
tutoris datione. 

~$Ti32. Post mortem quoque 
heredis inutiliter legatur, id est 
hoc modo CVM HERES MEYS MOR- 

TVVS ERIT, DO LEGO, aut DATO. 

ita autem recte legatur CVM 

HERES <MFS> MORIJ5TVR, quia 

non post mortem heredis re- 
linquitur, sed ultimo uitae eius 
tempore, rursum ita non potest 
legari PRIDIE QVAM HERES MEVS 
MORIETVR ; quod non pretiosa 
ratione reoeptum uidetur. 

Inst. 2, 20, 35. 

233, Eadem et de liberta- 
tibus dicta intellegemus. 

234. Tutor uero an post 
mortem heredis dari possit 
quaerentibus eadem forsitaw 
poterit esse quaestio quae de 
{eo) agitatur qui ante heredum 
institutionem datur. 



heir, and accordingly the insti- 
tution of an heir is deemed the 
beginning and foundation of a 
will. 

230. For the same reason a 
slave cannot be enfranchised 
before an heir is appointed. 

231. Nor, according to my 
school, can a guardian be nomi- 
nated before an heir is appointed : 
according to I^abeo and Proculus 
he may, because no part of the 
inheritance is given away by the 
nomination of a guardian. 

232. A bequest to take effect 
after the death of the heir is 
void, that is to say, if limited in 
the following terms ; ' After my 
heir's death I give and dispose,' 
or, 'let my heir give.' The 
following limitation is valid : 
' When my heir dies,' because 
the legacy is not to take effect 
after his death, but at the last 
moment of his life. A bequest 
to take effect on the day pre- 
ceding the death of the successor 
is void. This distinction reposes 
on no valid reason. 

233. The same rules apply to 
enfranchisements. 

234. Whether a guardian can 
be nominated after the death of 
the hen', probably admits of the 
same divergence of opinion as 
whether he can be nominated 
before the appointment of the 
heir. 



[DE POENAE CAVSA RELICTIS LEGATIS.] 



235. Poenae quoque no- 
mine inutiliter legatur. poenae 
autem nomine legari uidetur 
quod coercendi heredis causa 
relinquitur, quo magis heres 
aliquid faciat aut non faciat; 
ueluti quod ita legatur si HERES 

MEVS F1LIAM SFAM TITIO IN 
M A.TRIMONIVM CONLOCAVERIT, X 



235. Penal bequests are void. 
A penal bequest is one intended 
to coerce the heir to some per- 
formance or forbearance. For 
instance, the following: 'If my 
heir give his daughter in mar- 
riage to Titius, let him pay ten 
thousand sesterces to Seius : ' 
and the following: 'If thou do 



242 



DE LEGATIS 



[ir. 229-245. 



(MILT A) SEIO DATO, uel ita si 

FILIAM TITIO IN MATRIMONIVM 
NON CONLOCAVERIS, X MILIA 

TITIO DATO ; sed et si heredem, 
(si) uerbi gratia intra biennium 
monumentum sibi non fecerit, 
x (milia) Titio dare iusserit, 
poenae nomine legatum est ; et 
denijque ex ipsa definitione 

multas similes species | 

possumus. Inst. 2, 20, 36. 

236. Nee libertas quidem 
poenae | nomine dari potest, 
quamuis de ea re fuerit quae- 
situm. 

237. De tutore uero nihil 
possumus quaerere, quia non 
potest datione tutoris heres con- 
pelli quicquam facere aut non 

facere ; ideoque { } datur, 

poenae nomine tutor datus fue- 
rit, magis sub condicione quam 
poenae nomine datus uidebitur. 



238. Incertae personae le- 
gatum inutiliter relinquitur. 
incerta autem uidetur persona 
quam per incertam opinionem 
animo suo testator subici^uefott 
cum ita legatum sit QVI PRIMVS 

AD FVNVS MEVM VENEKIT El 



HERES MEVS X MILIA DATO. 

idem iuris est, si generaliter 
omnibus legauerit QVICVMQVE 

AD FVNVS MEVM VENERIT. \n 

eadem causa est quod ita relin- 
quitur QVICVMQVE FILIO MEO IN 
MATRIMONIVM FILIAM SVAM 
CONLOCAVERIT, El HERES MEVS 

x MILIA DATO. illud quoque [in 
eadem causa est] quod ita re- 
linquitur QVI POST TESTAMEN- 
TVM (SCRIPTVM PRIMl) CON- 

SVLES DESIGNATI ERVNT, aeque 
incertis personis legari uidetur. 
et denique aliae multae huius- 



not give thy daughter in mar- 
riage to Titius, do thou pay ten 
thousand sesterces to Titius : ' 
and the following: 'If my heir 
does not, say, within two years 
build me a monument, I order 
him to pay ten thousand sesterces 
to Titius ; ' all these are penal 
bequests, and many similar in- 
stances may be imagined in ac- 
cordance with the definition. 

236. Freedom cannot be left 
as a penal bequest, although the 
point has been disputed. 

237. The nomination of a 
guardian cannot give rise to the 
question, because the nomination 
of a guardian cannot be a means 
of compelling an heir to any per- 
formance or forbearance, and a 
penal nomination of a guardian 
is inconceivable : if, however, a 
nomination were made with this 
design, it would be deemed 
rather conditional than penal. 

238. A bequest to an un- 
certain person is void. An un- 
certain person is one of whom the 
testator has no certain concep- 
tion, as the legatee in the follow- 
ing bequest: 'Any one who comes 
first to my funeral, do thou, my 
heir, pay him ten thousand ses- 
terces : ' or a whole class thus 
defined : ' Every one who comes to 
my funeral : ' or a person thus de- 
fined : ' Any one who gives his 
daughter in marriage to my son, 
do thou, my heir, pay him ten 
thousand sesterces : ' or persons 
thus defined: 'Whoever after 
my will is made are the first 
consuls designate : ' all these 
persons are uncertain, and many 
others that might be instanced. 
A bequest, qualified by a definite 
description, to an uncertain per- 
son is valid, as the following: 



ii. 229-245.] DE INVTILIBVS LEGATIS 



243 



modi species sunt. sub certa 
uero demonstratione inceitae 
personae recte legatur, ueluti 

EX CO&NATIS MEIS QVI NVNC 
SVNT QVI PRIMVS AD FVNVS 
MEVM VENEEIT, El X MILIA 
HEEES MEVS DATO. 

Inst. 2, 20, 25. 

239. Libertas quoque non 

uidetur incertae personae dari 

posse, quia lex Fufia Caninia 

iubet nominatimseruosliberari. 

240. Tutor quoque certus 
dari debet. 

241. Postumo quoque alieno 
inutiliter legatur. (Ekt) autem 
alienus postumus qui natus in- 
ter suosheredes testatori futurus 
non est. ideoque ex emancipate 
quoqae filio conceptus nepos 
extraneus postumws est ; item 
qui in utero est eius quae iure 
ciuili non intellegitur uxor, ex- 
traneus postumus patris intel- 
legitur. Inst. 2, 20, 26. 

242. Ac ne heres quidem 
potest institui postumus alienu s ; 
est enim incerta persona. 

Inst. 2, 20, 28. 

243. Cetera uero quae supra 
diximus ad legata proprie per- 
tinent, quamquam non inme- 
rito quibusdam placeat poenae 
nomine heredem institui non 
posse; nihil enim interest, 
utrum legatum dare iubeatur 
heres, si fecerit aliquid aut non 
fecerit, an coheres ei adiciatur, 
quia tarn coheredis adiectione 
quam legati datione conpellitur, 
ut aliquid contra propositum 
suum faciat aut non faciat. 

244. An ei qui in potestate 
sit eius quern heredem institui- 
mus recte let/emus, quaeritur. 
Seruius recte legari putat, sed 



'Of all my kindred now alive 
whoever first comes to my 
funeral, do thou, my heir, pay 
him ten thousand sesterces.' 



239. Freedom cannot he be- 
queathed to an uncertain person, 
because the lex Fufia Caninia re- 
quires slaves to be enfranchised 
by name. 

240. An uncertain person 
cannot be nominated guardian. 

241. An afterborn stranger 
cannot take a bequest: an after- 
born stranger is one who on his 
birth will not be a self-successor 
to the testator : thus a grandson 
by an emancipated son is an 
afterborn stranger to his grand- 
father, and a child in the womb 
of one who is not regarded as a 
wife by civil law is an afterborn 
stranger to his father. 

242. An afterborn stranger 
cannot even be appointed heir, 
because he is an uncertain per- 
son. 

243. Though what was said 
above of penal dispositions refers 
properly to bequests, yet a penal 
institution of an heir is justly 
considered by some authorities 
to be void, for it makes no dif- 
ference whether a legacy is left 
away from an heir on his doing 
or failing to do something, or 
a co-heir is appointed, as the 
addition of a co-heir is as effec- 
tive a means of coercion as the 
giving a legacy, to force an heir 
to do or not do something against 
his inclination. 

244. Whether a legacy can 
be lawfully left to a person in the 
power of the heir is a question. 
Servius holds that the bequest 



E 2 



244 



DE LEGATIS 



[n. 229-245. 



euanescere legatum, si quo tem- 
pore dieslegatorumcedere solet, 
adhuc in potestate sit ; ideoque 
siue pure legatum sit et uiuo 
testatore in potestate heredis 
esse desierit, siue sub condi- 
cione et ante condicionem id 
aceiderit, deberi legatum. Sa- 
binus et Cassius sub condicione 
recte legari, pure non recte, 
putant; licet enim uiuo testa- 
tore possit desinere in potestate 
heredis esse, ideo tamen inutile 
legatum intellegi oportere, quia 
quod nullas uires habiturum 
foret, si statim post testamen- 
tum factum decessisset testator, 
hoc ideo ualere quia witam 
longius traxerit, absurdum es- 
set sed diuersae scholae auc- 
tores nee sub condieione recte 
legari, quia quos in potestate 
habemus eis non magis sub 
condicione quam pure debere 
possumus. List. 2, 20, 32. 



245. Ex diuerso constat ab 
eo qui in potestate (tua} est 
herede institute recte tibi legari; 
sed si tu per eum heres exti- 
teris, euanescere legatum, quia 
ipse tibi legatum debere non 
possis; si uero films emanci- 
patus aut seruus manumissus 
erit uel in alium translatus, et 
ipse heres extiterit aut alium 
fecerit, deberi legatum. 

Inst. 2, 20, 33. 



is valid, though it lapses if he 
continue under power at the date 
when the legacies vest ; and 
whether the bequest is absolute 
and the legatee ceases to be 
subject to the power of the heir 
in the lifetime of the testator, or 
whether it is conditional and he 
is liberated before the condition 
is accomplished, in either case 
he holds the legatee entitled to 
the legacy. Sabinus and Cassius 
hold that a conditional bequest 
is valid, an absolute bequest in- 
valid, because though the legatee 
may cease to be subject to the 
heir in the lifetime of the tes- 
tator, yet the bequest must be 
deemed invalid because it would 
be absurd to hold that a disposi- 
tion which would be void if the 
testator died immediately after 
making his will, can acquire vali- 
dity by the mere prolongation of 
his life. Theotherschool of jurists 
hold that even a conditional be- 
quest is invalid, because a person 
under powar is as incapable of 
having conditional as absolute 
legal claims against his superior. 
245. Conversely it is certain 
that if a person in your power is 
appointed heir, he can be charged 
with payment of a legacy to you ; 
though if you inherit by his 
means the legacy fails, because 
you cannot be bound to pay 
yourself; but if your son is 
emancipated, or your slave manu- 
mitted or aliened, and either he 
himself becomes heir or he makes 
the person to whom he is alienated 
heir, you are entitled to the legacy. 



229-236. The rules requiring that bequests should follow the 
institution of the heir, and should be limited to take effect in the life- 
time of the heir, and prohibiting penal bequests, were abolished by 
Justinian, as may be seen by comparing the corresponding passages 
in his Institutes. 

238. Justinian abolished the rule prohibiting bequests to un- 



ii. 229-245.] DE INVTILIBVS LEGATIS 245 

certain persons, Cod. 6, 48. Corporations or Universitates are certae 
personae, not incertae as we might imagine from their mention in this 
constitution and elsewhere, the conception of a juristic person not 
being very distinctly formed by the Eoman jurists. But though, as 
juristic persons, they were capable in general of property, yet, perhaps 
from a feeling of the impolicy of the principle of Mortmain, they were 
incapable of taking either hereditas or legatum. Of. Ulpian, 22, 5 
' Nee municipia nee municipes heredes institui possunt, quoniam in- 
certum corpus est, et neque cernere universi neque pro herede gerere 
possunt ut heredes fiant : senatusconsulto tamen concessum est, ut 
a libertis suis heredes institui possint. Sed ndeicommissa hereditas 
municipibus restitui potest : denique hoc senatusconsulto prospectum 
est.' Leo, A. D. 469, made municipalities capable of taking an in- 
heritance (hereditas), and by the legislation of Nerva and Hadrian all 
municipalities (civitates) had become capable of taking bequests 
(legatum), Ulpian, 24, 18. By Justinian's time Churches and 
Foundations as well as Municipalities had become capable of taking 
an inheritance or a legacy > but not corporations generally, except by 
special permission, Cod. 6, 24, 8. 1 197-200, comm. 

242. Although an afterbom stranger could not be appointed 
heir by the civil law, yet the praetor sustained such an appointment, 
and gave him the bonorum possessio. Justinian permitted him to 
take the hereditas, Inst. 3, 9 pr. After Justinian's legislation, Cod. 
6, 48, but little remained of the once important disqualification of 
incerta persona except the rule, that a succession, testamentary or 
intestate, could not belong to a postumus alienus, unless he was 
begotten (conceptus) in the lifetime of the heritage-leaver. 

244. Dies legati cedens, or the time from which a legatee has an 
interest in the legacy, contingent on the inheritance being entered 
on, which in the event of his death is transmissible to his heredes, 
dated, as we have seen, in the time of Gaius from the opening of the 
testator's will : dies veniens, the acquisition of a legacy, dates from 
aditio of the heres. It does not require acceptance or even know- 
ledge of the legacy, 195. In reference to contracts these terms 
mean the date when an obligation vests and the date when payment 
may be exacted. On dies cedens an obligation is acquired : it forms 
part of the creditor's patrimony, and is capable of novation, cession, 
acceptilation : on dies veniens or actio nata, payment may be exacted 
and is recoverable by suit. The distinction between dies cedens and 
dies veniens in obligations arises when a dies adjecta or future date 
of performance is contained in the lex contractus. 

A right to a conditional legacy vested when the condition was 
accomplished. Herein a conditional legacy differs from a conditional 
contract. A fulfilled condition of a contract or promise is retracted 



246 DE FIDEICOMMISSIS [n. 246-259. 

to the date of the promise : i. e. the obligation of the promiser and 
the right of the promisee date from the conclusion of the contract 
as if it had been originally unconditional. Though an unconditional 
legacy was liable to be defeated by the heres declining the inheri- 
tance, or the will from any other cause failing of operation, yet, as 
soon as the validity of the will was ascertained by the aditio of the 
heres, the vesting of an unconditional legacy dated back from the 
opening of the will, or the death of the testator. 

One of the Catos was the author of a maxim, that to test the 
validity of a legacy we must examine whether it would be valid 
if the testator died immediately after executing his will. This was 
called regula Catoniana, Dig. 34, 7, 1 pr. The retroactive effect 
of the removal of an original impediment to the validity of a title 
is called the convalescence of the title. Accordingly, Cato's rule 
may be described as a rule denying the convalescence of legacies. 
Cato's rule, however, was only a criterion of the validity of uncon- 
ditional bequests ; the validity of conditional bequests can only be 
tested when the condition is accomplished. Accordingly, of the 
three opinions mentioned in this paragraph, that of Sabinus is to be 
regarded as sound, and is so treated by Justinian, Inst. 2, 20, 32. 

DE FIDEICOMMISSAEIIS HEEEDITATIBVS. 

246. Nunc transeanms ad 246. We now proceed to 

fideicommissa. Inst. 2, 23 pr. trusts. 

247. Et prius de hereditati- 247. And to begin with trust 

bus uideamus. Inst. 1. c. inheritances. 

248. Inprimis igitur scien- 248. The first requisite is 

dum est opus esse, ut aliquis that an heir should be duly 

heres recto iure instituatur instituted and that it be com- 

eiusque fidei committatur, ut mitted to his trust to transfer 

earn hereditatem alii restituat ; the inheritance to another, for 

alioquin inutile est testamen- the will is void unless an heir 

turn in quo nemo recto iure ls " u ^y instituted, 
heres instituitur. Inst. 2, 23, 2. 

249. Verba autem [utilial 249. The words properly and 

fideicommissorum haec ^rectej commonly used to create a trust 

maxime in usu esse uidentur are : 'I beg, I request, I wish, I 

PETO, KOQO, VOLO, FIDEI COM- intrust;' and they are just as 

MITTO; quae proinde firma binding separately as united, 
singula sunt, atque si ortmia in 
unum congesta sint. 

250. Cum igitur scripseri- 2 50. Accordingly, when we 

mus <X.) TITIVS HEKES ESTO, have written : ' Lucius Titius, be 

possuums adicere EOGO TE L. thou my heir,' we may add : 'I 

TITI PETOQVE A TE, YT CVM request and beg thee, Lucius 

PRIMVM POS8IS HEREDITATEM Titius, as soon as thou canst 



ii. 246-259.] DE FIDEICOMM. HEREDITATIBVS 247 



MEAM ADIEE, 0. SEIO EEDDAS 

RESTITVAS. possumus autem et 
de parte restituenda rogare ; et 
liberum est uel sub condicione 
uel pure relinquere fideicom- 
missa, uel ex die certa. 

Inst. 1. c. 

251. Restituta autem here- 
ditate is qui restituit nihilo 
minus heres permanet ; is uero 
qui recipit hereditatem aliquan- 
do heredis loco est, aliquando 
legatarii. Inst. 2, 23, 3. 

252. Olim autem nee here- 
dis loco erat nee legatarii, sed 
potius emptoris. tune enim in 
uau erat ei cui restituebatur 
hereditas nummo uno earn here- 
ditatem dicis causa uenire ; et 
quae stipulationes {inter uen- 
ditorem hereditatis et emptorem 
inter poni solent, eaedem inter- 
ponebantury inter heredem et 
eum cui restituebatur hereditas, 
id est hoc modo : heres quidem 
stipulabatur ab eo cui restitue- 
batur hereditas, ut quidquid 
hereditario nomine condem- 
natus so^uisset, siue quid alias 
bona fide dedisse, eo nomine 
indemnis esset, et omnino si 
quis cum eo hereditario nomine 
ageret, ut recte defenderetur ; 
ille uero qui recipiebat heredi- 
tatem inuicem stipulabatur, ut 
si quid ex hereditate ad heredem 
peruenisset.id sibi restitueretur, 
ut etiam pateretur eum heredi- 
tarias actiones procuratorio aut 
cognitorio nomine exequi. 

253. Sed posterioribus tem- 
poribus Trebellio Maximo et An- 
naeo Seneca consulibus sena- 
tusconsultum factum est, quo 
cautum est, ut si cui hereditas 
ex fideicommissi causa restituta 
sit, actiones quae iure ciuili 



accept my inheritance, to convey 
and transfer it to Graius Seius ; ' 
or we may request him to 
transfer a part. So again a trust 
may be either conditional or abso- 
lute, and to be performed either 
immediately or from a certain 
day. 

