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IMPERATORIS lUSTINIANI
INSTITUTIONUM LIBRI QUATTUOR

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HENRY FROWDE

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Amen Corner, E.C.

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IMPERATORIS lUSTINIANI

INSTITUTIONUM

LIBRI QUATTUOR

IVITH INTRODUCTIONS, COMMENTARY, AND EXCURSUS

BY

J. B. MOYLE, D.CL.

OF Lincoln's inn, barrister-at-law

AND FMXOW and TUTOR OF NEW COLLEGE, OXFORD

8XOOND BDITION

Oxford

AT THE CLARENDON PRESS

1890

[All rights reserved '\

17

^ (V

PRINTED AT THE CLARENDON PRESS

BY HOMACB HAXT, PRINTER TO THB UNIVBMSITY.

PREFACE.

The text which I have followed is that published by
Krueger in his and Mommsen's Edition of the Corpus iuris
civilis (Berlin, 1877). In writing the Introductions, Commen-
tary, and Excursus^ I believe I have consulted the best and
most recent authorities : perhaps my obligation throughout is
heaviest to Puchta (on whose masterly Institutionen, Book II,
the General Introduction is mainly based), Schrader, Baron,
and Vangerow. My constant difficulty, in explaining the
text, has been to know where to draw the line between notes,
in the ordinary sense of the word, and a more systematic
treatment of legal topics. If I seem to have been too prolix,
my excuse must be the scarcity of accessible books upon the
subject in our own language. A French or German edition
of the Institutes might well have been far shorter, but there
the reader can be referred to systematic institutional treatises
upon points which hardly occur in our text, A book such as
Puchta's or Kuntze's still remains to be written in English.

I have to express my thanks to Professor Bryce, M.P., the
present holder of the Chair of Civil Law in this University, for
constant encouragement and much actual assistance in my
work. Some of it he has revised with great care, and he
has benefited the whole by many valuable suggestions and
criticisms.

J. B. M.

Oxford, /anuary, 1883.

NOTE TO THE SECOND EDITION.

Such changes as the reader will meet with in comparing
this with the First Edition will be found more in the Intro-
ductions and Excursus than in the Commentary. The
Excursus on Bonorum Possessio has been re-written, and
portions of others, as well as of the General Introduction,
have undergone considerable revision. In respect of the
Commentary, the Editor has mainly contented himself with
a careful examination of the references, some of which were
in the First Edition erroneous, and in rectifying a small
number of notes which on reconsideration he found faulty
or misleading.

Oxford, January ^ 1890.

CONTENTS.

PACK

General Introduction i

Book I.

Introduction 85

Prooemiam 97

Text and Commentary 99

Ekcursus I. Capitis deminutio 183

Book II.

Introduction 187

Text and Commentary 195

Excursus II. lura in re aliena other than Servitudes . 325

„ III. Possession 334

Book III.

Introduction 343

Text and Commentary 35 1

Excursus IV. Origin and Development of Bonorum Possessio 47 1

V. The general nature of Obligations . . 476
VI. Dolus, Culpa, and Casus . . -485

VII. Correality and Solidarity .... 488

VIII. The Roman literal contract and its history . 495

IX. Agency 500

Book IV.

Introduction 504

Text and Commentary 513

Excursus X. Earlier history of Roman Civil Procedure 628

Index to the Text 661

General Index 675

CORRIGENDA.

Page 47 (note),y^r Lenel read Lenel.

102 (note), 11. II and 13, for a. pr. read a. i.
a 19 (note), L ZS>/^ promise r/du/ promisee.
a35 (note), L 11, for donet readdonaX.
a43 (note), 1. i'j,/or penliun fVA/ pecidium.
308 (note), 1. S,/or quantum read quantam.
430 (note), 1. 6, before inseri inserf solet.
444 (note), 1. 4,/flr (3) read (4).

GENERAL INTRODUCTION.

The purpose of this Introduction is to give as full an account as
is practicable, in a work such as this edition of the Institutes, of the
history of Roman Law and Legislation. In order to allow the largest
possible amount of space to strictly legal topics, constitutional history
has been avoided, except so far as it seemed that these could not
be adequately understood without occasionally touching upon it. It is
of course impossible to write on the history of any legislation without
taking some notice of the persons or bodies by whom legislative
functions are or have been exercised ; but such digressions from
purely legal matters can fortunately be confined within tolerably
narrow limits, because the Roman system owed so large a part of its
development in point of matter to the praetor, whose powers, so far
as they were legislative, were exardsed indirectly, and it may almost
be said covertly, and in point of form to the jurists, whose constitu-
tional position, despite their direct influence on law, was in reality
quite unimportant.

So far as legislation goes, what will here be said is little more than
a commentary, written in historical sequence, on the seven sources of
law from which the Roman system is said (Inst. i. 2. 3) to be derived.
As regards the system itself, apart from the agencies by which it was
directly developed, or viewed from within rather than from without,
the principal topics which will be treated are the relation of public and
private law at Rome ; the influence of caste, or, more precisely, of the
patridan and plebeian elements respectively on the material character
of the system ; the ' duplication of institutions ' which resulted from
the co-existence of what we may perhaps call a purely national with
a cosmopolitan legislative organ ; the gradual absorption by what was
cosmopolitan of what was purely national ; and the development and
character of the Roman scientific or philosophical jurisprudence*

B

a INTRODUCTION.

Finally, the legislative work of Justinian will be described with
tolerable fullness, concluding, in particular, with an examination of
the scope and system of the Institutes.

Of the form of the earliest Roman law it is possible to speak more
positively than of its matter and contents. The first trace of genuine
legislation is to be found in the Twelve Tables, which the mythical
founding of the city preceded by more than three hundred years.
During these three centuries, the law by which the Romans were
governed was unwritten ; it was pure custom handed down by tradi-
tion from past generations, and doubtless identical in origin with the
usages of the primitive Aryan stock. Modern comparative Juris-
prudence has established resemblances so striking between the
usages of the earliest known inhabitants of Rome, of the primitive
Irish, and of those Asiatic Aryan peoples which have been most
open to observation, that (while admitting that it was modified on
every side by such agencies as climate and the circumstances of
a military people ever in arms) we must allow that the customary
law of Rome, from which a new departure was taken at the time
of the Twelve Tables, was of very great antiquity, though conjec-
tures as to its age are no less unprofitable than idle. How the
custom was preserved, and protected from contamination by foreign
elements, we know from writers on the early history of Rome ; it
was jealously treasured up by the college of Pontifices, who were
the first judges in all matters relating to the family and property,
and who thereby acquired the title of * guardians of the law ; ' * om-
nium tamen harum (legum) et interpretandi scientia et actiones apud
collegium pontificum erant, ex quibus constituebatur^ quis quoque
anno praeesset privatis' (Dig. i. 2. 2. 6).

The statement that there was nothing in the nature of statute law
until the enactment of the Twelve Tables may seem to be contra-
dicted by the existence of the so-called * leges regiae,' of which
however we know little that is certain. 'Leges quasdam et ipse
(Romulus) curiatas ad populum tulit. Tulerunt et sequentes reges,
quae omnes conscriptae extant in libro Sexti Papirii, qui fuit illis
temporibus ... Is liber, ut diximus, appellatur ius civile Papirianum,
non quia Papirius de suo quidquam ibi adiecit, sed quod leges sine
ordine latas in unum composuit' (Pomponius in Dig. i. 2. 2. 2).
From this it would appear that Sextus Papirius, who, according to
Dionysius (iii. 36), was a pontifex, made a compilation of these leges
regiae in the reign of the last of the kings. Dionysius also tells us
that, after the expulsion of the kings, Papirius re-established those of

THE COMITIA CURIATA. 3

which Numa was said to be the author ; and we know a commentary
to have been written on his compilation towards the end of the Re-
public by Granius Flaccus, which is quoted in Dig. 50. 16. 144. It
is clear, from the passage cited above from the Digest, that the jurist
Pomponius assumed the identity of the work, on which Flaccus based
his commentary, with the original 'ius civile Papirianum :' but the
truth of his assumption is much doubted by later historians. So far
as we are able to determine their character, it would seem that many
of these ^ leges regiae ' related to matters of religious ritual, and that
the sanction of even those which laid down rules of law proper was
sacral, not political, so that it is most unlikely that they were clothed
with the force of the law by the * comitia.'