251. After the transfer of the 
inheritance the transferror never- 
theless continues heir, while the 
transferree sometimes is in the 
position of an heir, sometimes in 
that of a legatee. 

252. But formerly he was 
neither in the position of heir 
nor in that of legatee but rather 
in that of purchaser. Since in 
those times it was customary for 
the transferree of an inheritance 
to pay a sesterce as fictitious pur- 
chaser of it, and the stipulations 
appropriate to a vendor and pur- 
chaser of an inheritance were 
entered into by the heir and 
transferree, that is to say, the 
heir stipulated from the trans- 
ferree that he should be indemni- 
fied for any sums he might be 
condemned to pay or might in 
good faith pay on account of the 
inheritance, and be adequately 
defended in any suit on account 
of the inheritance ; and the trans- 
ferree on the other hand stipulated 
that he should receive from the 
heir anything coming to the heir 
from the inheritance and be per- 
mitted to bring actions belonging 
to the heir as his cognitor or 
procurator. 



253. But subsequently, in the 
consulate of Trebellius Maximus 
and Annaeus Seneca, a senatus- 
consult was passed providing 
that, when an inheritance is 
transferred in pursuance of a 
trust, the actions which the 



248 



DE FIDEICOMMISSIS [n. 246-259. 



heredi et in heredem conpe- 
terent (ei) et in eum darentur 
cui ex fideicornrnisso restituta 
esset hereditas. per quod sena- 
tusconsultum desierunt illae 
cautiones in usu haberi. prae- 
tor enim utiles actiones ei et in 
eum qui recepit hereditatem 
quasi heredi et in heredem 
dare coepit, eaeque in edicto 
proponuntur. Inst. 2, 23, 4. 
254. Sed rursus quia here- 
des scripti, cum aut totam 
hereditatem aut paene totam 
plerumque restituere rogaban- 
tur,adire hereditatem ob nulluni 
aut minimum lucrum recusa- 
bant, atque ob id extingue- 
bantur fideicommissa, ipostea 
Pegaso et Pusione (consulibusy 
senatus censuit, ut ei qui roga- 
tus esset hereditatem restituere 
proinde liceret quartam partem 
retinere, atque e lege Falcidia 
in legatis retinere conceditur. 
(ex singulis quoque rebus quae 
per ndeicommissum relincuntur 
eadem retentio permissa est.) 
per quod senatusconsultum ipse 
(heres) onera hereditaria susti- 
net. ille autem qui ex fidei- 
commisso reliquam partem 
hereditatis recipit legatarii par- 
tiarii loco est, id est eius lega- 
tarii cui pars bonorum legatur; 
quae species legati partitio vo- 
catur, quia cum herede lega- 
tarius partitur hereditatem. 
unde effectum est, ut quae 
solent stipulationes inter here- 
dem et partiarium legatarium 
interponi, eaedem interponantur 
inter eum qui ex fideicommissi 
causa recipii hereditatem et 
heredem, id est ut et lucrum 
et damnum hereditarium pro 
rata parte inter eos commune 
sit. Inst. 2, 23, 5. 



civil law allows to be brought by 
the heir or against the heir shall 
be maintainable by the trans- 
ferree and against the transferree. 
Hence the old covenants were 
discontinued, and the Praetor 
used to give to and against the 
transferree as quasi heir the 
modified forms of action (utiles 
actiones) which are formulated 
in the edict. 

254. However, as heirs, when 
requested to transfer the whole 
or nearly the whole of an in- 
heritance, declined for only a 
small or no benefit to accept 
the inheritance, which caused a 
failure of the trusts, the senate 
in the consulship of Pegasus and 
Pusio decreed, that an heir re- 
quested to transfer an inheri- 
tance should have the same 
right to retain a fourth of it 
as the lex Palcidia gives to an 
heir charged with the payment 
of legacies ; and gave a similar 
right of retaining the fourth of 
any separate things left in trust. 
When this senatusconsult comes 
into operation, the heir bears the 
burdens of the inheritance and 
the transferree of the residue is 
on the footing of a partiary 
legatee, that is, of a legatee of 
a certain part of the estate under 
the kind of legacy called parti- 
tion, because the legatee shares 
the inheritance with the heir. 
Accordingly the stipulations ap- 
propriate between an heir and 
partiary legatee are entered into 
by the heir and transferree, in 
order to secure a ratable division 
of the gains and losses arising 
out of the succession. 



it. 246-259.] DE FIDEICOMM. HEREDITATIBVS 249 



255. Ergo siquidem non 
plus quam dodrantem here- 
ditatis scriptus heres rogatus sit 
restituere, turn ex Trebelliano 
senatusconsulto restituitur he- 
reditas, et in utrumque actiones 
hereditariae pro rata parte 
dantitr, in heredem quidem iure 
ciuili, in eum uero qui recipit 
hereditatem ex seDatusconsulto 
Trebelliano. quamquam heres 
etiam pro ea parte quam restituit 
heres permanet eique et in eum 
solidae actiones conpetunt ; sed 
non ulterius oneratur nee ulte- 
rius illi dantur actiones, quam 
apud eum commodum hefedita- 
tis remanet. Inst. 2, 23, 6. 

256. At si quis plus quam 
dodrantem uel etiam totam he- 
reditatem restituere rogatus sit, 
locus est Pegasiano senatus- 
consulto. Inst. 1. c. 

257. Sed is qui semel adierit 
hereditatem, si modo sua uo- 
luntate adierit, siue retinuerit 
quartam partem siue noluerit 
retinere, ipse uniuersa onera 
hereditaria sustinetf ; sed quarta 
quidem retenta quasi partis et 
pro parte stipulationes inter- 
poni debent tamquam inter 
partiaraim legatarium et here- 
dem ; si uero totam hereditatem 
restituerit,adexemplum emptae 
et uenditae hereditatis stipula- 
tiones interponendae sunt. 

Inst. 1. c. 

258. Sed si recuset scriptus 
heres adire hereditatem ob id, 
quod dicat earn sibi suspectam 
esse quasi damnosam, cauetur 
Pegasiano senatusconsulto, ut 
desiderante eo cui restituere 
rogatus est, iussu praetoris 
adeat et restituat, proindeque 
ei et in eum qui receperit {here- 



255. If then the heir is re- 
quested to transfer no more than 
three fourths of the inheritance 
the Sc. Trebellianum governs the 
transfer, and both are liable to 
be sued for the debts of the in- 
heritance in ratable portions, the 
heir by civil law, the transferree 
by the Sc. Trebellianum : for 
though the heir even as to the 
transferred portion continues 
heir, and can, according to jus 
Civile, sue or be sued for the 
entire debts, his liabilities and 
rights of action are limited by the 
Sc. in the proportion of his bene- 
ficial interest in the inheritance. 



256. If more than three 
fourths or the whole is devised 
in trust to be transferred, the 
Sc. Pegasianum comes into opera- 
tion. 

257. And when once the 
heir has accepted, that is to say, 
voluntarily, whether he retains 
one fourth or declines to retain 
it, he bears the burdens of in- 
heritance : but, if he retains a 
fourth, he should covenant with 
the transferree as quasi partiary 
legatee ; if he transfers the whole, 
he should covenant with him as 
quasi vendee of an inheritance. 



258. If an heir refuse to 
accept an inheritance from a sus- 
picion that the liabilities exceed 
the assets, it is provided by the 
Sc. Pegasianum, that on the 
request of the transferree he 
may be ordered by the Praetor 
to accept and transfer ; where- 
upon the transferree shall be 



250 DE FIDEICOMMISSIS [n. 246-259. 

ditatemy actiones dentur, ac just as capable of suing and 

iuris est ex senatusconsulto being sued as the transferee 

Trebelliano. quo casu nullis under the Sc. Trebellianum. In 

stipulationibus opus est, quia this case no stipulations are 

simul et huic qui restituit necessary, because the trans- 

securitas datur, et actiones f err F.. 1S P^tected, and the 

hereditariae ei et in eum trans- hereditary actions pass to and 

~ . ., i j., against the transterree. 
ieruntur qui receperit heredita- 

tem. Inst. 1. c. 

259. Nihil autem interest 259. It makes no difference 

utrum aliquis ex asse heres in- whether a person appointed as 

stitutfus aut totam hereditatem heir to the whole inheritance be 

aut pro parte restituere rogetur, requested to restore the whole or 

an ex parte heres institutus aut P arfc of ^ or whether a person 

totam earn partem aut partis appointed as heir to a share be 

partem restituere rogetur; nam requested to restore his whole 

et hoc casu de quarto pa7'te share or only a part of it ; for m 

,. T> this case also a fourth or the 

ems partis ratio ex Pegasiano ghare to which he ^ inted is 

senatusconsulto haberi solet. 

Inst. 2, 2d, . 



246. The dispositions of a testator which have been hitherto 
considered were directions addressed to his heir, resembling the 
orders of a father to his son or of a master to his slave, or the com- 
mands of a magistrate or of a legislator to his subjects. Hence the 
importance of the regular institution of an heir, of finding a person 
who, being a mere creature of the testator's, shall be compelled to 
execute his commands. 

Fideicommissa, to which we now proceed, are not commands, but 
requests. Legatum est quod legis modo, id est, imperative, testa- 
mento relinquitur, nam ea quae precativo modo relinquuntur fidei- 
commissa vocantur, Ulpian, 24, 1. 'A legacy is a legislative or 
imperative testamentary disposition : a precative disposition (a dis- 
position in the form of entreaty) is a trust.' 

The original object of trusts was to extend the testator's bounty 
to those who were legally incapacitated to be legatees ; for instance, 
aliens and Latini Juniani ; and though Hadrian subsequently in- 
capacitated aliens for taking the benefit of a trust, 285, yet, as 
declarations of trust were exempt from many other restrictions 
which hampered direct legacies, they survived the circumstance 
which was the principal motive of their introduction, cf. 260-289. 
For instance, another object of the declaration of trusts was to avoid 
the restrictions imposed by the lex Falcidia on the amount of 
legacies bequeathable to legatees who were capable of taking (had 
capacitas as well as testamenti factio passiva), 254, and this object 



II. 246-259.] DE FIDEICOMM. HEREDITATIBVS 251 

would continue to operate as a motive for the employment of trusts 
even after the invalidation of trusts in favour of peregrini, till it was 
defeated by the Sc. Pegasianum. Or again, a limitation to take 
effect after the death of heres, 277, or a charge by means of 
codicilli on the intestate heir, which were not recognized by civil 
law, remained valid as trusts. 

That trusts had originally no legal validity, we see from Cicero, 
Verres, 2, 1, 47, where we learn that it was usual for the testator 
to make the heir take an oath to perform the testator's wishes, 
thus supplying by religious motives the want of a political sanction. 
But Augustus, as we are informed by Justinian, Inst. 2, 23, 1, in 
some individual cases of breach of trust directed the consuls to inter- 
pose their authority and compel trustees to execute their charge ; 
and trusts soon became an ordinary mode of testamentary disposi- 
tion, and, in process of time, a permanent fiduciaiy jurisdiction was 
established, the court of a special praetor fideicommissarius. 

Originally if a testator wished to leave to a certain person the 
net amount of his fortunes, unsaddled with the burden and risk of 
administration, he instituted another as heres, whose sole function 
was the satisfaction of creditors and the discharge of the other duties 
of administration : and bequeathed the net residue of his patrimony to 
the real object of his bounty as legatee (legatarius). When this course 
was restricted by the lex Falcidia, a testator who wished a certain 
object of his bounty to receive the whole of his patrimony free from 
burdens would institute another person as heres, subject to a trust 
to transfer the whole of the inheritance, after payment of debts and 
perhaps with some remuneration for his trouble, to the real bene- 
ficiary (fideicommissarius). At first the testator could only rely on 
the honour of the heres, for these trusts were not legally binding ; 
and not long after they became legally binding they were subjected 
by Sc. Pegasianum, under the Emperor Vespasian, to the same 
restrictions as were imposed on legacies. Sc. Trebellianum, under 
Nero, had placed the person to whom the inheritance was transferred 
in exactly the same position as the heir (heredis loco), to whom the 
Falcidian abatement was of course inapplicable. Sc. Pegasianum, to 
subject fideicommissarius to this abatement, for the benefit of heres 
fiduciarius, gave the latter the option of treating him as if he were 
legatarius. Thus the advantage of having a disinterested Executor, 
of leaving the testator's wishes to be carried into effect by a person 
not, like the heir or one loco heredis, himself interested in the dis- 
tribution ; an advantage which an English testator may, if he chooses, 
secure, was deliberately sacrificed by the Eoman legislator. 

Another method of leaving to a person the net value of an 
inheritance without the troubles of administration, viz. the insti- 



252 DE FIDEICOMMISSIS [n. 246-259. 

tution of the slave of the person whose benefit was intended, has 
already been noticed. 189, comm. 

The conversion of a moral into a legal obligation by the legaliza- 
tion of trusts was similar to what occurred when, under the Twelve 
Tables, legal force was given to the mancipatio cum fiducia, declaring 
the conditions and purposes of a emancipation, 2 60 ; and, 
remembering the celebrated ordinance, Cum nexum faxit manci- 
piumque, uti lingua nuncupassit, ita jus esto, it may occur to us to 
wonder why Augustus did not imitate the energetic brevity of the 
ancient legislator, and simply enact, Cum testamentum faxit codi- 
cillosve, uti fideicommiserit, ita jus esto. There would then have 
been no need of the cumbrous machinery of fictitious sales and 
stipulations between quasi vendor and quasi vendee ; but a little 
reflection will show that such an enactment would have operated 
very inconveniently, and have defeated the very purposes for which 
trusts were instituted. Such an enactment would have made trusts, 
like nuncupations, a matter of civil law ; and the jus strictum of 
the civil law was far from elastic or rational even in the time 
of Augustus ; so that, if it was intended to enlarge the powers of 
testators and the discretion of the fiduciary tribunal, it was abso- 
lutely necessary to make trusts a province not of legal but of 
equitable jurisdiction. 

251. The transferree, it will be seen, was quasi heir. when the 
Sc. Trebellianum applied : when the Sc. Pegasianum applied he was 
either quasi legatee or quasi vendee. 

252. These stipulations were employed because the fictitious sale 
(dicis causa, nummo uno) of the inheritance produced no universal 
succession, and so did not transfer the liability. But after Antoninus 
Pius these stipulations were not required in case of an actual sale 
of an inheritance, for though this did ttot operate as a universal 
succession, it involved a cession of actions. Dig. 2, 14, 16; cf. Dig. 
18, 4, Cod. 4, 39. 

253. The terms of the Sc. Trebellianum, passed in the reign of 
Nero, probably A. r>. 57, are given in the Digest 36, 1, 1 and 2. ' Foras- 
much as equity requires that whenever an inheritance is left in trust, 
any actions arising thereout should be brought against the transferree 
of the inheritance or by him, rather than that the fiduciary heir 
should incur any risk in consequence of his trust ; it is decreed that 
the actions of and against an heir, shall not be granted to or against 
an heir who transfers a succession in pursuance of a trust, but to 
and against the testamentary transferree, in order that in future the 
last wishes of testators may have more effect.' It is strange that 
the lawgiver should have stooped to the use of fiction (actio utilis), 
the natural instrument of a magistrate timidly usurping legislative 



ir. 246-259.] DE FIDEICOMM. HEREDITATIBVS 253 

power. Bethmann-Hollweg, 96, suggests that actio utilis was in this 
case not actio fictitia but actio in factum concepta. (Of. Lenel xv. 68.) 

254. By the Sc. Trebellianum, if the whole beneficial interest 
in an inheritance was transferred, the whole right of suing and 
being sued passed to the transferree : if only a portion of the bene- 
ficial interest was transferred, both the transferror and the trans- 
ferree could sue and be sued in the same proportion. But if the 
whole or almost the whole inheritance is to be transferred to another 
the heir has little or no inducement to enter upon it, on which 
account the trust may fail with the other provisions of the will. 
Hence the Sc. Pegasianum, passed in the reign of Vespasian, 
A. D. 70-76, apparently provided that when less than a fourth of the 
inheritance is left to the benefit of the fiduciary heir, he should still 
be entitled to retain his fourth, the Sc. Trebellianum being then 
inoperative, that is to say, that in such a case the actions by or 
against the inheritance shall not be maintainable by or against both 
the heir and the transferree in the proportion of their interests, but 
should be exclusively maintainable by or against the heir. In fact, 
having subjected the transferree to the liability of abatement which 
the lex Falcidia imposed on the legatee, it seemed logical to put 
him in all other respects on the footing of a legatee, or singular 
successor, including the immunity from being sued and incapacity of 
suing for the debts of the succession. If then the fiduciary heir, 
retaining his fourth, became thus sole administrator, the Sc. Pegasi- 
anum directed him an4 the transferree to enter into the covenants 
usual between an heir and a partiary legatee. The heir promised, 
in the event of an underestimate, to make an additional payment ; 
and the transferree promised, in the event of an overestimate, to 
make a proportional repayment. A partiary legatee is a legatee by 
partition, which Theophilus calls a fifth form of legacy, and of 
which Ulpian gives the formula, 24, 25. ' As single things can be 
bequeathed, so can a universality, for instance thus: Do thou, my 
heir, partition and divide my inheritance with Titius ; in which case 
a moiety is deemed to be bequeathed, but any other part, a third 
or fourth, may be bequeathed, and this form of bequest is called 
partition.' This form of legacy probably owed its origin to the lex 
Voconia, 226, which forbade Classicus to make an heiress. 

257, 258. The subject is not very clearly explained by Gaius, 
but it would seem that after the Sc. Pegasianum was passed, the 
principle of the Sc. Trebellianum continued to apply, if as much as 
a quarter of the estate was reserved to the heir by the testator ; thus 
the inheritance with its rights and duties would be divided pro parte 
between the heir and the transferree. But if the heir was left less 
than one fourth, his relation to the transferree, if he accepted the 



254 DE FIDEICOMMISSIS [n. 246-259. 

inheritance, was determined by the Sc. Pegasianum. In such cir- 
cumstances he might enter on the inheritance and deduct a fourth, 
or if he chose to carry out the trust implicitly enter without making 
this deduction. But in the latter case, as well as in the former, the 
law treated him not as an heir but as a legatee, which made the old 
stipulations still necessary. 

However Modestinus recommended, as the safer course if the heir 
declined to avail himself of his right to the fourth, that he should 
feign unwillingness to accept a damnosa hereditas, and should make 
a compulsory acceptance by the order of the praetor, 258, in which 
case the actions are transferred in totality to the transferree by the 
express provision of the Sc. Pegasianum, Dig. 36, 1, 47. The 
sequence of 257, 258 seems to indicate an intention of Gaius to 
suggest that this course might be adopted. 

The requirement for form's sake of a compulsory aditio and 
restitutio, instead of making the hereditas vest immediately under 
the will in the fideicommissarius (the course pursued by the legis- 
lator in the English statute of Uses and Trusts), has already, 
1 189-193, been noticed as characteristic of Eoman jurisprudence. 
It had this inconvenience, that it permitted the trusts to be defeated 
by the death or absence, malicious (dolo malo) or involuntary, of 
the heres fiduciarius. No remedy was provided for this contingency 
till the time of Justinian, who enacted that in such a case the 
inheritance should vest in the fideicommissarius by mere operation 
of law (ipso jure). Sancimus itaque ut sive per contumaciam 
afuerit is cui restitutio imposita est, sive morte praeventus nullo 
relicto successore fuerit, sive a primo fideicommissario in secundum 
translatio celebrari jussa est, ipso jure utiles actiones transferantur, 
Cod. 6, 49, 7, 1 &. 

259. The stipulations of the transferree as quasi vendee or 
quasi partiary legatee required by the Sc. Pegasianum were not 
only a cumbrous machinery, but after all afforded an insufficient 
security to the parties. The heir and transferree were always in 
mutual danger of one another's insolvency, and an heir after trans- 
ferring the whole inheritance, though not fairly liable to any 
molestation or vexation on account of it, might find himself with 
two lawsuits on his hands : he might first be sued by the creditors 
of the estate, and then have to recover back what he is condemned 
to pay them from the transferree by suing him on the covenants of 
quasi vendor and quasi vendee. 

It is not surprising therefore, that Justinian abolished these 
provisions of the Sc. Pegasianum, and enacted that in every case 
there shall be a transfer or division of actions as contemplated by 
the Sc. Trebellianum, i. e. that the actions by or against the in- 



ii. 246 -259.] DE FIDEICOMM. HEREDITATIBVS 255 

heritance shall either be transferred in totality to the transferree. 
or be maintainable by or against both the heir and the transferree 
in the proportion of their interests. See Inst. 2, 23, 7. 

The following observations may serve to complete the explanation 
of the Sc. Trebellianum and the Sc. Pegasianum. 

Succession is the transfer of a right from one person (auctor) to 
another person (successor), such as occurs, for instance, in the con- 
veyance or alienation of property. Here the same right of ownership 
that was previously vested in the alienor is subsequently vested in 
the alienee. The right continues the same ; the person invested 
therewith is changed. It was characteristic of obligatio ; a relation 
between two determinate persons (before, at least, the comparatively 
modern invention of papers payable to the holder and transferable by 
delivery) that it was not capable of a similar alienation. All that 
could be done to accomplish a similar result was to employ one of 
two processes, Novation or Cession of Action, 38. 3 155-162, 
comm. In these procedures there is strictly speaking no Succession, 
for in Novation the transferree is not invested with the same right 
that previously vested in the transferror, but a new right is created 
in the transferree while the old right of the transferror is extin- 
guished : and in Procuration or Cession the right still continues 
nominally in the transferror, as representative of whom the trans- 
ferree recovers it or enforces it by action, retaining for himself what 
is recovered. 

This inalienability of obligations, however, was confined to 
SINGULAR successions (in singularum rerum dominium successio) : 
UNIVERSAL succession (per universitatem successio) or the trans- 
mission of the ideal whole of a patrimony, of which we have 
an example in hereditas testamentary or intestate, differed from 
SINGULAR succession by the capacity of passing obligation as well 
as Dominion. The heres of the testator or intestate sued and was 
sued in his own name on the obligations, active or passive, that 
originally vested in the deceased. But UNIVERSAL succession was an 
institution only recognized by Roman jurisprudence in certain 
definite cases. It was a formidable operation and rigorously cir- 
cumscribed. It was not a transaction that the law allowed to be 
accomplished at the discretion of individual parties in pursuance of 
private convention. It was only admitted in the cases -enumerated 
oy Gaius, 98, and, without legislative interference, the list could 
not be augmented. 

These difficulties in the transfer of obligation opposed a great 
obstacle to the transfer (restitutio) of trust successions: and these 
difficulties were partially removed by the Sc. Trebellianum, and 
more completely by Justinian, by investing the Restitutio with the 



256 DE FIDEICOMMISSIS [n. 246-259. 

character of successio per universitatem, in other words, by the 
legislative sanction of a new instance of UNIVERSAL succession. 

The following observations may illustrate the joint operation of 
the laws concerning Trusts and the lex Falcidia under the law of 
Justinian. Although the fideicommissarius or person to whom an 
inheritance or a portion thereof is directed to be transferred (restitui) 
is charged like a coheres with the legacies in proportion to the quota 
which he takes, he has not like the heres a right of deducting 
from the legacies with which he is charged, and retaining for him- 
self a Falcidian portion or fourth of his quota. His rights against 
the legatee depend on the question whether the testator in directing 
the transfer, or in other words creating the trust, used either 
expressly or by implication the terms deductis legatis, ' after deduc- 
tion of legacies,' a clause favouring the legatees ; or whether, in 
giving the legacies, he used terms charging them on the inheritance 
(si ad heredis onus esse testator legata dixerit) ; which would imply 
that the cestui que trust was to be exactly assimilated to the legatees. 
The following examples will illustrate the working of the law. 

A testator owning 400 (sestertia, or any other units) leaves all 
to A as his sole heres, but directs him as trustee (fiduciarius) 
to convey half the inheritance to B (fideicommissarius), and leaves 
a legacy of 200 to C. The effect is that C receives 100 from A and 
100 from B. Dig. 36, 1, 1, 20. 

But suppose the testator left a legacy of 400 to C. Then C will 
receive 200 from B who has no right of retaining anything, and 
100 from A, who is entitled to retain for himself one fourth of his 
inheritance, i.e. the 100 that remain. 

Questions, however, requiring special treatment may arise in the 
following cases : ( i ) If an heir is charged to transfer the whole of 
an inheritance and the legacies are added to his charge (si ad 
heredis onus esse testator legata dixerit), the interests of both the 
legatee and transferree undergo, if necessary, a proportional reduction. 
For instance a testator, proprietor of 400, makes A his sole heres, 
but requests him to transfer the whole succession to B, and gives 
a legacy of 300 to C, making use of the above-mentioned terms. 
The result is that A, the heres, retains 100 as his Falcidian fourth, 
and the remaining 300 are distributed between B the cestui que 
trust and C the legatee, in the proportion of 4 to 3 ; that is to say, 
the cestui que trust takes f or 17 If, and the legatee takes f or 128^. 
Dig. 36, 1, 3 pr. 

(2) If the testator directs the heir to transfer the whole of the 
inheritance ' after deduction of the legacies ' (deductis legatis), the 
transferree bears the whole burden of the legacies, and only keeps 
what remains after full payment of the legatee, subject to this 



IT. 246-259.] DE FIDEICOMM. HEREDITATIBVS 257 

proviso, that, though a transferree is generally not entitled to a 
Falcidian fourth, yet if a transferree who has to bear the burden 
of legacies receives the inheritance reduced by the Falcidian fourth 
of the heres, he is himself entitled to reduce proportionally the 
legacies and retain a fourth thereof for himself. Dig. 35, 1, 43, 3 ; 
35, 2, 32, 4. E.g. a testator, proprietor of 400, makes A his sole 
heres, requesting him to transfer the whole inheritance to B after 
deduction of legacies, and leaves a legacy of 300 to C. The result 
is that the heir retains ^ (100); and the remaining 300 is dis- 
tributed between the legatee and transferree, the legatee taking 
300 reduced by i (225), and the transferree taking that (75). 
The same effect would have been produced if the testator, instead 
of using the clause deductis legatis, had simply charged the legacies 
on the fideicommissarius. Or the rights of the fideicommissarius 
may be calculated with the same result by the following method. 
The heres retains ^ and transfers f to the cestui que trust, who under 
Justinian's legislation is no longer a partiary legatee as he was 
under the Sc. Pegasianum, but a sharer of the inheritance with 
the heres in the proportion of ^ to ^. The legatee is entitled 
to 300 from these co-heirs in the proportion of their shares of 
the inheritance. The heres, however, is protected by the lex 
Falcidia, and thus ^ of the legacy is lost to the legatee : he obtains, 
however, f (225) from the transferree, who retains for himself the 
remaining (75). 

(3) If the heres makes voluntary aditio, but does not retain the 
Falcidian fourth to which he is entitled, then, if the legacy was 
charged on the inheritance, the whole inheritance is divided between 
the transferree and legatee in the proportion of 4 to 3 : that is, the 
transferree obtains altogether 228f and the legatee 171f. 

(4) If the legacy was expressly charged on the fideicommissarius, 
or if there was no express clause denning whether it was charged 
on him or on the heres, then the legatee will benefit by the heres 
abstaining from his fourth: and the transferree will only get 
what remains after full payment of the legacy. Thus, in the 
circumstances we have assumed, the legatee will get 300 and the 
transferree 100. 

(5) If the heres abstains from his ^ expressly in favour of the 
transferree, the latter alone gets the benefit of such abstention. 

(6) If the heres only makes compulsory aditio, he takes no share 
of the Falcidian fourth, which all goes to the account of the trans- 
ferree who compelled the heres to make aditio. Dig. 36, 1, 2. 

(7) If the heres has to transfer the whole but has received his 
Falcidian fourth in the shape of legacies, the transferree has to 
satisfy the other legatees : and if he cannot pay the whole of their 



258 



DE FIDEICOMMISSIS [n. 260-289. 



legacies they may recover from the heres all that he receives beyond 
his fourth. 

(8) If the heres is directed to transfer not the whole but f of the 
inheritance, the transferree has to satisfy the legatees, but deducts 
and retains for himself ^ of their legacies, as he would under the 
circumstances supposed in (3). Vangerow, 559. 



260. Potest autem quisque 
etiam res singulas per fideicom- 
missum relinquere, uelut fun- 
dum hominem uestem argen- 
tum pecuniam, et uel ipsum 
heredem rogare, ut alicui resti- 
tuat, uel legatarium, quamuis 
a legatario legari non possit. 

Inst. 2, 24, pr. 

261. Item potest non solum 
propria testatoris res per fidei- 
commissum relinqui, sed etiam 
heredis aut legatarii aut cuius- 
libet alterius. itaque et lega- 
tarius non solum de ea re 
rogari potest, ut earn alicui 
restituat quae ei legata sit, sed 
etiam de alia, siue ipsius lega- 
tarii siue aliena sit. [sed] hoc 
solum obseruandum est, ne plus 
quisquam rogetur aliis resti- 
tuere, quam ipse ex testamento 
ceperit ; nam quod amplius est, 
inutiliter relinquitur. 

Inst. 2, 24, 1. 

262. Cum autem aliena res 
per fideicommissum relinquitur, 
necesse est ei qui rogatus est 
aut ipsam redimere et praestare, 
aut aestimationem eius soluere, 
aicut iuris est, si per damna- 
tionem aliena, res legata sit. 
sunt tamen qui putant, si rem 
per fideicommissum relictam 
dominus non uendat, extingui 
fideicommissum ; sed aliam esse 
causam per damnationem le- 
gati. Inst. 1. c. 

263. Libertas quoque seruo 
per fideicommissum dari potest, 



260. Not only an inheritance, 
but also single things, may be 
bequeathed by way of trust, as 
land, a slave, a garment, plate, 
money ; and the trust may be 
imposed either on an heir or on 
a legatee, although a legatee can- 
not be charged with a legacy. 



261. Again not only the tes- 
tator's property, but that of the 
heir, or of a legatee, or that of 
any stranger, may be left by way 
of trust. Thus a legatee may be 
charged with a trust to transfer 
either a thing bequeathed to him, 
or any other thing belonging to 
himself or to a stranger ; provided 
always that he is not charged 
with a trust to transfer more 
than he takes under the will, for 
in respect of such excess the 
trust would be void. 



262. When a stranger's pro- 
perty is bequeathed by way of 
trust, the trustee must either 
procure and convey the specific 
thing or pay its value, like an 
heir charged under a bequest by 
condemnation ; though some hold 
that the owner's refusal to sell 
avoids such a trust, though it 
does not avoid a bequest by con- 
demnation. 



263. Liberty can be left to a 
slave by a trust charging either 



ii. 260-289.] DE SINGVLIS REBVS FIDEICOMM. 259 



ut uel heres rogetur manumit- 
tere uel legatarius. 

Inst. 2, 24, 2. 

264. Nee interest utrum de 

suoproprio seruo testator roget, 

an de eo qui ipsius heredis aut 

legatarii uel etiam extranei sit. 

Inst. 1. c. 

265. Itaque et alienus 
seruus redimi et manumitti 
debet. quodsi dominus eum 
non uendat, sane extinguitur 
fideicommissaria libertas, quia 
hoc casu pretii conputatio nulla 
interuenit. Inst. 1. c. 

266. Qui autem ex fidei- 
commisso manumittitur, non 
testatoris fit libertus, etiamsi 
testatoris seruus fuerit, sed eius 
qui manum^tit. Inst. 1. c. 

267. At qui directo testa- 
mento liber esse iubetur, uelut 
hoc modo STICHVS SERVVS 
(MEVS) LIBEE ESTO, uel hoc 

STTCHVM SERVVMMEVM LTBERVM 

ESSE IVBEO, is ipsius testatoris 
fit libertus. nee alius ullus di- 
recto ex testamento libertatem 
habere potest, quam qui utroque 
tempore testatoris ex iure Qui- 
ritium fuerit, et quo f&ceret 
testamentum et quo moreretur. 
Inst. 1. c. 

268. Multum autem diffe- 
runt ea quae per fideicommis- 
sum re\incun\tur ab his quae 
directo iure legantur. 

269. Nam ecce per fidei- 
commissum etiam ] heredis 
relinqui potest ; cum alioquin 
legatum ] inutile sit. 

270. | Item intestates mori- 
turus potest ab eo ad quern 
bona eius pertinent fideicom- 
missum alicui relinquere ; cum 
alioquin ab eo legari non possit. 



an heir or a legatee with his 
manumission. 

264. And it makes no differ- 
ence whether the slave is the 
testator's own property, or that 
of the heir himself, or of the 
legatee, or even that of a stranger. 

265. A stranger's slave, there- 
fore, must be purchased and 
manumitted, but his owner's 
refusal to sell extinguishes the 
gift of liberty, because liberty 
admits of no valuation in money. 

266. A trust of manumission 
makes the slave the freedman, 
not of the testator, though he 
may have been the owner of the 
slave, but of the manumitter. 

267. A direct bequest of 
liberty, such as: 'Be my slave 
Stichus free,' or, 'I order that 
my slave Stichus be free,' makes 
the slave the freedman of the 
testator. A direct bequest of 
liberty can only be made to a 
slave who is the testator's quiri- 
tarian property at both periods, 
both at the time of making his 
will and at the time of his 
decease. 



268. There are many differ- 
ences between trust bequests and 
direct bequests. 

269. Thus by way of trust a 
bequest may be charged on the 
heir of the heir, whereas such a 
bequest made in any other form 
is void. 

270. Again, a man going to 
die intestate can charge his heir 
with a trust, but cannot charge 
him with a legacy. 



S 2 



260 



DE FIDEICOMMISSIS [n. 260-289. 



270 a. Item legatum codi- 
cillis relictum non aliter ualet, 
quam si a testatore confirmati 
fuerint, id est nisi in testamento 
cauerz'i testator, ut quidquid in 
codicillis scripserit id ratuni 
sit ; fideicommissum uero etiam 
non confirmatis codicillis relin- 
qui potest. 

271. Item a legatario legari 
non potest ; sed fideicommissum 
relinqui potest. quin etiam ab 
eo quoque cui per fideicommis- 
sum relinquimus rursus alii per 
fideicommissum relinquere pos- 
sumus. 

272. Item seruo alieno di- 
recto libertas dari non potest ; 
sec? per fideicommissum potest. 

273. Item codicillis nemo 
heres institui potest neque ex- 
heredari, quamuis testamento 
confirmati sint. at is qui testa- 
mento heres institutus est potest 
codicillis rogari, ut earn here- 
ditatem alii totam uel ex parte 
restituat, quamuis testamento 
codicilli confirmati non sint. 

274. Item mulier quae ab 
eo qui centum milia aeris census 
est per legem Voconiam heres 
institui non potest, tamen fidei- 
commisso relictam sibi here- 
ditatem capere potest. 

275. Latini quoque qui he- 
reditates legataque directo iure 
lege lunia capere prohibentur 
ex fideicommisso capere pos- 
sunt. 

276. Item cum senatuscon- 
sulto prohibitum sit proprium 
seruum minorem annis xxx 
liberum et heredem instituere, 
plerisque placet posse nos iubere 
liberum esse, cum annorum xxx 



270 a. Again, a legacy left 
by codicil is not valid, unless the 
codicil has been confirmed by the 
testator, that is, unless the tes- 
tator has provided in his will that 
anything written in his codicil is 
ratified : whereas a trust requires 
no ratification of the codicil. 



271. A legatee too cannot be 
charged with a direct legacy, but 
can be the subject of a trust, 
and the beneficiary of a trust may 
himself be charged with a further 
trust. 



272. So also a slave of a 
stranger cannot be enfranchised 
by direct bequest, but may by 
the interposition of a trust. 

273. A codicil is not a valid 
instrument for the institution of 
an heir or for his disinheritance, 
though it is ratified by will : but 
an heir instituted by will may be 
requested by a codicil to transfer 
the inheritance in whole or in 
part to another person without 
any ratification by will. 

274. A woman who cannot 
by the lex Voconia be instituted 
heiress by a testator registered in 
the census as owning a hundred 
thousand sesterces, can never- 
theless take an inheritance be- 
queathed to her by way of a trust. 

275. And Latini Juniani, 
who are disabled by the lex 
Junia from taking an inheritance 
or legacy by direct bequest, can 
take it by means of a trust. 

276. Again a decree of the 
senate (rather, the lex Aelia 
Sentia 1 1 8) incapacitates a | 
testator's slave under thirty years 
of age from being enfranchised 
and instituted heir; but, according 



ii. 260-289.] DE SINGVLIS EEBVS FIDEICOMM. 261 



erit, et rogare, ut tune illi resti- 
tuatur hereditas. 



277. Item quamuis non 
(possimus} post mortem eius 
qui nobis heres extiterit alium 
in locum eius heredem insti- 
tuere, tamen possumus eum 
rogare, ut cum morietur alii 
earn hereditatem to tarn uel ex 
parte restituat. et qui a post 
mortem quoque heredis fidei- 
commissum dari potest, idem 
efficere possumus et si ita scrip- 
serimus GYM TITIVS HEEES MEVS 

MOKTVVS EBIT, VOLO HEREDITA- 
TEM MEAM AD P. MEVIVM PER- 

TINERE. utroque autern modo, 
tarn hoc quam illo, Titius here- 
dem suum obligatum relinqui 
de fideicommisso restituendo. 

278. Praeterea legata {per} 
formulam petimus ; fideicom- 
missa uero Romae quidem apud 
consulem uel apud eum prae- 
torem qui praecipue de fidei- 
commissis ius dicitpersequirnur, 
in prouinciis uero apud prae- 
sidem prouinciae. 

279. Item de fideicommissis 
semper in urbe ius dicitur ; de 
legatis uero, cum res agun^ur. 

280. Item fideicommissorum 
usurae et fructus debentur, si 
modo moram solutionis fecerit 
qui fideicommissum debebit ; 
legatorum uero usurae non de- 
bentur; idquerescriptodiui Ha- 
driani significatur. scio tamen 
luliano placuisse, in eo legato 
quod sine-ndi modo relinquitur 
idem iuris esse quod in fideicom- 
inissis ; quam sententiam et his 
temporibus magis optinere uideo. 



to the prevalent opinion, he can 
be ordered to be free on attaining 
the age of thirty, and the heir 
may be bound by way of trust 
to transfer the inheritance to him 
on that event. 