The application of the word 'curiatae * to these leges in the pas-*
sage last cited from the Digest leads one on to describe the origin
and early history *of the comitia or legislative assemblies of Rome.
The earliest of these was the ' comitia curiata,' which, when con-t
voked for certain kinds of business, such as the sanctioning of testa-^
ments (Inst. ii. 10. i), was called * comitia calata.' Whatever opmion
may be held as to the names and ethnic origin of the three tribes
(Ramnes, Luceres, and Tities or Quirites) from whose union the
Roman state is mythically said to have sprung, it cannot be denied
that the populus Romanus, when we first know anything certain
about it, actually consisted of three tribes, each of which comprised
ten curiae, while each curia Consisted of a number pf gentes, and
each gens of an indefinite rounber.pf families, between which there
was originally perBSps a genuine tie of blood, which gradually be^
came a mere 'fiction, respected and supported for the sake of the
ancient family worship and religious rites. The_fami]^ was thus not
merely a microcosm of the state; it was the foundation on which
were bgscjL^l thf privitogts whirh the Romancitizen enjoyed within
tEe state ; the populus contained the tribe, the tribe the curia, the
curia the gens, the gens the femrily, the family the individual ; to ,
belong to the first a man must also belong to the last member of the
series; or rather we should say that primitive law takes little account
of individuals, but of groups, that is to say, of families or gentes
only.

The comitia curiata, and in fact the whole constitution, was based
on this family, gentile, and tribal organization. The comitia curiata,
which was the popular assembly, was composed of all the patres^
familias, possibly of all the males, of the gentes ; it was thus a
gathering arranged on the principle of real or fictitious relationship

B a

4 INTRODUCTION.

(Gellius XV. 27 'quum ex generibus homiQum sufTragium feratur,
curiata comitia esse'), in which the voting was 'curiatim,' each
curia expressing its opinion on the matter in hand in turn. But the
services of the great majority of ablebodied citizens were constantly
required by the military exigencies of a state which as yet drew no
distinction between a stranger and an enemy; consequently, to
superintend the general conduct of affairs, there was a council or
senatus consisting, after Tarquinius Priscus, of three hundred of the
patres gentium, a hundred from each tribe. The principles of de-
mocracy and oligarchy were thus both represented, and two examples
may be quoted to illustrate the ' system of checks and balances ' by
which harmony was preserved between them. The nomination of
the king, or supreme executive magistrate, lay with the senate, but
required confirmation by the comitia, which, by a lex curiata (Inst i.
2. 6), invested him with an imperium of life-long duration, whereby
he became, externally, the leader of the host in arms, internally, the
depositary of the highest administrative functions of government
On the other hand, it was to the populus alone, assembled in its
comitia, that the legislative function belonged, though this function
could not be called into action without the authority of the senate,
which alone possessed the ri^t of submitting subjects for delibera-
tion, and of initiating changes of law; it was the populus which
decided upon war and peace, «nd which chose the king nominally,
and the senators actuaUy : but in the exercise of all these rights it had
P^^ to wait for action to be first taken by the prpbouleutic body, whose

members it chose itself, but whose personal constitution, when once
selected, it could modify only in a constitutional manner.