277. An 'heir cannot be in- 
stituted after the death of a prior 
heir, but an heir may be bound 
by way of trust to transfer the in- 
heritance, when he dies, in whole 
or in part to another person ; or, 
as a trust may be limited to take 
effect after the death of the heir, 
the same purpose may be accom- 
plished in these terms : ' When 
my heir is dead, I wish my in- 
heritance to go to Publius Me- 
vius ; ' and whichever terms are 
employed, the heir of my heir is 
bound by a trust to transfer the 
inheritance to the person desig- 
nated. 



278. Legacies, moreover, are 
recovered by the formulary pro- 
cedure ; but trusts are enforced 
by the extraordinary jurisdiction 
of the consul or praetor fideicom- 
missarius at Koine ; in the pro- 
vinces by the extraordinary juris- 
diction of the president. 

279. Cases of trust are heard 
and determined at Borne at all 
times of the year ; cases of legacy 
can only be litigated during the 
trial term. 

280. Trusts entitle to pay- 
ment of interest and interim 
profits on delay of performance 
(mora) by the trustee ; legatees 
are not entitled to interest, as 
a rescript of Hadrian declares. 
Julianus, however, held that a 
legacy bequeathed in the form 
of permission is on the same 
footing as a trust, and this is 
now the prevalent doctrine. 



262 



DE FIDEICOMMISSIS [n. 260-289. 



281. Item legata Graece 
scripta non ualent; fideicom- 
missa uero ualent. 

282. Item si legatum per 
damnationem relictum heres 
infitfietur, in duplum cum eo 
agitur; fideicommissi uero no- 
mine semper in simplum per- 
secutio est. 

283. Item {quod} quisque 
ex fideicommisso plus debito 
per errorem soluerit, repetere 
potest ; at id quod ex causa 
falsa per damnationem legati 
plus debito solutum sit, repeti 
non potest. idem scilicet iun's 
est de eo [legato], quod non 
debiturn uel ex hac uel ex ilia 
causa per errorem solutum 
fuerit. 

284. Erant etiam aliae dif- 
ferentiae, quae nunc non sunt. 

285. Vt ecce peregrini 
poterant fideicommissa capere ; 
et fere haec fuit origo fidei- 
commissorum. sed postea id 
prohibitum est ; et nunc ex 
oratione diui Hadriani senatus- 
consultum factum est, ut ea 
fidezcommissa fisco uindicaren- 
tur. 

286. Caelibes quoque, qui 
per legem luliam hereditates 
legataque capere prohibentur, 
olim fideicommissa uidebantur 
capere posse. 

286 a. Item orbi, qui per 
legem Papiam [ob id quod 
liberos non habebant] dimidias 
partes hereditatfum legatorum- 
que perdunt, olim solida fidei- 
commissa uidebantur capere 
posse, sed postea senatuscon- 
sulto Pegasiano proinde fidei- 
commissa quoque ac legata 
hereditatesque capere posse pro- 
hibiti sunt ; eaque translata 



281. Bequests expressed in 
Greek are invalid ; trusts ex- 
pressed in Greek are valid. 

282. An heir who disputes a 
legacy in the form of condemna- 
tion is sued for double the sum 
bequeathed ; but a trustee is only 
suable for the simple amount of 
the trust. 

28 3. On overpayment by mis- 
take in the case of a trust, the 
excess can be recovered back by 
the trustee ; but on overpayment 
from some mistaken ground of 
a bequest by condemnation, the 
excess cannot be recovered back 
by the heir ; and the law is the 
same in the case of what is not 
due at all, but which has been 
paid by some mistake or other. 

284. There formerly were 
other differences which no longer 
exist. 

285. Thus aliens could take 
the benefit of a trust, and this 
was the principal motive in which 
trusts originated, but afterwards 
they were incapacitated ; and now, 
by a decree of the senate passed 
on the proposition of Hadrian, 
trusts left for the benefit of aliens 
may be claimed by the fiscus. 

286. Unmarried persons, who 
are disabled by the lex Julia from 
taking inheritances or legacies, 
were formerly deemed capable of 
taking the benefit of a trust. 

286 a. And childless persons, 
who forfeit by the lex Papia, on 
account of not having children, 
half their inheritances and lega- 
cies, were formerly deemed capable 
of taking in full as beneficiaries 
of a trust. But at a later period 
the Sc. Pegasianum extended to 
trust dispositions the rules which 
attach to legacies and inheritances, 
transferring the trust property to 



ii. 260-289.] DE SINGVLIS REBVS FIDEICOMM. 263 



sunt ad eos, qui {in eo) testa- 
mento liberos habent, aut si 
nulhts liberos habebit, ad popu- 
lum, sicut iuris est in legatis et 
in hereditatibus,quae eadem aut 
simiK ex c&u(sa caduca fiunt. 

287. J)tem olini incertae 
personae uel postumo alieno 
per fideicommissum relinqui 
poterat, quamuis neque heres 
institui neque legari ei posset ; 
sed senatusconsulto, quod au- 
ctore ditto Hadriano factum est, 
idem in fideicommissis quod in 
legatis hereditatibusque consti- 
tutum est. 

288. Item poenae nomine 
iam non dubitatur nee per fidei- 
commissum quidem relinqui 
posse. 

289. Sed quamuis in mult^s 
iuris partibus longe latior causa 
sit fideicommissorum quam eo- 
rum quae directo relincuntur, in 
quibusdam tantumdem ualeant, 
tamen tutor non aliter testa- 
mento dari potest quam directo, 
ueluti hoc modo LIBERIS MEIS 

TITIVS TVTOB ESTO, uel ita LI- 
BERIS MEIS TITIYM TVTOREM DO; 

per fideicommissum uero dari 
non potest. 



those mentioned in the will who 
have children, and failing these 
to the people (aerarium), as hap- 
pens to legacies or inheritances 
which on the same or similar 
grounds become 'caduca.' 

287. So too, at one time, an 
uncertain person or an afterborn 
stranger could take the benefit of 
a trust, though he could neither 
take as heir nor as legatee, but a 
decree of the senate, passed on 
the proposition of the emperor 
Hadrian, made the law in this 
respect relating to legacies and 
inheritances applicable also to 
trusts. 

288. It is now clear that 
trusts cannot be left with the 
object of inflicting a penalty. 

289. Although in many 
branches of law trusts have an 
ampler scope than direct disposi- 
tions, while in others they are on 
a par, yet a testamentary guardian 
can only be appointed by direct 
nomination, as thus : ' Be Titius 
guardian to my children ; ' or 
thus : 'I nominate Titius guardian 
to my children ; ' he cannot be 
appointed by way of trust. 



265. Justinian declares that the heir is not forthwith released 
from his obligation by the owner's refusal to sell, but will be bound 
to seize any opportunity that may subsequently offer of purchasing 
and manumitting the slave in pursuance of the trust, Inst. 2, 24, 2. 

270 a. Codicils, as well as fideicommissa, according to Justinian, 
first acquired legal validity in the time of Augustus, who, being 
trustee under a codicil, set the example of performing the trust. 
The jurist Trebatius being consulted by Augustus, whether it was 
possible to give legal force to codicils without defeating the policy 
of testamentary law, gave a decided opinion in the affirmative ; and 
all scruples respecting the validity of codicils vanished when it 
became known that codicils had been left by the eminent jurist 
Labeo, Inst. 2, 25, pr. 



264 DE FIDEICOMMISSIS [n. 260-289. 

Codicillus is the diminutive of codex, and denotes the less im- 
portant and solemn documents or instruments of a man of business, 
a pocket-book, an agenda, a codicil ; as codex denotes the more 
important and formal documents, a journal, a ledger, a will. A 
codicil enabled a testator who had solemnly executed a will to add 
to or modify its dispositions without the necessity of re-execution. 
It was usual in a will to ratify any prior or subsequent codicils ; 
a codicil, however, might exist without any will. An informal will 
could only take effect as a codicil if such was the expressed intention 
of the testator. A codicil could not contain an institution or dis- 
inheritance or substitution ; but it might contain a trust for the 
transfer of the whole of an inheritance : and though a codicil could 
not contain a disinheritance, yet we have seen ( 147-151, comm.) 
that a codicillary declaration that the heir was unworthy produced 
confiscation or ereption of the inheritance for indignitas. A testator 
could only leave a single will, for a later will revoked a former ; 
but he might leave many codicils. A codicil needed no formalities, 
though Justinian required the attestation of five witnesses, not, 
however, as an essential solemnity, but as a means of proof : for, in 
the absence of five witnesses, the heir might be required to deny 
the existence of a trust upon his oath, Inst. 2, 23, 12. The admission 
of codicils was a departure from the rule requiring a unity in the 
act of testation. The concentration of his last will in a single act 
disposing simultaneously of all his property was no longer required of 
the testator. He now might distribute his fortune by way of legacy 
in a series of fragmentary or piecemeal and unrelated dispositions. 

278. Fideicommissa were enforced by persecutio, or the praetor's 
extraordinaria cognitio, 4 184, comm. 

279. The law terms at Kome during the greater part of the 
formulary period, were of two different kinds: (i) the juridical 
term or term for jurisdictio, and (2) the judicial term or term for 
trials. 

(1) The term for jurisdiction, that is, for the solemn acts of the 
praetor sitting on the tribunal in his court in the comitium, was 
that originally prescribed for the ancient legis actiones. The year 
was divided into forty dies fasti, unconditionally allotted to juridical 
proceedings, one hundred and ninety dies comitiales, available for 
juridical purposes unless required for the legislative assemblies, dies 
intercisi, of which certain hours were available for jurisdiction, and 
sixty dies nefasti, which were absolutely unavailable for juridical 
proceedings. 

(2) Judicia, or trials before a judex in the forum, were unaffected 
by dies fasti and nefasti, but dependent on another division, dies 
festi and profesti : dies festi (days devoted to feriae, ludi, epulae, 



ii. 260-289.] DE SINGVLIS REBVS FIDEICOMM. 265 

sacrificia) being exempted from litigation. Besides these occasional 
interruptions of litigation, there were longer set vacations, which 
we find rearranged on several occasions. Thus at one time we find 
two judicial terms (rerum actus, cum res aguntur) in the year, a 
winter and a summer term, and two vacations, one in spring and 
another in autumn. Claudius substituted a single vacation at the 
close of the year, and made the law term continuous. Rerum actum, 
divisum antea in hibernos aestivosque menses, conjunxit, Suetonius, 
Claudius, 23. Galba abolished this vacation, and confined the 
intervals of litigation to dies feriati. Marcus Aurelius, in the time 
of Gaius, abolished the distinction between the jurisdiction term 
(dies fasti) and the trial term (rerum actus). He devoted two hun- 
dred and thirty days (adding the number of dies fasti to the number 
of dies comitiales) to forensic proceedings, under the name of dies 
juridici or dies judiciarii, and allowed even the rest of the year, dies 
feriati, to be used for litigation with the consent of the parties. 
Judiciariae rei singularem diligentiam adhibuit: fastis dies judicia- 
ries addidit, ita ut ducentos triginta dies annuos rebus agendis 
litibusque disceptandis constitueret, Capitolinus, Marcus, 10. 'He 
also very carefully regulated the administration of justice, adding 
forensic days to the calendar, and allotting two hundred and thirty 
to litigation and civil suits.' 

Subsequently to the time of Gaius, a law of Valentinian, Theo- 
dosius, and Arcadius, A. D. 389, while it declared the principle that 
all days are dies juridici, excepted, besides Sundays and certain 
other holidays, two months for harvest and vintage, and two weeks 
at Easter. Justinian further appointed, by way of interpolation in 
this law, certain vacations at Christmas, Epiphany, and Pentecost, 
Cod. 3, 12, 6, thus furnishing the model on which the four English 
law terms were regulated by Edward the Confessor. Subsequently 
the Statute of Westminster, 13 Edward I, permitted assizes to 
be held in the vacations, and thus a distinction grew up in England 
somewhat resembling that of the jurisdictional (dies fasti) and judicial 
terms (rerum actus) ; with this difference, however, that the same 
judges presided both in their own court held at Westminster, and on 
assize, where they acted under commissions to try cases in the county 
in which the cause of action arose. Thus in England a judge, after 
sitting at Westminster during term, was able to go on circuit during 
part of the vacation ; but at Rome the distinction rested on the 
difference between proceedings in jure and in judicio. See Puchta, 
Institutionen, 158. 

280. After the time of Gaius the liability of a defendant to 
interest and profits (fructus) from the date on which he was guilty 
of MORA appears to have been extended to all legacies without ex- 



266 DE FIDEICOMMISSIS [n. 260-289. 

ception. Ex mora praestandorum fideicommissorum vel legatorum 
fructus et usurae peti possunt : mora autem fieri videtur cum po- 
stulanti non datur, Paulus 3, 8, 4. 'Delay of the heir to satisfy 
trusts and legacies entitles the cestui que trust and legatee to 
fruits and interest. Delay dates from the ineffectual demand of 
the creditor.' 

A demand, however, is not requisite when a term for payment 
was fixed in the disposition which gave rise to the debt (dies 
adjecta) : in other words, no interpellation is necessary in an obli- 
gation ex die, i. e. an obligatio with a dies adjecta ; for then Mora 
begins at the expiration of the term. This is expressed by modern 
jurists in the maxim, dies interpellat pro homine, ' the day demands 
instead of the creditor.' 

A further condition of Mora is the absence of all doubt and dis- 
pute, at least of all dispute that is not frivolous and vexatious, as 
to the existence and amount of the debt. Qui sine dolo malo ad 
judicem provocat non videtur moram facere, Dig. 50, 17, 63. 'An 
honest appeal to a judge is not deemed a mode of Delay.' 

The date of Mora must not be identified with that of the Nativity 
of an action (actio nata), an important date, as we shall see, in the 
doctrine of Limitation or Prescription of which it is the starting- 
point, a starting-point that may be antecedent to Mora. Mora 
generally cannot precede an interpellation or demand of payment : 
but the omission of a demand is precisely a part of that course of 
remissness and negligence whereby, under the rules of Prescription, 
a creditor ultimately forfeits his right to sue. Savigny, 239. 

Mora on the part of a person under an obligation to another obliges 
him to put the latter in as good a position as he would have been in 
if there had been no Mora. Hence the effect of Mora debitoris may 
be to make the debitor liable for fructus or interest. So again, if 
after Mora some accidental circumstance makes delivery of a thing 
impossible, the party bound to deliver it is not discharged from his 
liability, since if it had not been for Mora on his part, the plaintiff 
might have escaped loss by previous alienation of the thing, or in 
some other way. On the same principle, if a thing which a person is 
bound to deliver to another falls in value after Mora, he must pay 
the latter the highest value which could have been obtained for the 
thing at any time, since his default was established. Windscheid, 
1 280. 

Litis contestatio, joinder of issue between the parties to an action, 
another landmark of great importance in Roman jurisprudence in 
ascertaining and measuring the sanctioning rights and obligations 
of suitors, 3 180, comm., may be regarded as a kind of bilateral 
Disposition to be classed among Quasi-contracts. The consequences, 



n. 260-289.1 DE SINGVLIS REBVS FIDEICOMM. 267 

2 * _1 

however, of litis contestatio, in spite of difference of character, are 
to some extent similar to those of Mora. For in the event of con- 
demning the defendant the judex has to regard the relations of the 
parties, as if restitution had been made at the time of litis contestatio. 
Hence a bona fide possessor is liable from this date for all fructus, 
although he was not previously liable for such as he had consumed. 
4 114, comm. 

283. Money paid by mistake was not recoverable when the 
payer was liable to be sued for double damages, as in the actio 
legati per damnationem, Inst. 3, 27, 7, because then the payment is 
not deemed to be a mistake, but a compromise, in order to avoid the 
chance of condemnation in double damages. The laws protecting 
certain rights by duplication of damages, 4 171, would have been 
evaded if a debtor was allowed to pay the simple damages and then 
attempt to recover them back by condictio indebiti soluti. 

285. So by English law aliens were not, till recently, allowed 
to purchase real property or to take it by devise. Such property, 
purchased by an alien or devised to an alien, was forfeited to the 
crown. An alien, however, could hold personal property and take 
bequests of personal property. In France, formerly, an alien was 
not allowed to make a will, but all his property at his death escheated 
to the crown by the droit d'aubaine. [Aubain is from alibanus. 
Alibi in barbarous Latin produced alibanus, just as longiter produced 
lontanus and ante antianus. Diez.] 

289. Justinian, following the tendency of previous legislation, 
abolished the distinction between legacies and trusts, enacting that 
legacies should no longer be governed by the rigours of the civil 
law, but subject to the same rules and construed with the same 
liberality as trusts, Inst. 2, 20, 2 and 3 Nostra autem constitutio (Cod. 6, 
43, 1), quam cum magna fecimus lucubratione, defunctorum voluntates 
validiores esse cupientes et non verbis, sed voluntatibus eorum 
faventes, disposuit, ut omnibus legatis una sit natura et, quibuscunque 
verbis aliquid derelictum sit, liceat legatariis id persequi non solum 
per actiones personales, sed etiam per in rem et per hypothecariam 
. . . Sed non usque ad earn constitutionem standum esse existi- 
mavimus, cum enim antiquitatem invenimus legata quidem stricte 
concludentem, fideicommissis autem, quae ex voluntate magis descen- 
debant defunctorum, pinguiorem naturam indulgentem : necessarium 
esse duximus omnia legata fideicommissis exaequare, ut nulla sit 
inter ea differentia. 

By English law, a will of realty operates as a mode of conveyance 
and document of title without probate, but since the Land Transfer 
Act, 1897, it is usually proved. A will of personalty requires for 
its authentication to be proved before a court by the oath of the 



268 DE FIDEICOMMISSIS [n. 260-289. 

executor arid, unless the attestation clause is in a certain form, by 
the affidavit of one of the subscribing witnesses j or, if the validity 
of the will is disputed, by examination of the witnesses on oath in 
the presence of the parties interested. The will itself is deposited 
in the registry of the Court of Probate ; a copy of it in parchment, 
under the seal of the Court of Probate, delivered to the executor 
along with a certificate of proof, is the only proper evidence of his 
right to intermeddle with the personal estate of the testator. 

The following were the corresponding formalities of Eoman law 
prescribed by lex Julia vicesimaria : Paulus, Sent. Kec. 4, 6 : 

' A will is opened in the following manner : the witnesses, or the 
majority, who affixed their seals, are summoned and acknowledge 
their seals, the cord is broken, the tablets are opened, the will is 
read, a copj r is taken, a public seal is affixed to the original, and it 
is deposited in the archives, so that if the copy is ever lost there 
may be a means of making another. 

'In municipalities, colonies, towns, prefectures, wicks, castles, 
market towns, a will must be read in the forum or basilica, in the 
presence of the attesting witnesses or of respectable persons, between 
eight o'clock in the morning and four o'clock in the afternoon ; and, 
as soon as a copy has been made, must be sealed up again by the 
magistrate in whose presence it was opened. 

'A will is intended by the law to be opened immediately after 
the death of the testator ; accordingly, though rescripts have varied, 
it is now the rule that, if all the parties are present, three or five 
days is the interval within which the tablets must be opened ; if 
they are absent, the same number of days after they are assembled ; 
in order that heirs, legatees, manumitted slaves, and the military 
treasury (entitled, 3 125, to vicesima hereditatum, i. e. 5 per cent, 
on the value of Roman citizens' testamentary successions), may come 
into their rights without unnecessary delay.' 

In cases of urgency, when the will was opened in the absence 
of the attesting witnesses in the presence of respectable persons, it 
was afterwards forwarded to the witnesses for the verification of 
their seals, Dig. 29, 3, 7. Every one who desired it had the power 
of inspecting a will and taking a copy, Dig. 29, 3, 8. 



COMMENTARIYS TERTIVS 



INTESTATORVM HEREDITATES 



1. Intestatorum hereditates 

(ex) lege xu tabularum pri- 

mum ad suos heredes pertinent. 

Inst. 3,1,1. l;Collat. 16,2,1. 

2. Sui autem heredes existi- 
mantur liberi qui in potentate 
morientis fuerunt, ueluti filius 
filiaue,nepos neptisue (exfilio), 
pronepos proneptisue ex nepote 
filio nato prognatus progna- 
taue. nee interest (ntr-urn) 
naturales (sinty liberi an 
adoptiui. ita demum tamen 
nepos neptisue et pronepos 
proneptisue suorum heredum 
numero sunt, si praecedens 
persona desierit (in potentate 
parentis esse, sine morte id 
acciderit,y siue alia ratione, 
ueluti emancipatione. nam si 
per id tempus quo quisque 
moritur filius in potestate eius 
sit, nepos ex eo suus heres esse 
non potest. idem et in ceteris 
deinceps liberorum personis 
dictum intellegemus. 

Inst. 3, 1, 1. 2; CoUat. 16, 2, 2. 

3. Vxor quoque quae in 
manu uiri est ei sua heres est, 
quia filiae loco est. item nu- 
rus quae in filii manu est, 
nam et haec neptis loco est. 
sed ita demum erit sua heres, 
(si) filius, cuius in manu 
fuerit, cum pater moritur, in 



1. Intestate inheritances by 
the law of the Twelve Tables 
devolve first on self-successors 
(sui heredes). 

2. Self-successors are children 
in the power of the deceased at 
the time of his death, such as 
a son or a daughter, a grandchild 
by a son, a great-grandchild by a 
grandson by a son, whether such 
children are natural or adoptive : 
subject, however, to this reserva- 
tion, that a grandchild or great- 
grandchild is only self-successor 
when the person in the preceding 
degree has ceased to be in the 
power of the parent either by 
death or some other means, such 
as emancipation ; for instance, if 
a son was in the power of the 
deceased at the time of his death, 
a grandson by that son cannot 
be a self-successor, and the same 
proviso applies to the subsequent 
degrees. 



3. A wife in the hand of her 
husband is a self-successor to him, 
for she is in the position of a quasi 
daughter ; also a son's wife in 
the hand of the son, for she is a 
granddaughter: subject, however, 
to the proviso that she is not 
self-successor if her husband is 






270 



SVCCESSIO PER VNIVERSITATEM [in. 1-8. 



potentate eius non sit. idemque 
dicemus et de ea quae in nepotis 
manu matrimonii causa sit, 
quia proneptis loco est. 

Collat. 16,2,3. 

4. Postumi quoque, {qui} 
si uiuo parente nati essent, in 
potestate eius futuri forent, sui 
heredes sunt. 

Inst. I.e.; Collat. 16,2,4. 

5. Idem iuris est de his, 
quorum nomine ex lege Aelia 
Sentia uel ex senatusconsulto 
post mortem patris causa pro- 
batur. nam et hi uiuo patre 
causa probata in potestate eius 
futuri essent. 

Collat. 16, 2, 5 ; cf. Collat. 3, 7. 

6. Quod etiam de eo filio, 
qui ex prima secundaue manci- 
pations post mortem patris 
manumittitur, intellegemus. 

7. Igitur cum filius filiaue 
et ex alter o filio nepotes nep- 
tesue extant, pariter ad here- 
ditatem uocantw ; nee qui 
gradu proximior est, ulteriorem 
excludit. aequum enim uide- 
batur nepotes neptesue in patris 
sui locum portionemque suc- 
cedere. pari ratione et si nepos 
neptisue sit ex filio et ex nepote 
pronepos >roneptisue, simul 
omnes uocantur ad heredita- 
tem. Inst. 3, 1,6. 

8. Et quia placebat nepotes 
neptesue, item pronepotes pro- 
neptesue in parentis sui locum 
succedere, conueniens esse ui- 
sum est non in capita, sed (m) 
stirpes hereditatem diuidi ; ita 
ut filius partem dimidiam here- 
ditatis ferat et ex altero filio 
duo pluresue nepotes alteram 
dimidiam ; item si ex duobus 



in the power of his father at the 
time of his father's death. A 
wife in the hand of a grandson 
is a self-successor, subject to the 
same proviso, because she is in 
the position of a great-grand- 
daughter. 

4. Afterborn children, who, 
if born in the lifetime of the 
parent, would have been subject 
to his power, are self-successors. 

5. Also those in whose behalf 
the provisions of the lex Aelia 
Sentia or the senatusconsult have 
been satisfied by proof of ex- 
cusable error subsequently to 
the death of the parent, for if 
the error had been proved in the 
lifetime of the parent they would 
have been subject to his power. 

6. Also, a son, who has under- 
gone a first or second mancipa- 
tion and is manumitted after the 
death of the father, is a self-suc- 
cessor. 

7. Accordingly, a son or 
daughter and grandchildren by 
another son are equally called 
to the inheritance ; nor does the 
nearer grade exclude the more 
remote, for justice seemed to dic- 
tate that grandchildren should 
succeed to their father's place 
and portion. Similarly, a grand- 
child by a son and a great-grand- 
child by a grandson by a son are 
called contemporaneously to the 
inheritance. 

8. And as it was deemed 
to be just that grandchildren 
and great-grandchildren should 
succeed to their father's place, 
it seemed consistent that the 
number of stems (stirpes), and 
not the number of individuals 
(capita), should be the divisor of 
the inheritance ; so that a son 
should take a moiety, and grand- 



in. 1-8.] INTESTATORVM HEKEDITATES 



271 



filiis nepotes extend, ex altero 
filio unus forte uel duo, ex 
altero tres aut quattuor, ad 
unum aut ad duos dimidia pars 
pertineat et ad tres aut quattuor 
altera dimidia. Inst. 1. c. 



children by another son the other 
moiety ; or if two sons left 
children, that a single grandchild 
or two grandchildren by one 
son should take one moiety, and 
three or four grandchildren by 
the other son the other moiety. 

1. The words 'testate' and 'intestate,' in the language of 
English lawyers, are only applicable, I believe, to a deceased 
person. The awkwardness of having no corresponding adjectives 
to couple with succession or inheritance must be my apology for 
sometimes speaking of testate or intestate succession or inheritance. 

2. For the meaning of suus heres see commentary on 2 157, 
123. 

5. Cf. 1 29, 32 ; 2 142. 

6. Cf. 1 132; 2 141. 

DE LEGITIMA AGNATORYM SVCCESSIONE. 



9. Si nullus sit suorum 
heredum, tune hereditas per- 
tinet ex eadem lege xn tabu- 
lar um ad agnatos. 

Inst. 3, 2, pr.; Gaius in 
Collat. 6, 2, 9. 

] 0. Fbcantur autem agnati, 
qui legitima cognatione iuncti 
sunt. legitima autem cognatio 
est ea, quae per uirilis sexus 
personas coniungitur. itaque 
eodem >atre nati fratres agnati 
sibi sunt, qui etiam consan- 
guinei uocantur, nee requiritur 
an etiam matrem eandem ha- 
buerint. item patruus fratris 
filio et inuicem is illi agnatus 
est. eodem numero sunt fratres 
patrueles inter se, id est qui ex 
iduobus fratribus progenerati 
Bunt, quos plerique etmm con- 
sobrinos uocant. qua ratione 
scilicet etiam ad plures gradus 
agnationis peruenire poterimus. 
Inst. 3,2, 1 ; Gaius in Collat. 
6, 2, 10. 

11. Non tamen omnibus 
simul agnates dat lex xn tabu- 
larum hereditatem, sed his qui 



9. If there is no self-suc- 
cessor, the inheritance devolves 
by the same law of the Twelve 
Tables on the agnates. 

10. Those are called agnates 
who are related by civil law. 
Civil relationship is kinship 
through males. Thus brothers 
by the same father are agnates, 
whether by different mothers or 
not, and are called consangui- 
neous ; and a father's consan- 
guineous brother is agnate to the 
nephew, and vice versa ; and the 
sons of consanguineous brothers, 
who are generally called conso- 
brini, are mutual agnates ; so 
that there are various degrees of 
agnation. 



11. Agnates are not all 
called simultaneously to the in- 
heritance by the law of the 



272 SVCCESSIO PER VNIVERSITATEM [m. & 9-17. 

L a 3 



turn, cum certum est aliquem 
intestatum decessisse, proximo 
gradu sunt. Inst. 3, 2, 2 ; Gaius 
inCollat. 16,2, 11. 

12. Nee in eo iure successio 
est. ideoque si agnatus proxi- 
mus hereditatem omiserit uel 
antequam adierit decesserit, se- 
quentibus nihil iuris ex lege 
conpetit. 

Gaius in Collat. 16, 2, 12. 

13. Ideo autem non mortis 
tempore quis proximus fuerit 
requirimus, sed eo tempore, quo 
certum fuerit aliquem intesta- 
tum decessisse, quia si quis 
testamento /acto decesserit, me- 
lius esse uisum est tune requiri 
proximum, cum certum esse 
coeperit neminem ex eo testa- 
mento fore heredem. Inst. 
1. c.; Gaius in Collat. 16, 2, 13. 

14. Quod ad feminas tarn en 
attinet, in hoc iure aliud in 
ipsarum hereditatibus capiendis 
placuit, aliud in ceterorum 
[bonis] ab his capiendis. nam 
feminarum hereditates proinde 
ad nos agnationis iure redeunt 
atque masculorum ; nostrae 
uero hereditates ad feminas 
ultra consanguineorum gradum 
non pertinent, itaque soror 
fratri sororiue legitima heres 
est, amita uero et fratris filia 
legitima heres esse (non potest. 
soror is autem nobis loco est} 
etiam mater aut nouerea, quae 
per in manum conuentionem 
apud patrem nostrum iura filiae 
nacta est. Inst. 3, 2, 3 ; Gaius 
in Collat. 16, 2, 14. 



15. Si ei qui defunctus erit, 
sit frater et alterius fratris 
filius, sicut ex superioribus 



Twelve Tables, but only those 
of the nearest degree at the 
moment when it is certain that 
the deceased is intestate. 

12. And in title by agnation 
there is no succession ; that is to 
say, if an agnate of the nearest 
grade abstains from taking the 
inheritance, or die before he has 
entered on it, the agnates of the 
next grade do not become en- 
titled under the statute. 

13. The date for determining 
the nearest agnate is not the 
moment of death, but the mo- 
ment when intestacy is certain, 
because it seemed better, when 
a will is left, to take the nearest 
agnate at the moment when it is 
ascertained that there will be no 
testamentary heir. 



14. As to females, the rules 
of civil law are not the same in 
respect of the inheritances which 
they leave and in respect of the 
inheritances which they take. 
An inheritance left by a female 
is acquired by the same title of 
agnation as an inheritance left 
by a male, but an inheritance 
left by a male does not de- 
volve on females beyond sisters 
born of the same father. Thus 
a sister is by civil law the 
heir of a sister or brother by the 
same father, but the sister of a 
father and daughter of a brother 
have no civil title to the inheri- 
tance. The same rights as those 
of a sister belong to a mother or 
stepmother who passes into the 
hand of a father by marriage 
and acquires the position of a 
daughter. 

15. If the deceased leaves a 
brother and another brother's 
son, as observed before ( ll) t 



m. 9-17.] DE AGNATORVM SVCCESSIONE 



273 



intellegitur, frater potior est, 
quia gradu praecedit. sed alia 
facta est iuris interpretatio 
inter suos heredes. Inst.3,2,5; 
Gaius in Collat. 16, 2, 15. 

16. Quodsi defuncti nullus 
frater extet, {sed) sint liberi 
fratrum, ad omnes quidem here- 
ditas pertinet; sed quaesitum 
est, si dispari forte numero sint 
nati, ut ex uno unus uel duo, 
ex altero tres uel quattuor, 
utrum in stirpes diuidenda sit 
hereditas, sicut inter suos here- 
des iuris est, an potius in capita, 
iam dudum tamen placuit in 
capita diuidendam esse heredi- 
tatem. itaque quotquot erunt 
ab utraque parte personae, in 
tot portiones hereditas diuide- 
tur, ita ut singuli singulas por- 
tiones ferant. 

Gaius in Collat. 16, 2, 16. 

17. Si nullus agnatus sit, 
eadem lex xii tabularurn gen- 
tiles ad hereditatem uocat. qui 
sint autem gentiles, primo com- 
mentario rettulimus ; et cum 
illic admonuerinius to turn gen- 
tilicium ius in desuetudinem 
abiisse, superuacuum est hoc 
quoque loco de eadern re curio- 
sius tractare. 



the brother has priority, because 
he is nearer in degree, which 
differs from the rule applied to 
self -successors. 

1 6. If the deceased leaves no 
brother, but children of more 
than one brother, they are all 
entitled to the inheritance; and 
it was once a question, in case 
the brothers left an unequal 
number of children, as if one of 
them leaves only one child and 
another three or four, whether the 
number of stems (stirpes) was to 
be the divisor of the inheritance, 
as among self-successors, or the 
number of individuals (capita) ; 
however, it has long been settled 
that the divisor is the number 
of individuals. Accordingly, the 
total number of persons deter- 
mines the number of parts into 
which the inheritance must be 
divided, and each individual takes 
an equal portion. 

1 7. In the absence of agnates 
the same law of the Twelve 
Tables calls the gentiles to the 
inheritance. Who are gentiles 
was explained in the first book 
(1 164 a), and as we then stated 
that the whole law relating to 
gentiles is obsolete, it is unneces- 
sary to go into its details on the 
present occasion. 



9. The term agnatio has already occurred (2 131) in the 
exposition of testacy, where it denoted the birth of a suus heres, 
and here in the doctrine of intestacy it has an allied signification. 
The same persons who in relation to a common ancestor are sui 
heredes, in relation to one another are agnati. Agnates, accordingly, 
may be described as all the members of a civil family, cf. 1 156 ; 
but then we must add that the civil family may either be actual or 
ideal, meaning by ideal either a civil family once actual but disinte- 
grated by the death of the paterfamilias, or a civil family, which 
was never actually subject to a common paterfamilias, but which 
would be so if we imagine a deceased common ancestor to be alive. 
While the common ancestor survives, the bonds of agnation are close, 



274 SVCCESSIO PER VNIVERSITATEM [m. 9-17. 

and the family is actual ; after his death, when his descendants 
have formed separate families, all the members of those families are 
still agnates, because they are members of an ideal family which 
once was actual ; and the descendants of those descendants are 
more remotely agnates, because, though never members of an actual 
family, they would have been so if the common ancestor had lived 
for, say, a hundred years. Similarly the wider group of gentiles, 
17, consists of persons who, it may be supposed, would be under 
the power of some long-forgotten common ancestor, if he were alive. 

The words of the Twelve Tables creating title by agnation are 
as follow : Si intestato moritur, cui suus heres nee escit, adgnatus 
proximus familiam habeto. ' If a man die intestate, leaving no self- 
successor, his nearest agnate shall have the family property.' 

10. Consanguinei, brothers or sisters of the same father, opposed 
to uterini, brothers or sisters by the same mother, are properly 
included among agnates, if they have not undergone any capitis 
deminutio, being agnates of the first degree; but as females were 
only entitled to inherit by the first degree of agnation, 14, the 
word 'agnates' was sometimes limited to denote male agnates. 
Agnati autem sunt cognati virilis sexus per virilem descendentes, 
Paulus, Sent. Eec. 4, 8, 13. 'Agnates are male cognates related 
through males.' It is to be remembered that the tie of agnation 
embraced persons who were adopted into a family, as well as such 
natural relations or cognates as came within its principle. 

12. If the nearest degree of agnates in existence omitted to 
take the inheritance, or died before acceptance, the inheritance did 
not devolve on the next degree of agnates ; thus the jus civile 
did not admit a successio graduum, as for instance if a man died 
intestate leaving a brother and a nephew, the son of a deceased 
brother, and the surviving brother did not enter on the inheritance, 
the right to do so did not pass from him to the nephew, who was 
next in succession but remained vacant, no repudiation of hereditas 
delata being it would seem possible in early law. This rule was 
a scrupulous interpretation of the exact words of the Twelve Tables : 
Si intestato moritur cui suus heres nee escit, adgnatus proximtis 
familiam habeto. As the law of inheritance based on the Twelve 
Tables found no place for a successio graduum, so neither did it 
admit a successio ordinum. Thus if the proximus agnatus, or 
proximi agnati, abstained from taking the inheritance, the order 
of gentiles, which was next by civil law to that of the agnates, could 
make no claim to it. ' In legitimis hereditatibus successio non est.' 
The abeyance of the inheritance arising from these circumstances 
was cut short by usucapio pro herede, 2 52, &c. But a more suitable 
way of obviating this inconvenience of the ancient law was found in 



in. 9-17.] DE AGNATOKVM SVCCESSIONE 275 

the bonorum possessio of the praetor, whereby in default of any one 
claiming by a valid civil title, the nearest blood relation, or cognate, 
was put in the position of heir. Under these praetorian rules of 
inheritance, at least when they were not simply confirmatory of the 
civil law, cf. 28, both successio graduum and successio ordinum 
were possible. Justinian, however, abolished the rule of the civil law 
itself, and allowed a devolution through the degrees of agnation, on the 
ground that, as the burden of tutela devolved through the degrees of 
agnation, there ought to be a corresponding and compensating devolu- 
tion of the advantages of inheritance, Inst. 3, 2, 7. This change, how- 
ever, was deprived of importance by the subsequent Novella, 1 18, which 
consolidated and amended the law of inheritance, discardingthe agnatic 
principle of the old law, and substituting for it that by cognatio. 

1 3. The moment at which it is ascertained that the deceased is 
intestate will be separated by an interval from the moment of his 
decease, especially when the intestacy is caused by an heir instituted 
in a will not accepting within the time of cretio or by his subsequent 
repudiation or incapacity, or by the failure of the condition on which 
he was instituted. In this interval the nearest agnate may die, and 
a remoter agnate become the nearest agnate. It therefore was 
necessary to determine whether the title of nearest agnate is acquired 
at the moment of decease or of ascertained intestacy ; and the latter 
moment was selected. If the death of the testator had been selected, 
then, if the nearest agnate died in the interval, there would be no 
heir; neither the heir of the deceased, as the right to enter was 
strictly personal, nor the then next agnate, as proxumus, the word 
used in the Twelve Tables, excludes successio graduum: nor the 
gentiles, as the words (si adgnatus nee escit) exclude successio ordinum. 