The origin of the other comitia was later in date. So far nothing
has been said to suggest that there were any inhabitants of Roman
territory who were not citizens — either themselves heads of families,
or subject to the potestas of a paterfamilias. From the very first,
however, there seems to have been a number of free persons dwel-
ling around the three tribes, and yet not belonging to them ; abiding
on Roman soil, and therefore subject to the dominion of Rome, yet
possessed of no civil rights whatever. Some sort of legal status it
was deemed requisite to give them, and this was done by placing
them in immediate relation to some paterfamilias, whereby he be-
came their patron, they his clients. But with the family of their
patron they had no connection ; their connection was with his gens ;
they took the gentile name and became his ' gentiles.' In this way
they were brought within the protection of the law, as dependents of

ORIGIN OF THE PLEBS. 5

a citizen; an object which could not have been secured except
by some such device, for the primitive Roman law recognised no
claim to its support unless the claimant could in some way show that
he was within the pale of the tribal constitution. But the clientes
acquired no political rights, though the public duty of military ser-
vice was imposed upon them, and a considerable force of infantry
was thus added to the resources of the state.

This process, however, of attaching all pcregrini residing on
Roman soil to the populus by the tie of clientela could not be
prolonged indefinitely. Circumstances were gradually augmenting
the number of non-citizens so largely as to necessitate some new
mode of dealing with these classes. The military temper and strong
organization of the Roman people resulted in a continuous addition
of territory to the domains of the city ; little districts, principally of
Latin population, were constantly being annexed, and their villages
razed, the inhabitants being encouraged to flock towards Rome,
because thus they could be most easily cowed into obedience and
hindered from rebellion. These immigrants were at first settled on
the stretch of land, bordering the three hills of the populus, known
from them as esquiliae ; as their numbers swelled, king Ancus, who
was afterwards honoured as the founder of the plebs ('Romuli
Ancique gentem' Catullus 34), assigned thetn the Aventine as a
dwelling-place. This was the population which became the plebs,
and which played so important a part in the strictly legal, no less
than in the constitutional, history of Rome. The question how to
deal with them became daily a more pressing political problem. To
incorporate them into the existing tribe-economy was, to Roman
ideas, quite out of the question; the populus, being based upon
the gentes, was a kind of close corporation whose constitution was
limited by the definite number of gentile aggregates. The plebs
then must remain a body apart from the populus, and therefore its
members could have no political rights. But there seemed no
reason why the private should not be separated from the public
elements of the law ; and the result—- whether it should be ascribed
to a happy accident, or to the deep-seated legal instincts of the
Roman race — was that the plebs was made a participator in all those
rights which, in the later law, are usually described as the private
rights involved in the Roman dvitas. Thus the plebeians had the
commercium, and could acquire property by mancipatio; they
shared the family law of Rome, except so far as this was of a public
character ; that is to say, such parts of family law as preserved and

6 INTRODUCTION.

"perpetuated the tie between family and populus had no relation to
them whatever. The Roman principle of political exclusion led to
considerable results in the field of pure law ; it produced a dupli-
cation of institutions. Thus, the wife of a plebeian could be in his
manus, but they could not be married by conferreatio, which was
publici juris (see Commentary on i. lo pr.) : hence the two other
modes in which manus could be produced, coemptio and usus
(Gaius i. no), may be conjectured to have been of plebeian origin.
Again, the plebeian could have his children under his potestas, but it
may be doubted whether he could adopt by adrogation, which was an
act of high political and religious significance, effected in the comitia ;
hence it is probably to the plebs that we should ascribe the form of
adoption imperio magistratus (Inst. i. ii. i); finally, as a plebeian
could not, at any rate personally, submit his testament to the comitia
calata for legislative sanction, we may suppose that this was the origin
of the will ' per aes et libram ' (Gaius ii. 102), the validity of which
was expressly confirmed by the Twelve Tables. In fact, the com-
munication of private rights to the plebs led to a vast development
of private law. Had the Roman populus contrived to live apart by
itself in arrogant isolation ; had it stubbornly refused to recognise a
tittle of right in any man who was not a member of itself; had it, in
short, not happily hit upon the device of separating the public from
the private portion of the ius Romanum, the history of Roman juris-
prudence would in all probability have been far different from what
it has been\