14. The limitation, in respect of females, of title by agnation 
to females who were agnates in the first degree (consanguineae) was 
not contained in the Twelve Tables, but introduced by the restrictive 
interpretation of jurists following the analogy of the lex Voconia 
(B.C. 169), which imposed disabilities on women, Paulus, Sent. 
Rec. 4, 8, 22. Cf. Inst. 3, 2, 3 Media autem jurisprudentia, 
quae erat lege quidem duodecim tabularum junior, imperiali autem 
dispositione anterior, subtilitate quadam excogitata, praefatam dif* 
ferentiam inducebat. The harshness of this limitation was miti- 
gated by the praetors, who introduced title by cognation, and 
allowed females of remoter degrees of agnation to succeed in the 
order of cognates in default of heirs by title of agnation; but 
Justinian totally abolished the limitation, and restored the rule 
of the Twelve Tables, allowing females to succeed in the order of 
agnates, however remote might be their degree of agnation, pro- 
vided that no nearer degree was in existence. 

T 2 



276 SVCCESSIO PER VNIVERSITATEM [in. 18-38. 

The celebrated Novella, 118, as above stated, totally abolished 
title by agnation, and made succession by intestacy among collaterals 
dependent on the degrees of cognation or nearness of natural re- 
lationship. In this system of inheritance, from which our own law 
for the distribution of personalty is derived, no difference is made 
between males and females. 



18. Hactenus lege xu tabu- 
larum finitae sunt intestatorum 
hereditates. quod ius queinad- 
modum strictum frierit, palam 
est intellegere. 

19. Statim enini emancipati 
liberi nullum ius in hereditatem 
parentis ex ea lege habent, cum 
desierint sui heredes esse. 



20. Jdem iuris est, si ideo 
liberi non sint in potestate pa- 
tris, quia sint cum eo ciuitate 
J?omana donati nee ab impera- 
tore in potestatem redacti fue- 
rint. 



21. Item agnati capite de- 
minuti non admittuntur ex ea 
lege ad hereditatem, quia nomen 
agnationis capitis deminutione 
perimitur. 

22. Item proximo agnato 
non adeunte hereditatem nihilo 
magis sequens iure legitimo ad- 
mittitur. 

23. Item feminae agnatae, 
quaecumque consanguineorum 
gradum excedunt, nihil iuris ex 
lege habent. 

24. Similiter non admit- 
tuntur cognati, qui per feminini 
sexus personas necessitudine 
iunguntur; adeo quidem, ut nee 
inter matrem et filium filiamue 



18. These are all the pro- 
visions in the law of the Twelve 
Tables for intestate devolution, 
and how strictly they operated 
is patent. 

19. For instance, children 
immediately they are emanci- 
pated have no right to the in- 
heritance of their parent under 
that law, since they are thereby 
divested of the character of 
self-successors. 

20. In the same position also 
are children whose freedom from 
the power of their parent was 
only caused by the fact that on 
their receiving jointly with their 
father a grant of Koman citizen- 
ship (1 94), there was no express 
order of the emperor subjecting 
them to parental power. 

21. Again, agnates who have 
undergone a capitis deminutio are 
not admitted to the inheritance 
under this law, title by agnation 
being extinguished by capitis 
deminutio. 

22. And if the nearest agnate 
does not enter on an inheritance, 
the next degree, according to the 
law of the Twelve Tables, is not 
in any way entitled to succeed. 

23. Female agnates beyond 
the degree of sisters by the same 
father have no title to succeed 
under this statute. 

24. Cognates who trace their 
kin through females are similarly 
barred, so that even a mother and 
a son or daughter have no re- 
ciprocal right of succession, un- 



in. 18-38.] BONORVM POSSESSIO INTESTATI 277 



ultro citroque hereditatis ca- 
piendae ius conpetat, praeter- 
quam si per in manum conuen- 
tionem consanguinitatis iura 
inter eos constiterint. 

25. Sed hae iuris iniquitates 
edictopraetoris emendataesunt. 

26. Nam liberos omnes, qui 
legitimo iure deficiuntur, uocat 
ad hereditatem, proinde ac si 
in potestate parentis mortis 
tempore fuissent, siue soli sint 
siue etiam sui heredes, id est 
qui in potestate patris fuerunt, 
concurrant. Inst. 3, 1, 9. 

27. Agnatos autem capite 
deminutos non secundo gradu 
post suos heredes uocat, id est 
non eo gradu uocat, quo per 
legem uocarentur, si capite de- 
minuti non essent, sed tertio 
proximitatis nomine; licet enim 
capitis deminutione ius legiti- 
mum perdiderint, certe cogna- 
tionis iura retinent. itaque si 
quis alius sit qui integrum ius 
agnationis habebit, is potior 
erit, etiamsi longiore gradu 
fuerit. Inst. 3, 5,1. 



28. Idem iuris est, ut qui- 
dam putant, in eius agnati per- 
sona, qui proximo agnato omit- 
tente hereditatem nihilo magis 
iure legitimo admittitur. sed 
sunt qui putant hune eodem 
gradu a praetore uocari, quo 
etiam per legem agnatis here- 
ditas datur. 

29. Feminae certe agnatae, 
quae consanguineorum gradum 
excedunt, tertio gradu uocantur, 
id est si neque suus heres neque 
agnatus ullus erit. Inst. 3, 5,2. 



less by subjection to the hand 
of the husband the mother has 
become a quasi sister to her 
children. 

25. But to these legal in- 
equalities the edict of the praetor 
administers a corrective. 

26. For all children whose 
statutory title fails are called by 
the praetor to the inheritance, just 
as if they had been in the power 
of their parent at the time of his 
decease, whether they come in 
alone or in concurrence with self- 
successors, that is, with other chil- 
dren who were actually subject to 
the power of the parent. 

27. Agnates who have under- 
gone a capitis deminutio minima 
are called by the praetor, not in- 
deed in the next degree to self-suc- 
cessors, that is, in the order in 
which the law of the Twelve 
Tables would have called them 
but for their capitis deminutio, 
but in the third rank under the 
designation of cognates (next of 
kin) ; for though their capitis 
deminutio has blotted out their 
statutory title, they nevertheless 
are still entitled as cognates ; 
though if another person exists 
with unimpaired title by agnation, 
he is called in preference, although 
he may be in a remoter degree. 

28. The rule is similar, ac- 
cording to some, in respect of 
the remoter agnate who has no 
statutory title to succeed on the 
nearest agnate failing to take ; 
according to others, the praetor 
calls him to the succession in the 
order allotted by the statute to 
agnates. 

29. Female agnates, at all 
events, beyond the degree of 
sisters are called in the third 
degree, that is to say, after self- 
successors and other agnates. 



278 SVCCESSIO PER VNIVERSITATEM [in. 18-38. 



30. Eodem gradu uocantur 
etiam eae personae, quae per 
feminini sexus personas copu- 
latae sunt. Inst. 1. c. 

31. Liberi quoque qui in 
adoptiua familia aunt ad natu- 
ralium parentum hereditatem 
hoc eodem gradu uocawtur. 

Inst. 3, 5, 3. 

32. Quos autem praetor 
uocat ad hereditatem, hi heredes 
ipso quidem iure non | fiunt ; 
nam praetor heredes facere non 
potest ; per legem \ enim tantum 
uel similem iuris constitu- 
tionem heredes fi\\int, ueluti 
per senatusconsultum et con- 
stitutionem principalem. sed 
cum eis praetor (dot bonorum 
possessionem} , loco heredum 
cowstituuntur. 

33. | A.dhuc autem etiam. 
alios conplures gradus praetor 
facit in \ bonorum y^ossessioni- 
bus dandis, dum id &git, ne 
quis sine successore \ moriatur. 
de quibus in his commentariis 
consulto | non agimus, cum hoc 
ius totum propriis commentariis 
ex\ecuti simus. 

33 a. Hoc solum admo- 
nuisse sufficit 1 



hereditatem 



ta- 



innidiosum. 



per\ 



in manum coTiueTitionem iura 
consanguim'ais najcta 
fratre 



(5 uersus in G legi nequeunt) 

(8 uersus in C legi nequeunt) 
nam I 



| heredit&s non pertine-| 

(8 uersus in C legi ne- 
queunt) 1 

33 6. Aliquando tamen ne- 
que emendandi neque inpu- 
gnandi ueteris iuris sed \ magis 



30. So are those persons 
who trace their kindred through 
females. 



31. Children in an adoptive 
family are called to succeed their 
natural parents in the same order. 



32. Those whom the praetor 
calls to an inheritance do not be- 
come heirs (heredes) at civil law, 
for the praetor cannot make an 
heres ; only a statute or similar 
ordinance, such as a decree of the 
senate or an imperial constitution, 
being able to do so ; thus the 
praetor's grant of possession only 
puts the grantee in the position 
of an heir. 



33. Several additional grades 
of bonorum possessio are recog- 
nized by the praetor on account 
of his desire that no one may die 
with out a successor; but I forbear 
to examine them on the present 
occasion, because I have handled 
the whole subject of title by 
descent in a separate treatise 
devoted to this matter. 

33 a. [?Sc. Tertullianum; cf. 
Inst. 3, 3 ; Ulp. 26, 8.] 



33&. Sometimes, however, the 
object of the praetor in granting 
bonorum possessio is rather to 



in. 18-38.] BONORVM POSSESSIO INTESTATI 279 



confirmandi gratia pollicetur 
bonorum possessionem. nam 
ttlis quoque, \ qui recfe facto 
testamento heredes instituti 
sunt, | dat secundum tabulas 
bonorum possessionem. 

34. item ab intestato here- 
des suos et agnafos ad bonorum 
possessionem uocat. quibus 
casibus beneficium eius in eo 
solo uidetur aliquam utilitatem 
habere, ut is, qui ita bonorum 
possessionem petit, interdicto 
cuius principium est QVORVM 
BONORVM uti possit. cuius in- 
terdicti quae sit utilitas, suo 
loco proponemus. alioquin re- 
mota quoque bonorum posses- 
sione ad eos hereditas pertinet 
iure ciuili. 

35. Ceterum saepe quibus- 
dam ita datur bonorum posses- 
sio, ut is cui data sit (mm) 
optineat hereditatem ; quae bo- 
norum possessio dicitur sine re. 

36. Nam si uerbi gratia 
iure facto testamento heres in- 
stifatus creuerit hereditatem, 
sed bonorum possessionem se- 
cundum tabulas testamenti pe- 
tere noluerit, contentus eo quod 
iure ciuiH heres sit, nihilo mi- 
nus ii, qui nullo facto testa- 
mento ad intestati bona uocan- 
tur, possunt petere bonorum 
possessionem ; sed sine re ad 
eos [hereditas] pertinet, cum 
testamento scriptus heres euin- 
cere hereditatem possit, 

37. Idem iuris est, si inte- 
stato aliquo mortuo suus heres 
no\\uent petere bonorum pos- 
sessionem, contentus legitimo 

iure 1 et agnato conpetit 

quidem bonorum possessio, sed 
sine re, quia euinci hereditas a 
suo herede potest. et [illud] 
conuenienter, si ad agnatuin 



confirm the old law than to amend 
or contradict it, for he likewise 
gives juxta-tabular possession to 
those who have been instituted 
heredes in a legally valid will. 

34. So also, when a man dies 
intestate, the praetor grants bono- 
rum possessio to self-successors 
and agnates, the only advantage 
they derive from the grant being 
that it entitles them to the inter- 
dict beginning with the words : 
' Whatsoever portion of the 
goods ' (the use of which will be 
explained in due time and place, 
4 144), for independently of the 
grant of possession, they are en- 
titled to the inheritance by the 
civil law. 

35. Possession is often granted 
to a person who will not in fact 
obtain the inheritance, in this 
case the grant is said to be one 
which has no eifect (sine re). 

36. For instance, if an heir 
instituted by a duly executed will 
formally accepts the inheritance, 
but declines to demand possession 
according to the will, contenting 
himself with his title at civil 
law, those who without a will 
would be entitled by intestacy may 
nevertheless obtain a grant of 
possession from the praetor, but 
the grant will be one having 
no effect (sine re), because the 
testamentary heir can enforce his 
civil title to the inheritance 
against them. 

37. The same happens when 
a man dies intestate and a self- 
successor declines to demand pos- 
session, contenting himself with 
his civil title ; for an agnate may 
obtain a grant of possession, but 
it will have no effect, because the 
civil inheritance can be claimed 
by the self-successor. Similarly, 



280 SVCCESSIO PER VNIVERSITATEM [in. 18-38. 

iure ciuili pertinet hereditas et if an agnate entitled by civil law 

is adierit hereditatein, sec? bo- accepts the civil inheritance but 

no rum possessionem petere no- omits to demand possession, a 

luerit, et [si quis ex proximis] cognate can obtain a grant of 

cognatuspetierit,smerehabebit possession, but it has no effect, 

bonorum possessionem propter for tlae same reason - 
eandem rationem. 

38. Sunt et alii quidam 38. There are other similar 

similes casus, quorum aliquos cases, some of which were men- 

superiore commentario tradidi- tioned in the preceding book, 
mus. 

25. To the divergence of the civil (agnatio) and natural (cognatio) 
families, to the desire, that is, to correct the non-natural devolution 
of successions, Sir Henry Maine attributes the introduction in Koman 
jurisprudence of Testamentary dispositions (Ancient Law, ch. vi). 

32. The praetor, by virtue of his executive power (imperium) : 

(1) Gave bonorum possessio to a person who had a legal title to the 
inheritance, that is, he enforced the rights conferred on persons by 
the civil law (juris civilis confirmandi causa) ; e. g. he gave bonorum 
possessio secundum tabulas to the heir instituted in a will valid by 
civil law, 36, or bonorum possessio contra tabulas to certain prae- 
termitted self-successors, 2 125, or bonorum possessio ab intestato 
to the suus heres or the agnate, 37 ; cf. 34. 

(2) He also gave bonorum possessio to persons on whom the civil 
law had conferred no rights, that is, he supplemented the law (juris 
civilis adjuvandi causa) ; e. g. in default of sui heredes and proximi 
agnati he granted bonorum possessio ab intestato to cognates ; he 
gave juxta-tabular possession to the heir under a will invalid at 
civil law, because the testator had been incapacitated at some period 
between the execution of his will and his decease : such grant of 
possession being ineffective (sine re) against any person entitled ab 
intestato by the civil law, 2 147, 149, and Ulpian, 23. 6. So again 
he gave bonorum possessio secundum tabulas to the heir under a 
will invalid at civil law, from want of mancipation or nuncupation, 
2 149, and such will was ineffective (sine re) against an agnate 
claiming as heir by intestacy, until a rescript of the Emperor 
Antoninus (probably Marcus Aurelius) made such bonorum possessio 
effective (cum re) by giving the grantee a good defence against the 
civil heir, 2 119, 120. 

(3) He sometimes, though rarely and by something like a stretch 
of his authority, gave possession adverse to rights which the law 
had conferred on other persons, that is, he contradicted or corrected 
the law. The principal cases in which he did this were those in 
which he protected the interests of emancipated children. Thus by 



in. 18-38.] BONORVM POSSESSIO INTESTATI . 281 

bonorum possessio contra tabulas and by bonorum possessio intes- 
tati he put emancipati in the same position as sui, giving them 
effective possession (cum re) against the claim of the civil heir. He 
also gave juxta-tabular possession to the afterborn stranger (postumus 
alienus), Inst. 3, 9 pr. who, as an uncertain person, could not be 
instituted by the civil law, 2 242. The difficulty which the 
praetor found in making his title to the inheritance superior to that 
of Jus Civile is shown by the fact that it required a special act of 
legislation to make the praetorian will effective (cum re) against 
the agnatic heir ab intestato, and it is also illustrated by the con- 
troversy mentioned in 28, where we see that it is doubtful whether 
he could make use of the principle of successio graduum, which he 
adopted in his edict, so as to put an agnate who had no title at law 
in the position of civil heir. 

As in the two latter functions of supplementing and correcting 
the law, the praetor did what is elsewhere performed by courts of 
equity, we have sometimes translated the contrasted terms heres 
and bonorum possessor by the terms ' legal successor or heir ' and 
' equitable successor or heir.' 

The claim of an heir (heres) founded on a title at civil law was 
called hereditatis petitio ; a claim founded on a praetorian title, e.g. 
cognation, was pursued by the Interdict Quorum bonorum, or, in the 
latest period, by possessoria hereditatis petitio, Dig. 5, 5, 1. Such at 
least is Savigny's view, who makes no essential difference between 
the Interdict Quorum bonorum and Possessoria hereditatis petitio. 
According to Vangerow, 509, and more recent writers, however, 
the Interdict was confined to the purpose of obtaining Possession 
of the corporeal things belonging to the inheritance, separate fictitious 
actions being employed on account of other rights and liabilities, for 
the equitable or praetorian successor could not sue or be sued by 
direct actions. Thus it was only at a comparatively late time that 
Possessoria hereditatis petitio was allowed as a general means of 
claiming the inheritance when a claimant (e. g. cognatus or emanci- 
patus) had a praetorian title, corresponding to Hereditatis petitio, 
which was the means of claiming the civil inheritance. Accordingly the 
Interdict could not be brought, like Hereditatis petitio, against debtors 
to the inheritance ; but only against possessors of corporeal heredita- 
ments. Interdicto quoru m bonorum debitores hereditarii non tenentur, 
sed tantum corporum possessores, Dig. 43, 2, 2. Cf. Sohm, p. 552. 

Huschke supposes that after sujficit Gaius explained the provisions 
of the S. C. Tertullianum, passed in the time of Hadrian, on which 
he wrote a separate treatise. 

33 a. The orders or grades or classes to whom the praetor suc- 
cessively granted bonorum possessio in intestacy were as follow : 



282 SVCCESSIO PER VNIVERSITATEM [in. 18-38. 

(1) Children (liberi), including not only sui heredes, but also 
emancipated children, 26, on condition that the latter brought 
their goods into hotchpot (collatio bonorum), Dig. 37, 6. Children 
given in adoption were not admitted in this order, but in the third 
order of cognates, 31. 

(2) Statutory or civil heirs (legitimi), i. e. all who were entitled 
to inherit under the Twelve Tables or any statute ; e. g. agnates who 
were entitled under the Twelve Tables ; mothers, who, though 
belonging to a different civil family, were entitled to succeed their 
children under the Sc. Tertullianum, a statutoiy departure from the 
principles of the old civil law ; children, who were entitled to succeed 
their mothers under the Sc. Orphitianum, a further departure from 
the agnatic principle, probably passed soon after the Institutes of 
Gaius were written, on which this jurist also wrote a special com- 
mentary ; and sui heredes who had repudiated or omitted to demand 
possession as members of the first order within the interval allowed, 
namely, a year. 

(3) Next of kin (proximi cognati) to the sixth degree, including 
those who had neglected to claim in the first or second order. 

(4) Husband and wife inter se (vir et uxor), when the wife is not 
in manu. A wife in manu would be quasi daughter and therefore 
sua heres and entitled to succeed with liberi in the first order. 

These various grades of title are called unde liberi, unde legitimi, 
unde cognati, unde vir et uxor, phrases which properly denote 
those articles of the edict in which these classes are summoned 
to the succession : ea pars edicti unde liberi vocantur, &c., but are 
used by Eoman lawyers as epithets of intestate bonorum possessio. 