Under Servius TuUius, the constitution was to a great degree revo-
lutionised by two reforms, which in the end completely altered the
political centre of gravity. The importance of the plebs, on account
no less of its wealth and military use as infantry than of its numbers,
became daily more obvious j it was clear that the time at which its
political position should be recognised could not be long deferred.
It was Servius, of whom it is related (Cic. de Republ. ii. 21) that he
attained the royal dignity by plebeian support, who practically effected
its recognition. It has been already said that the plebs could not
possibly be brought within the political constitution by means of the
personal principle of family, gentile, and tribal connection. Servius
thus had to cast about for a new system of political association, and

' For a different view of the original position of the plebs, in the main derived
from Mommsen, see the article 'Rome' in the Encyclopaedia Britannica, ninth
edition, p. 756.

REFORMS OF SERVIUS TULLIUS. 7

a basis for this was found in the principle of local contiguity. He
divided the plebs into local tribes (or rather ' parishes ') each with its
own president, each occupying a certain district, and each responsible
for a certain quota of taxation and a certain military contingent.
Four of these were ' tribus urbanae,' others, the number of which
seems to have fluctuated with circumstances, 'tribus rusticae;* but
the former only had any political influence until the plebeian
secession, though it is possible that for political purposes the mem-
bers of the country belonged to the town tribes also. Nor can it be
reasonably doubted — in spite of the dissent of Niebuhr — that this
tribal arrangement comprehended the patricians, the old populus in
its three tribes. Its very object was to make the plebs an integral
element in the state, and this could not have been done unless the
reform of Servius had embraced every citizen, every inch of Roman
soil. In point of fact, the new arrangement was based on the prin-
ciple of local contiguity, and therefore comprehended the whole of
Roman territory, large portions of which were in patrician occupation.
The second reform of Servius Tullius in its origin was military, but
it eventually led tp an important constitutional development. By
the new tribal constitution, the old relation between infantry and
cavalry, according to which the former had been but a subordinate
appendage of the latter, had been superseded. Nevertheless, the
distinction of cavalry and infantry still remained a distinction of
caste ; the patrician alone c^uld be an eques ; the plebeian, however
rich he might be, was condemned to serve on foot. To reduce the
prominence of the distinction between plebs and populus, if not to
sweep it away altogether, it was necessary to disconnect the military
organization from the old constitution of curiae and gentes ; to sub-
stitute for this principle a new one ; to base the military system on a
new idea. This new principle, this new idea, were those of timo-
cracy. The leading feature in Servius' second reform was his
division of the whole body of freeholders (assidui), which could be
called on for infantry service, into five classes, in which each man's
position was determined by the amount of his property. The first
comprised all those whose property was valued at 100,000 asses and
upwards ; of the second, the qualification was 75,000 asses ; of the
third, 50,000 ; of the fourth, 25,000 ; of the fifth, 10,000. Those
citizens whose means did not qualify them even for this fifth grade,
belonged to subsidiary, but of course unimportant classes, known as
accensi velati and proletarii. To this proprietary classification cor-
responded an arrangement of the fighting men in centuries or com-

8 INTRODUCTION.

panics of a hundred. Of cavalry there were eighteen centuries, six of
which were drawn from the old populus, in accordance with the plan
of Tarquinius Priscus, and twelve from the plebs. The first of Servius'
new classes furnished eighty-two centuries of heavily-armed infantry ;
the second, third, and fourth, twenty fighting centuries each, and also
a couple of additional companies, consisting of buglers and musicians;
thirty centuries were contributed by the fifth class ; at each step down-
wards in the scale the armour became lighter, the equipment less
complete. The full number of centuries seems to have been one
hundred and ninety-two.