The degrees of cognation in a direct line are the number of 
generations that separate a descendant from an ascendant : to com- 
pute the degrees of collateral cognation we must add the degrees 
of direct cognation. Thus a man is one degree from his father, 
and therefore two from his brother and three from his nephew. 
He is two degrees from his grandfather, and therefore three from 
his uncle and four from his first cousin or cousin german (con- 
sobrinus). He is three degrees from his greats-grandfather, and 
therefore four from his great*uncl and five from his great-uncle's 
son (propior sobrino) and six from his second cousin (sobrinus), that 
is, his great-uncle's grandson, for second cousins are the children 
of first cousins. He is seven degrees from his second cousin's 
children, and this is the only case in which the seventh degree 
of cognation was recognized as giving a title to succeed in intestacy, 
the law only recognizing in other lines the sixth degree of cognation. 
In English law collateral relationship is a title to inheritance or 
succession without any limit. 






in. 39-45.] DE SVCCESSIONE LIBERTORVM CIVIVM 283 



36. Originally the person entitled to the praetorian succession 
was required to address a formal demand to the magistrate: but 
under Justinian any signification of intention to accept the suc- 
cession was sufficient without a demand. The interval allowed 
for this signification of intention (agnitio) to a parent or child 
of the defunct was a year, to other claimants a hundred days. 
If a person in a superior order or degree omitted to signify his 
acceptance in the interval allowed, the succession then devolved 
to the next degree or order. If the person who thus omitted to 
signify acceptance had only a praetorian title to the succession, his 
right was entirely forfeited by the omission ; but if he had a prior 
title at civil law he could by hereditatis petitio evict the bonorum 
possessor, who accordingly would have only a nugatory or ineffective 
possession (sine re). 

(As to bonorum possessio intestati cf. Sohm, p. 566.) 



39. Nunc de libertorum 
bonis uideamus. Inst. 3, 7 pr. 

40. Olim itaque licebat 
liberto patronum suum inpune 
testamento praeterire. nam ita 
demum lex xn tabularum ad 
hereditatem liberti uocabat 
patromim, si intestates mor- 
tuus esset libertus nullo suo 
herede relicto. itaque intestato 
quoque mortuo liberto, si is 
suum heredem reliquerat, nib.il 
in bonis eius patrono iuris erat. 
et siquidem ex naturalibus 
liberis aliquem suum heredem 
reliquisset, nulla uidebatur esse 
querella ; si uero uel adoptiuus 
films filiaue uel uxor quae in 
manu esset sua heres esset, 
aperte iniquum erat nihil iuris 
patrono superesse. Inst. 1. c. 

41. Qua de causa postea 
praetoris edicto haec iuris ini- 
quitas emendata est. siue enim 
faciat testamentum libertus, iu- 
betur ita testari, ut patrono suo 
partem dirnidiam bonorum suo- 
rum relinquatf, et si aut nihil 
aut minus quam partem dimi- 
diam reliquerit, datur patrono 



39. Succession to freedmen 
next demands our notice. 

40. Freedmen were originally 
allowed to pass over their patron 
in their testamentary dispositions. 
For by the law of the Twelve 
Tables the inheritance of a freed- 
man only devolved on his patron 
when he died intestate and with- 
out leaving a self-successor. So if 
he died intestate leaving a self-suc- 
cessor, the patron was excluded, 
which, if the self-successor was a 
natural child, was no grievance ; 
but if the self-successor was 
an adoptive child or a wife in 
hand (manu), it was clearly hard 
that they should bar all claim of 
the patron. 



41. Accordingly, at a later 
period, the praetor's edict cor- 
rected this injustice of the law. 
For if a freedman makes a will, he 
is commanded to leave a moiety 
of his fortune to his patron ; and 
if he leaves him nothing, or less 
than a moiety, the patron can 
obtain contra-tabular possession 



284 SVCCESSIO PER VNIVERSITATEM [in. 39-54. 



contra tabulas testament! partis 
dimidiae bonorum possessio ; si 
uero intestatus moriatur suo he- 
rede relicto adoptiuo filio (uel) 
uxore quae in manu ipsius esset, 
uel nuru quae in manu filii 
eius fuerit, datur aeque patrono 
aduersus hos suos heredes par- 
tis dimidiae bonorum possessio. 
prosunt autem liberto ad ex- 
cludendum patronum naturales 
liberi, non solum quos in po- 
testate mortis tempore habet, 
sed etiam emancipati et in 
adoptionem dati, si modo aliqua 
ex parte heredes scripti sint, 
aut praeteriti contra, tabulas 
testamenti bonorum posses- 
sionem ex edicto petierint; nam 
exheredat^ nullo modo repel- 
lunt patronum. Inst. 3, 7, 1 . 
42. Postea lege Papia aucta 
sunt iura patronorum, quod ad 
locupletiores libertos pertinet. 
cautum est enim ea lege, ut ex 
bonis eius, qui sestertiorum 
c entum milium plurisue patri- 
monium reliquerit, et pauciores 
quam tres liberos habebit, siue 
is testamento facto siue inte- 
stato mortuus erit, uirilis pars 
patrono debeatur. itaque cum 
unum filium unamuefiliamhere- 
dem reliquerit libertus, proinde 
pars dimidia patrono debetur, 
ac si sine ullo filio filiaue more- 
retur ; cum uero duos duasue 
heredes reliquerit, tertia pars 
debetur; si tres relinquat, re- 
pellitur patronus. Inst. 3, 7, 2. 

43. In bonis libertinarum 
nullam iniuriam antique iure 
patiebantur patroni. cum enim 
hae in patronorum legitima 
tutela essent, non aliter scilicet 
testamentum facere poterant 
quam patrono auctore. itaque 



of a moiety from the praetor. 
And if he die intestate, leaving as 
self-successor an adoptive son or 
a wife in his hand or a son's wife 
in the hand of his son, the patron 
can obtain in the same way against 
these self-successors intestate pos- 
session of a moietyf rom the praetor. 
But the freedman is enabled to 
exclude the patron if he leaves 
natural children, whether in his 
power at the time of his death or 
emancipated or given in adoption, 
provided he leaves them any por- 
tion of the inheritance, or that, 
being passed over in silence, they 
have demanded contra - tabular 
possession under the edict ; for, 
if they are disinherited, they do 
not at all bar the patron. 



42. At a still later period the 
lex Papia Poppaea augmented 
the rights of the patron against 
the estate of more opulent freed- 
men. For by the provisions of 
this statute whenever a freedman 
leaves property of the value of a 
hundred thousand sesterces and 
upwards, and not so many as three 
children, whether he dies testate 
or intestate, a portion equal to 
that of a single child is due to 
the patron. Accordingly, if a 
single son or daughter survives, 
half the estate is claimable by 
the patron, just as if the freed- 
man had died childless ; if two 
children inherit, a third of the 
property belongs to the patron ; 
if three children survive, the 
patron is excluded. 

43. In respect of the property 
of freed women no wrong could pos- 
sibly be done to the patron under 
the ancient law : for, as the patron 
was statutory guardian of the 
freedwoman, her will was not 
valid without his sanction, so that, 



in. 39-54.] DE SVCCESSIONE LIBERTORVM CIVIVM 285 



siue auctor ad testamentum 

faciendum factus erat 1 

relict - |ctus erat, seque- 
batur hereditas ; si uero auctor | 
ei f&ctus non erat, et intestata 

liberta moriebatu?% | ad 

^?er|tinebat ; nee enim ullus 

olim possit patron um a 

bonis libertae rejpellere. 

44. Sed postea lex Papia 
cum quattuor liberorum iure 
libertinas tutela patronorum 
liberaret et eo modo concederet 
eis etiam sine tu|toris auctori- 
tate eondere testamentum, pro- 
spexit, | ut pro numero libero- 
rum, quos liberta mortis tem- 
po\re habuerit, uirilis pars pa- 
trono debeatur. er|go ex bonis 
eius quae 1 liberos reli 



|a possid 



here- 



ad patronum pertinet. 



45. Quae diximus de pa- 
trono, eadem intellegemus et 
de filio patroni ; item de nepote 
ex filio (et de} pronepofe ex ne- 
pote filio nato progn&to. 

46. Filia uero patroni et 
neptis ex filio et pronepfa's ex 
nepote filio nato prpgnatfa olim 
quidem eo iure, quod lege xn 
tabularum patrono datum est, 
sexus | patronorum li- 
beros testamenti liberti 

(auty ab intestate contra filium 
adoptiuum uel uxorem nurumue 
quae in manu fuerit, bonorum 
possessionem petat, trium libe- 
rorum iure lege Papia conse- 
quitur ; aliter hoc ius non 
habet. 



if he sanctioned a will, he either 
would be therein instituted heir, 
or, if not, had only himself to 
blame : for if he did not sanction 
a will and consequently the freed- 
woman died intestate, he was as- 
sured of the inheritance, for she 
could leave no heres or bonorum 
possessor who could bar the claim 
of the patron. 

44. But when at a subsequent 
period, by the enactment of the lex 
Papia, four children were made 
a ground for releasing a freed- 
woman from the guardianship of 
her patron, so that his sanction 
ceased to be necessary to the 
validity of her will, it was provided 
by that law that the patron should 
have a claim to a portion of her 
estate equal to that of each single 
child she might have at the time 
of her death. So if a freedwoman 
left four children, a fifth part of 
her property went to her patron, 
but if she survived all her child- 
ren, the patron on her decease 
took her whole property. 

45. What has been said of 
the patron applies to a son of the 
patron, a grandson by a son, a 
great-grandson by a grandson by 
a son. 

46. Although a daughter of 
a patron, a granddaughter by a 
son, a great-granddaughter by a 
grandson by a son have under 
the statute of the Twelve Tables 
identical rights with the patron, 
the praetorian edict only calls 
the male issue to the succession : 
but the lex Papia gives a daughter 
of the patron a contra - testa- 
mentary or intestate claim against 
an adoptive child, or a wife, or 
a son's wife to a moiety of the 
inheritance on account of the 
privilege of being mother of three 
children ; a daughter not so privi- 
leged has no claim. 



286 SVCCESSIO PER VNIVERSITATEM [in. 39-54. 






47. Sed ut ex bonis libertae 
testatae quattuor liberos ha- 
bentis uirilis pars ei debeatur, 
ne liberorum quidem iure con- 
sequitur, ut quidam putant. sed 
tarnen intestata liberta mortua 
uerba legis Papiae faciunt, ut ei 
uirilis pars debeatur. si uero 
testamento facto mortua sit li- 
berta, tale ius ei datur, quale 
datum est contra tabulas testa- 
ment! liberti, id est quale et 
uirilis sexus patronorum liberi 
contra tabulas testamenti liberti 
habent; quamuis parum dili- 
genter ea pars legis scripta sit. 



48. Ex his apparet entra- 
nces heredes patronorum longe 
remotos esse ab onmi eo iure, 
quod uel in ^testatorum bonis 
uel contra tabulas testamenti 
patrono conpetit. 



49. Patronae olim ante 
legem Papiam hoc solum ius 
habebant in bonis libertorum, 
quod etiam patronis ex lege xn 
tabularum datum est. nee enim 
ut contra tabulas testamenti 
ingrati liberti uel ab intestate 
contra filium adoptiuum uel 
uxorem nurumue bonorum pos- 
sessionem partis dimidiae pe- 
terent, praetor similiter ut de 
patrono liberisque eius curabat. 



50. Sed lex Papia duobus 
liberis honoratfae ingenuae pa- 
tronae, libertinae tribus, eadem 
fere iura dedit, quae ex edicto 
praetoris patroni habent ; trium 
uero liberorum iure honoratae 



47. In the succession to a 
testate freedwoman mother of 
four children, a patron's daughter, 
though mother of three children, 
is not, as some think, entitled 
to the portion of a child : but, if 
the freedwoman die intestate, the 
letter of the lex Papia gives her 
the portion of a child ; if the 
freedwoman die testate, the 
patron's daughter has the same 
title to contra-tabular possession 
as she would have against the 
will of a freedman, that is, as 
the praetorian edict confers on a 
patron and his sons in respect of 
the property of a freedman, [viz. 
a claim to half against all but 
natural children] though this 
portion of the law is carelessly 
written. 

48. It is thus apparent that 
the external heirs of a patron are 
entirely excluded from the rights 
which the law confers on the 
patron himself, whether a freed- 
man die intestate or it is a ques- 
tion of the freedman's will being 
set aside by the praetor in favour 
of the patron. 

49. Before the lex Papia was 
passed, patronesses had only the 
same rights in the property of 
their freed men as patrons enjoyed 
under the statute of the Twelve 
Tables : for neither did the praetor 
intervene to give them a moiety 
of the inheritance by contra- 
tabular possession against a will 
of an ungrateful freedman, nor 
by making a grant of possession 
against the intestate claim of an 
adoptive child or a wife or a son's 
wife, as he did in the case of the 
patron and the patron's son. 

50. But subsequently by the 
lex Papia two children entitle a 
freeborn patroness, three children 
a patroness who is a freedwoman, 
to nearly the same rights as the 
praetor's edict confers on a patron ; 



in. 39-54.] DESVCCESSIONELIBERTORVMCIVIVM 287 



ingenuae patronae ea iura dedit, 
quae per eandem legem patrono 
data sunt; libertinae autem 
patronae non idem iuris prae- 
stitit. 



51. Quod autem ad libefti- 
narum bona pertinet, siquidem 
intestatae decesserint,mhilnoui 
patronae liberis honoratae lex 
Papia praestat. itaque si neque 
ipsa patrona neque liberta capite 
deminuta sit, ex lege xn tabu- 
larum ad earn hereditas pertinet 
et excluduntur libertae liberi ; 
quod iuris est etiam si liberis 
honorata non sit patrona ; num- 
quam enim.sicut supra diximus, 
feminae suum heredem habere 
possunt. si uero uel huius uel 
illius capitis deminutio inter- 
ueniat, rursus liberi libertae 
excludunt patronam, quia legi- 
timo iure capitis deminutione 
perempto euenit, ut liberi li- 
bertae cognationis iure potiores 
habeantitr. 

52. Cum autem testarnento 
facto moritur liberta, ea quidem 
patrona quae liberis honorata 
non est nihil iuris habet contra 
libertae testamentum ; ei uero 
quae liberis honorata est hoc ius 
tribuitur per legem Papiam, 
quod habet ex edicto patronus 
contra tabulas liberti. 



53. |Eadem lex patronae 
filio liberis honorato /ere pa- 
troni iura dedit ; sed in huius 
persona etiam unius filii filiaeue 
ius sufficit. 

54. Hactenus omnia iura 
quasi per indicem tetigisse satis 
est ; alioquin diligentior inter- 



and it also provided that three 
children entitle a freeborn pa- 
troness to the same rights which 
the statute itself conferred on a 
patron: but the statute does not 
grant these latter rights to a pa- 
troness who is a freedwoman. 

51. As to the successions of 
freedwomen who die intestate, 
no new right is conferred on a 
patroness through the title of 
children by the lex Papia ; ac- 
cordingly, if neither the patroness 
nor the freedwoman has under- 
gone a capitis deminutio, the law 
of the Twelve Tables transmits 
the inheritance to the patroness, 
and excludes the freedwoman's 
children, even when the patroness 
is childless ; for a woman, as 
before remarked, can never have 
a self-successor: but if either of 
them has undergone a capitis de- 
minutio, the children of the freed- 
woman exclude the patroness, 
because her statutory title having 
been obliterated by capitis de- 
minutio, the children of the freed- 
woman are admitted by right of 
kinship in preference to her. 

52. When a freedwoman dies 
testate, a patroness not entitled 
by children has no right of con- 
tra-tabular possession : but a pa- 
troness entitled by children has 
conferred upon her by the lex 
Papia the same right to a moiety 
by contra-tabular possession as 
the praetorian edict confers on 
the patron to the inheritance of 
a freedman. 

53. By the same law a pa- 
troness's son privileged by having 
children has almost the rights of 
a patron [patroness?], but in this 
case one son or daughter is suffi- 
cient to give him the privilege. 

54. This summary indication 
of the rules of succession to freed- 
men and freedwomen who are 



288 SVCCESSIO PER VNIVERSITATEM [m. 55-76. 
pretatio propriis commentariis Roman citizens may suffice for 



exposita est. 



the present occasion : a more 
detailed exposition is to be found 
in my separate treatise on this 
branch of law. 



54. Gaius wrote a treatise in fifteen books, Ad leges Juliam et 
Papiam, from which there are thirty extracts in the Digest ; another 
in ten books, Ad edictum urbicum ; and another in three books, 
De manumissionibus : to any of which he may allude, but more 
probably to the first. 



55. Sequitur ut de bonis 
Latinorum libertinorum dis- 
piciamus. 

56. Quae pars iuris ut mani- 
festior fiat, admonendi sumus, 
id quod alio loco diximus, eos 
qui nuncLatiniluniani dicuntur 
olim ex iure Quiritium seruos 
fuisse, sed auxilio praetoris in 
libertatis forma seruari solitos ; 
unde etiam res eorum peculii 
iure ad patronos pertinere solita 
eet ; postea uero per legem 
luniam eos omnes, quos praetor 
in libertate tuebatur, liberos 
esse coepisse et appellatos esse 
Latinos lunianos : Latinos ideo, 
quia lex eos liberos perinde esse 
uoluit atque [si essent ciues Ro- 
mani ingenui | qui ex urbeRoma 
in Latinas colonias deducti La- 
tini coloniarii esse coeperunt ; 
lunianos ideo, quia per legem 
luniam liberi facti sunt[,etiamsi 
non essent ciues Romani]. legis 
itaque luniae lator cum intel- 
legeret futurum, ut ea fictione 
res Latinorum defunctorum ad 
patronos pertinere desinerent, 
quia scilicet neque ut serui de- 
cederent, ut possent iure peculii 
res eorum ad patronos pertinere, 
neque liberti Latini hominis 
bona possent manumissionis 
iure ad patronos pertinere, ne- 
cessarium existimauit, ne bene- 



55. We proceed to the suc- 
cessions of Latini Juniani. 

56. To understand this branch 
of law we must recollect what has 
been already mentioned (1 22), 
that those who are called Latini 
Juniani were originally slaves by 
law of the Quirites, though main- 
tained by the praetor's protection 
in a condition of de facto freedom, 
so that their possessions belonged 
to their patrons by the title of 
peculium. At a more recent 
period, when the lex Junia was 
enacted, those whom the praetor 
had protected in de facto freedom 
became legally free, and were 
called Latini Juniani : Latini, be- 
cause the law intended to assimi- 
late their freedom to that of free- 
born citizens of Rome who, on 
quitting Rome for a Latin colony, 
became Latin colonists ; Juniani, 
because their liberty was due to 
the lex Junia, although it did not 
make them Roman citizens : and 
as the author of the lex Junia fore- 
saw that the effect of this fiction 
of their being on the same footing 
as Latini coloniarii would be that 
the goods of deceased Latini 
Juniani would cease to belong to 
the patron, since not being slaves 
at the time of their death, their 
goods would not belong to the 
patron by right of peculium, nor 
could the goods of a Latin colonist 



in. 55-76.] DE BONIS LIBERTORVM 



289 



ficium istis datum in iniuriam 
patronorum conuerteretur, ca- 
uere [uoluit], ut bona eorum 
proinde ad manumissores per- 
tinerent, ac si lex lata non 
essefc ; itaque iure quodammodo 
peculii bona Latinorum ad 
manumissores ea lege pertinent. 



57. Fnde accidit ut longe 
differant ea iura, quae in bonis 
Latinorum ex lege lunia con- 
stituta sunt, ab his quae in 
hereditate ciuium Romanorum 
libertorum obseruantur. 

58. Nam ciuis Romani li- 
berti hereditas ad extraneos 
heredes patroni nullo modo 
pertinet; ad filium autem pa- 
troni nepotesque ex filio et 
pronepotes ex nepote (filio 
natoy prognatos omni modo 
pertinet, etiamsi (a) parente 
fuerint exheredati. Latinorum 
autem bona tamquam peculia 
seruorum etiam ad extraneos 
heredes pertinent, et ad liberos 
manumissoris exheredatos non 
pertinent. 

59. Item ciuis Romam li- 
\>erti hereditas ad duos pluresue 
patronos aequaliter pertinet, 
licet dispar in eo seruo domi- 
nium habuerint; bona uero 
Latinorum pro ea parte per- 
tinent, pro qua parte quisque 
eorum dominus fueri. 

60. Item in hereditate ciuis 
Romani libertipatronus alterius 
patroni filium excludi, et films 
patroni alterius patroni nepo- 
tem repellit ; bona autem Lati- 
norum [et ad ipsum patronum] 
j et ad alterius patroni heredem 



u 



devolve on him by title of manu- 
mission ; he deemed it neces- 
sary, to prevent the favour to 
these freedmen from becoming 
a wrong to the patron, to provide 
that their goods should belong to 
the manumitter in the same way 
as if the law had not been enacted. 
Consequently by that enactment 
the property of Latini Juniani 
belongs to their manumitters as 
if it were by right of peculium. 

57. Accordingly there are 
wide differences between the 
title to the property of Latini 
Juniani under the lex Junia 
and the title to the inheritance 
of freedmen who are Roman 
citizens. 

58. When a freedman, who 
is a Roman citizen, dies, an 
external heir of the patron has 
no claim to his inheritance, while 
a son of the patron, a grand- 
son by a son, a great-grandson 
by a grandson by a son, have an 
indefeasible claim even if disin- 
herited by their parent ; whereas, 
when a Latinus Junianus dies, 
his property belongs to his 
patron's external heir, like the 
peculium of a slave, and does not 
belong to the manumitter's 
children who are disinherited. 

59. Thus the inheritance of 
a freedman, who is a Roman 
citizen, belongs to two or more 
patrons in equal portions, in 
however unequal proportions 
they had been his proprietors; 
whereas the goods of a Latinus 
Junianus belong to his patrons 
according to their shares in him 
when he was a slave. 

60. Again, in the succession 
to a freedman who is a Roman 
citizen, one patron bars another 
patron's son, and a son of one 
patron bars another patron's 
grandson ; whereas the goods of 
a Latinus Junianus belong jointly 



290 SVCCESSIO PER VNIVERSITATEM [m. 55-76. 



simul pertinent, pro qua parte 
ad ipsum manumissorem per- 
tinerent. 

61. Item si unius patroni 
tres forte liberi sunt et alterius 
unus. hereditas ciuis Romani 
liberti in capita diuiditur, id 
est tres fratres tres portiones 
ferunt et unus quartam ; bona 
uero Latinorum pro ea parte 
ad successores pertinent, pro 
qua parte ad ipsum manumis- 
sorem pertinerent. 

62. Item si alter ex his 
patronis suam partem in here- 
ditate ciuis Romani liberti 
spernat, uel ante moriatur 
quam cernat, tota hereditas ad 
alterum pertinet; bona autem 
Latini pro parte de/icientis 
patroni caduca fiunt et ad po- 
pulum pertinent. 

63. Postea Lupo et Largo 
consulibus senatus censuit, ut 
bona Latinorum primum ad 
eum pertinerent qui eos libe- 
rasset ; deinde ad liberos eorum 
non nominatim exheredatos, uti 
quisque proximus esset ; tune 
antique iure ad heredes eorum 
qui liberassent pertinerent. 



64. Quo senatusconsulto 
quidam (idy actum esse putant, 
ut in bonis Latinorum eodem 
iure utamur, quo utimur in 
hereditate ciuium Romanorum 
libertinorum. icZque maxime 
Pegaso placuit. quae sententia 
aperte falsa est. nam ciuis 
Romani liberti hereditas num- 
quam ad extraneos patroni 
heredes pertinet, bona autem 



both to a patron and another 
patron's heir, the latter taking the 
share which would have belonged 
to the manumitter he represents. 
61. If one patron leave three 
children, and another patron one, 
the inheritance of a freedman 
who was a Roman citizen is 
divided by the number of indi- 
viduals (in capita) ; that is to say, 
every one takes an equal portion ; 
whereas the goods of a Latinus 
Junianus belong to those who suc- 
ceed in the proportion in which 
they would have belonged to the 
manumitters they represent. 

62. If one patron renounce 
his part in the inheritance of a 
freedman who was a Roman 
citizen, or die before formal 
acceptance (cretio), the whole in- 
heritance belongs to the other; 
but the share of the property of 
a Latinus Junianus which a 
patron fails to take is caducous 
and belongs to the people 
(aerarium). 

63. At a later period, when 
Lupus and Largus were consuls, 
the senate decreed that the goods 
of a Latinus Junianus should 
belong in the first place to the 
manumitter, in the next to such 
issue of the latter as are not in- 
dividually disinherited, in the 
order of their proximity, and, in 
default of these, by the ancient 
law of devolution, to the heirs of 
those manumitting them. 

64. The effect of this senatus- 
consult is, according to some 
authorities, that the goods of a 
Latinus Junianus devolve in the 
same way as the inheritance of a 
freedman who was a Roman 
citizen, and this was the doctrine 
of Pegasus: but this opinion is 
clearly erroneous, for the inheri- 
tance of a freedman who is a 
Roman citizen never belongs to 
an external heir of his patron ; 



in. 55-76.] DE BONIS LIBERTORVM 



291 



Latinorum [etiam] ex hoc ipso 
senatusconsulto non obstanti- 
bus liberis manumissoris etiam 
ad extraneos heredes pertinent, 
item in hereditate ciuis Romani 
liberti liberis manumissoris 
nulla exheredatio nocet,m bonis 
Latinorum nocere nominatim 
factam exheredationem ipso 
senatusconsulto significatur. 



64 a. Verius est ergo hoc 
solum eo senatusconsulto actum 
esse, ut manumissoris liberi, qui 
nominatim exheredati non sint, 
praeferantur extraneis heredi- 
bus. 

65. Itaque emancipatus fi- 
lius patroni praeteritus quam 
uis contra tabulas testament! 
parentis sui bonorum posses- 
sionem non petierit, t&men ex- 
traneis heredibus in bonis Lati- 
norum potior habetur. 

66. Item filia ceterique sui 
heredes licet iure ciuili inter 
ceteros exheredati sint et ab 
omni hereditate patris sui sum- 
moueantur, tamen in bonis 
Latinorum, nisi nominatim a 
parente fuerint exherecfati, 
potiores erunt extraneis here- 
dibus. 

67. Item ad liberos, qui ab 
hereditate parentis se absti- 
nuerunt, nihilo minus 6ona 
Latinorum pertinent; nam hi 
quoque exheredati nullo modo 
dici possunt, non magis quam 
qui testamento silentio prae- 
teriti sunt. 

68. Ex his omnibus satis 
illud apparet, si is qui Lati- 



U 3 



whereas the goods of a Latinus 
Junianus, by the express terms 
of the senatusconsult, in default 
of children of the manumitter 
devolve on his external heir. 
Again, in the case of the inheri- 
tance of a freedman who was a 
Roman citizen, the children of the 
manumitter are not injuriously 
affected by any form of disin- 
heritance ; whereas Latini Ju- 
niani, in respect of their goods, 
are injured by individual dis- 
inheritance according to the very 
terms of the senatusconsult. 

64 a. The only true effect, 
then, of the senatusconsult is, 
that the manumitter's children 
in ^ the absence of individual 
disinheritance are preferred to 
external heirs. 

65. Accordingly, an emanci- 
pated son of the patron who is 
passed over in silence by his 
father, though he makes no 
demand for contra-tabular pos- 
session, is nevertheless preferred 
to an external heir in respect of 
the goods of a Latinus Junianus. 

66. Again, a daughter and 
other self-successors who can be 
disinherited at civil law in a 
mass (inter ceteros) and thereby 
effectively deprived of the inheri- 
tance of their parent, in respect of 
the goods of a Latinus Junianus, 
unless they are individually 
(nominatim) disinherited, have 
priority over an external heir. 

67. Children, too, although 
they have abstained from the in- 
heritance of their parent, are en- 
titled to the goods of his Latinus 
Junianus in spite of their absten- 
tion, because they cannot be said 
to have been disinherited any 
more than children who are passed 
over by a testator in silence. 

68. From all these points it 
is sufficiently apparent that he 



292 SVCCESSIO PER VNIVERSITATEM [in. 55-76. 



num | fecerit, 1 

-sse ; hunc enim solum 
bonis L&t'morum 



who makes a Latinus Junianus 



in 



(4 uersus in C legi nequeunt) 

1 quaeritur, an exheredes 

I (5 uersus in C legi 

nequeunt) 1 et libe 1 



I constat 
bona Latinorum 



est ut 
ab 



alteri 1. 

69. Item illud quoque con- 
stare uidetur, si solos liberos ex | 
disparibus partibus patronus 

1 tant, ad eos per- 

tinere, quia nullo interueniente 
extraneo herede senatusconsulto 
locus non est. 



70. Sed si cum liberis suis 
etiam extraneum heredem pa- 
tronus reliquerit, Cfoelius Sa- 
binus ait tota bona pro uirilibus 
partibus ad liberos defuncti 
pertinere, quia cum extraneus 
heres interuenit, non habet lex 
lunia locum, sed senatuscon- 
sultum. lauolenus autem ait 
tantum earn partem ex senatus- 
consulto liberos patroni pro ui- 
rilibus partibus habituros esse, 
quam extranei heredes ante 
senatusconsultum lege lunia 
habituri essent, reliquas uero 
partes pro hereditariis partibus 
ad eos pertinere. 

71. Item quaeritur, an hoc 
senatusconsultum ad eos patroni 
liberos pertineat, qui ex filia 
nepteue procreantur, id est ut 
nepos meus ex filia potior sit 
in bonis Latini mei quam ex- 
traneus heres. item (an) ad 
maternos Latinos hoc senatus- 



69. This also seems to be 
established, that if a patron has 
instituted his children as his 
sole heirs but in unequal por- 
tions, the property of a Latin 
belongs to them in the same 
unequal proportions, because in 
the absence of an external heir 
the senatusconsult has no appli- 
cation. 

70. If the children of the 
patron are left joint heirs with a 
stranger, Caelius Sabinus holds, 
that the entire goods of a 
Latinus Junianus devolve in 
equal portions on the children, 
because when an external heir 
intervenes he is brought within 
the senatusconsult instead of the 
lex Junia. According to Javo- 
lenus, only that part will devolve 
under the senatusconsult in equal 
portions on the children of the 
patron, which, before the senatus- 
consult was passed, the external 
heir would have been entitled 
to under the lex Junia, and the 
residue will belong to them in 
the proportion of their shares in 
their father's inheritance. 

71. It is a further ques.tion, 
whether this senatusconsult ex- 
tends to descendants (liberi) of 
the patron born of a daughter or 
granddaughter of a patron, that 
is whether in respect of the 
goods of a Latinus Junianus a 
grandson by a daughter will be 



in. 55-76.1 DE BONIS LIBERTORVM 

a J 



293 



consultum pertineat quaeritur, 
id est ut in bonis Latini materni 
potior sit patronae films quam 
heres extraneus matris. Cassio 
placuit utroque casu locum esse 
senatusconsulto. sed huius sen- 
tentiam plerique inprobant, quia 
senatus de his liberis [patrona- 
rum] nihil sentiat, qui aliara 
familiam sequerentur. idque 
ex eo apparet, quod nominatim 
exheredatos summouet ; nam 
uidetur de his sentire qui ex- 
heredari a parente solent, si 
heredes non instituantur ; ne- 
que autem matri filium filiam- 
ue, neque auo materno nepo- 
tem neptemue, si eura eamue 
heredem non instituat, exhere- 
dare necesse est, siue de iure 
ciuili quaeramus, siue de edicto 
praetoris, quo praeteritis liberis 
contra tabulas testamenti bono- 
rum possessio promittitur. 



72. Aliquando tanien ciuis 
Romanus libertus tamquam La- 
tinus moritur, uelut si Latinus 
saluo iure patroni ab imperatore 
ius Quiritium consecutus fuerit. 
nam, ut diuus Traianus consti- 
tuit, si Latinus inuito uel igno- 
rante patrono ius Quiritium ab 
imperatore consecutus sit, [qui- 
bus casibus] dum uiuit iste li- 
bertus, ceteris ciuibus Romanis 
libertis similis est et iustos li- 
beros procreat, moritur autem 
Latini iure, nee ei liberi eius 
heredes esse possunt ; et in hoc 



preferred to an external heir. 
Again, it is a question whether 
a Latinus Junianus belonging to 
a mother is within the senatus- 
consult, that is, whether in 
respect of the goods of a Latinus 
Junianus, manumitted by a 
mother, preference is given to 
the patroness' son over her ex- 
ternal heir. Cassius held that 
both cases are within the scope 
of the senatusconsult ; but his 
opinion is generally rejected on 
the ground that the senate could 
not contemplate the benefit of 
patronesses' sons ; persons, that 
is, in another civil family to 
that of the manumitter ; and this 
appears to be the true interpreta- 
tion of the senatusconsult from 
its making individual disinheri- 
tance a bar ; for herein the senate 
appears to contemplate those who 
must be disinherited by their 
parent if they are not instituted. 
Now a mother need not disinherit 
her child, nor a mother's father 
a grandchild, in default of insti- 
tution, whether we look to the 
civil law or to that part of the 
praetorian edict which promises 
contra-tabular possession to child- 
ren passed over by a testator in 
silence. 

72. Sometimes a freedman, 
who is a Roman citizen, dies as 
a Latinus Junianus ; for instance, 
a Latinus Junianus who has 
obtained an imperial grant of 
citizenship, reserving the rights 
of his patron: for by a consti- 
tution of the emperor Trajan a 
Latinus Junianus who obtains 
an imperial grant of citizenship 
against the will or without the 
knowledge of his patron re- 
sembles during his lifetime other 
freedmen who are Roman citi- 
zens, and procreates lawful 
children, but dies with the status 



294 SVCCESSIO PEE VNIVERSITATEM [in. 55-76. 

tantum habet testament! fa- 
ctionem, ut patronum heredem 
instituat eique, si heres esse 
noluerit, alium substituere 
possit. 



73. Et quia hac constitu- 
tione uidebatur effectum, ut ne 
umquam isti homines tamquam 
ciues Roman! morerentur, quam- 
uis eo iure postea usi essent, 
quo uel ex lege Aelia Sentia 
uel ex senatusconsulto ciues 
Romani essent, diuus Hadrianus 
iniquitate rei motus auctor fuit 
senatusconsulti /aciendi, ut qui 
ignorante uel recusante patrono 
ab iinperatore ius Quiritium 
consecuti essent, si eo iure 
postea usi essent, quo ex lege 
Aelia Sentia uel ex senatus- 
consulto, si Latini maws-issent, 
ciuitatem Romanam conseque- 
rentur, proinde ipsi haberentur 
ac si lege Aelia Sentia uel 
senatusconsulto ad ciuitatem 
Romanam peruenissent. 



74. Eorum autem, quos lex 
Aelia Sentia dediticiorum nu- 
mero facit, bona modo quasi 
ciuium Romanorum libe? 7 to- 
rum, modo quasi Latinorum ad 
patronos pertinent. 

75. Nam eorum bona qui, 
si in aliquo uitio non essent, 
manumissi ciues Romani futuri 
essent, quasi ciuium Romanorum 
patronis eadem lege tribuuntur. 
non tamen hi habent etiam 
testamenti factionem ; nam id 



of a Latinus, so that his children 
are not his heirs ; and has only 
this amount of testamentary 
capacity that he may institute 
his patron heir, and name a sub- 
stitute to him in case of his 
renouncing the inheritance. 

73. But as the effect of this 
constitution seemed to be, that 
such a person could never die 
as if he were a Eoman citizen, 
even though he subsequently 
acquired the title to which 
the lex Aelia Sentia or the 
senatusconsult (1 31) annexes 
the right of Eoman citizenship, 
the emperor Hadrian, to miti- 
gate the harshness of the law, 
caused to be passed a senatus- 
consult, that a freedman, who 
obtained from the emperor a 
grant of citizenship without the 
knowledge or contrary to the. 
will of his patron, on subse- 
quently acquiring the title to 
which the lex Aelia Sentia or 
the senatusconsult, if he had 
remained a Latinus Junianus, 
would have annexed the rights 
of Eoman citizenship, should be 
deemed to be in the same posi- 
tion as if he had acquired 
Eoman citizenship by the title 
of the lex Aelia Sentia or the 
senatusconsult. 

74. The property of those 
who under the lex Aelia Sentia 
are counted as if they were sur- 
rendered enemies devolves on 
their patrons sometimes as if 
they were freedmen who had 
Eoman citizenship, sometimes as 
if they were Latini Juniani. 

75. For .the goods of those of 
them who, but for some offence, 
would have obtained on manu- 
mission Eoman citizenship are 
given by this statute to their 
patrons like freedmen who be- 
came Eoman citizens by the 



in. 55-76.] DE BONIS LIBERTORVM 295 

plerisque placuit, nee inmerito : provision of the above-mentioned 
nam incredibile uidebatur pes- statute ; but, according to the 
siinae condicionis hominibus prevalent and better opinion, 
uoluisse legis latorem testa- tne 7 cannot make a will ; for it 
menti faciendi ius concedere. see . ms incredible that the most 

abject order of freedmen should 
have been intended by the legis- 
lator to enjoy the power of testa- 
mentary disposition. 

76. Eorum uero bona qui, 76. But the goods of those 
si non in aliquo uitio essent, who, but for some offence, would 
manumissi futuri Latini essent, have become on manumission 
proinde tribuuntur patronis, ac Latini are assigned to their 
si Latini decessissent. nee me patrons as if they were the goods 
praeterit non satis in ea re legis of Latini, though, as I am aware, 
Zatoremuoluntatemsuamuerbis the ^gislator has not expressed 

his intention in this matter in 

. , . , 

terms as unequivocal as might 

be desired. 



59. It was an arbitrary rule of Roman jurisprudence that rights 
of patronage were not divisible in unequal portions (placuit nullam 
esse libertorum divisionem, Dig. 37, 14, 24), that is, that several 
joint proprietors of a slave in unequal portions acquired by his 
manumission equal rights as joint patrons against his succession. 

60. The rights of patrons were modelled on those of agnates, 
and we know that only the nearest agnate was entitled to succeed. 
Therefore on the decease of one of several joint patrons his rights 
accrued to the remainder by survivorship. But the peculium of a 
slave belongs to his co-proprietors in the ratio of their property, and 
on the decease of one, his rights do not accrue to t