It is, however,, the political side of the centurial organization which
is of most interest in the history of Roman law, though this was not
a working reality until after the expulsion of the kings. The principle
which underlay its application to this branch of the national life was
this — that a man ought to have an influence in public afiairs pro-
portioned to the burdens which he bore in defending the state
against its external foes. On the expulsion of the kings we find the
centurial organization adapted to a new political assembly, the
comitia centuriata, which was destined to throw the old assembly of
the patricians at once into .the shade, and to engross the discussion
of public questions, such as war and peace, legislation as ^matters
affecting the constitution, the choice of magistrates, and the decision
of all judicial proceedings which involved the ' caput ' of a Roman
citizen. In the comitia centuriata, where each century had a single
vote, the influence of the richer middle class had an irresistible pre-
ponderance. In the order which furnished cavalry, the patrician
votes were outnumbered in the proportion of two to one by those of
the plebeians ; while the eighty votes of the first of Servius* infantry
classes formed a compact political force which could win or lose the
day in a contested election, or on a public question upon which
opinions differed. The political, however, were not precisely identi-
cal with the military centuries \ the proportion between the classes
was the same, but by the addition of a proletariate suffrage the
number of military companies was exceeded by the number of votes
in the comitia by one.

With the expulsion of the sons of Tarquinius Superbus (circ. 509
B.C.) the kingly government of Rome came to an end. The act had
been that of the patricians \ but the plebeians were in full accord
with them. The constitutional functions of the king were vested in
two supreme magistrates of co-ordinate authority, who were chosen
from year to year, and called at first praetors, and later consuls ; of

THE FIRST PLEBEIAN SECESSION. 9

the fiftt tw6 who were elected one was the plebeian L. Junius Brutus.
It would secern too that the plebeians now gained the entree to the
senate-— •t least, henceforward two classes of senators are distin-
guished— patres and conscripti. But no provision apparently was
made to secure an adequate senatorial representation of the plebs,
and after Brutus there is no plebeian consul for very many years.
This will make it clear at once that, though the plebs commanded an
overwhelming majority in the comitia, its political influence in general
was far less real than might be supposed. A mine of gunpowder is
harmless unless there be some one to apply the match; and the
practical helplessness of the plebeians will be comprehended if we
remember three facts. In the first place, no citizen could constitu-
tionally bring any matter before the centuries except one or other of
the consuls. In the second place, the senate still preserved its pro-
bouleutic function already described ; that is to say, even a consul
could not submit a single question to the comitia until it had pre-
viously been discussed by the senate, and its reference to the larger
assembly had been approved by that body. Thirdly, it was required
that all elective or legislative acts which needed a religious sanction
should be confirmed by a lex curiata in the comitia of that name, in
which it will be remembered that patricians alone were entitled to
take part; such confirmation was essential, for instance, to the
validity of consular elections, for on consuls a lex curiata alone could
confer the imperium, and of all alterations in the constitution.

The first secession of the plebs (b.c. 494) seems to have been
occasioned principally by financial distress. Unsuccessful wars
against the allies of the royal family of the Tarquins had largely
increased taxation, and taxation fell in the main on the plebeians
alone. The story of Athens in the time of Solon was once more
repeated. The patricians availed themselves of their comparative
freedom from financial burdens to cast the net of usury round the
plebs, and the severe form of execution in vogue for debt was
abused for political purposes. Returning from a campaign, the
plebeian section of the host occupied a hill in the vicinity of Rome,
subsequently known as the Mons Sacer, and refused to re-enter the
city. There they were joined by the rest of the plebs, and threats
uttered of a permanent secession, and of the establishment of an
opposition state. The patricians saved themselves from a catastrophe
which would have thrown the history of Rome centuries backward,
and, in all probability, totally altered its character, by conceding
certain reforms, by surrendering certain of their privileges. An

lo INTRODUCTION.

; agreement was concluded between the two orders, by which the
plebeians were in future to have two special elective magistrates of
their own — a number very shortly raised to five, and then to ten —
whose office none could hold unless he were himself plebeian. The
function of these * tribunes *of the plebs' was to protect members of
their own order against the consuls, and those who violated their

i personal liberty or security were to be outside the law; they were
not, like the consuls, magistrates of the Roman people, and therefore
could not take the political initiative. Gradually, however, this
limited authority was thrown into the shade by the unrestricted right
of veto which is so familiar to readers of Roman history, and which
eventually enabled the tribune to paralyse the whole machinery of
government. This growth of tribunician power was mainly the
result of the organization of the plebs as a politfcal force by its new

' leaders. Assemblies of that order, known as concilia plebis, were
summoned by them, in which their grievances were ventilated, and

, resolutions were carried demanding redress. These could be laid
before the Senate by the tribunes, who, though not members of that
body in virtue of their office, were permitted for this purpose to
appear at the threshold of the building where it held its deliberations :
if approved, these proposals could then be referred in the ordinary
way to the assembly of the centuries, and thereby become genuine

/ enactments of the sovereign populus\ It will shortly be seen that

\ when the jealousies between the plebeians and patricians had abated,
these concilia plebis expanded into a new comitia. Measures were
also taken to relieve insolvent debtors from their obligations, and
promises were made of reforms in this branch of law.

One or two other subjects of plebeian complaint may be here
mentioned, along with the half measures by which it was attempted
to remedy them, in order to show that the enactment of the Twelve
Tables was preceded by a period of discontent and even active
agitation, and that the relations of the two parties were still in a sort
of ferment, and incapable of satisfactory adjustment except by some
constitutional reform of more than ordinary comprehensiveness.
Numbers of the leading plebeians were injured by the exclusion of
connubium between themselves and the patrician order. Though
this anomaly had originally been grounded on political considerations,
it was now retained for purposes of mere annoyance only ; but the
deliverance of the plebeians was not yet. Even now too they were

] Valerius Maximus, ii. a. 7.

THE TWELVE TABLES. II

Still legally incapable of possessing the ager publicus ; and this ap:
peared the more hard, because, on the one hand, their taxation was
out of all proportion to that of the patricians, while the possession
of the ager publicus was untaxed, and yet, on the other, it was
mainly through their own valour that it had become ager publicus
at all. Some slight compensation was made for this by a lex Cassia
(b.c. 486) which effected a distribution of newly-conquered territory,
and placed some restrictions on the patrician enjoyment of the public
land. A third grievance was the unlimited power of the magistrates
to inflict pecuniary fines ; this was curtailed by the leges Menenia,
Taipeia, and Papiria, passed between 460 and 430 b.c. Lastly, the
patricians controlled the entire administration of justice ; it was the
consul who presided over the preliminary stage of every action, and
if he did not decide it out of hand, the judges were most usually
the patrician decemviri, upon whom this function had been cast by
Servius TuUius, it was the pontifices themselves, members of the
patrician caste, who interpreted the law, and solved its knotty prob-
lems. Moreover, the very enforcement of the law depended on the
observance of minute forms and technicalities of which, by reason
of their implication with the ius sacrum, the plebeian could know
little or nothing. Some slight amelioration of these hard conditions
must have been afforded by the lex Pinaria^ which belongs to this
period, and which, in certain classes of actions (we may suppose, in
particular, actions of debt), allowed the parties to choose a single
judge, to the exclusion of the magistrates' own jurisdiction and of the
decemviral court (Gains iv. 15). But the class from which the judge
was to be chosen seems to have been limited in some way of which
we have no certain knowledge; and the chief interest of the lex
Pinaria is that it served as a precedent for the principle enunciated
by Cicero (pro Cluentio 43) in the words *neminem voluerunt
maiores nostri esse iudicem nisi qui inter adversarios convenisset.'

In the year b. c. 462 the tribune Terentilius had procured a reso-
lution of the plebs, ' ut quinque viri creentur legibus de imperio con-
sulari scribendis,' which the senate refused to send on to the comitia
centuriata. Nothing daunted, he proposed, in the next year and in
the same way, a codification of the whole law by decemviri. This
last hint was taken, after an interval of ten years, by the patricians ;
they consented (b.c. 451) that the powers of consuls and tribunes
should for a while be suspended, and the whole authority of the

^ Its date was, aocording to Hnschke, B.C. 472 (Verfassting des Servius, p. 595).

12 /INTRODUCTION.

state entrusted to ten commissioners, on whom was imposed the task
of codifying the public and private law of Rome. In that same year
they subipitted to the people a code of ten tables, which, along with
two tables added in the following year, were accepted, as genuine
statute law, by the comitia. These were the celebrated Twelve
Tables, described by Livy as * corpus omnis Romani iuris,' and 'fons
publici privatique iuris ; ' as * finis aequi iuris ' by Tacitus, though in
reality not so much 'finis' as a fresh starting-point for a new and
vigorous legal development. * Placuit publica auctoritate decem con-
stitui viros, per quos peterentur leges a Graecis civitatibus, et civitas
fundaretur legibus, quas in tabulas eboreas (?) perscriptas pro rostris
composuerunt, ut possint leges apertius percipi, datumque est eis
ius eo anno in civitate summum, uti leges et corrigerent, si opus
esset, et interpretarentur, neque provocatio ab eis, sicut a reUquis
magistratibus fieret. Et ita ex accedenti appellatae sunt leges duo-
decim tabularum, quarum ferendarum auctorem fuisse decemviris
Hermodorum quendam Ephesium, exulantem in Italia, quidam
retulerunt' (Pomponius in Dig. i. 2. 2. 4).

The allusion to the Ephesian Hermodorus contained in this pass-
age, and the reference (which is confirmed by older writers, e. g,
Livy iii. 31, 32, 33, Servius in Verg. Aen. vii. 695) to an embassy of
which he was the interpreter, and which the Romans sent to Greece
to search out the laws of her cities, and especially those which Solon
had given to Athens, has led many historians to believe that a large
proportion of the decemviral legislation was derived from foreign
sources, and some even to suppose that the whole of it, in substance,
was Greek law. It would seem that in point of fact no theory was
ever wider of the truth : the foreign influence was trifling, and left
little or no trace whatever on the private portion of the code \ A
consideration of the task of the decemvirs confirms a conclusion
suggested by such knowledge as we possess of the result of their
labours. To remove the uncertainty of the law, which was an
inevitable consequence of its form, as in the main unwritten custom
and tradition, and which favoured capriciousness in its adminis-
tration by the magistrate: so far as possible, to place all freemen,
irrespective of their birth or order, on the same footing in respect of
legal right and duty; and to put an end to plebeian discontent
arising from economical conditions — these were the chief objects to
be attained, and it would not seem that their attainment would be

^ For a careful examination of this question see Voigt, xii Tafeln, I. p. 1 1 sq.

THE TWELVE TABLES. 13

promoted by even a liberal adoption of foreign usages. In the
extant porticMis of the Twelve Tables there are unmistakeable traces
of the equalising policy : the ius sacrum was to a considerable extent
stripped of its exclusive character, and the law of procedure, as to
which we have important fragments, was settled upon a basis which
gave justice a &ur chance of being administered by saving from
magisterial caprice the decision of most points upon which the suc-
cessful bringing of an action depended. How far the Tables were
a complete codification of existing rules must always remain some-
what doubtful It appears beyond dispute that being intended as an
exposition of the general civil law, applicable to all classes alike, they
did not regulate {»actices or institutions peculiar to either order, such
as the older forms of marriage and adoption ' : nor did they include
the l^es r^iae, law and religion having now been differentiated.
Much again relating to the effects of legal acts and dispositions,
which was matter of common knowledge and formed no subject of
dispute, remained, as we might say, 'common law,' the familiar
possession of every citizen, and the same remark may be made of
many laconic aphorisms similar to others which we know to have
been embodied in the Tables. Finally, it may be observed that the ]
enactment of the Twelve Tables is also direct evidence of the inde- '
pendent position which private law had won for itself under plebeian
auspices, and at the same time starts it on a new career of develop-
ment ; it was no longer the peculiar province of the plebeian order ;
but having been sanctioned by the whole populus in its comitia,
it b^an to be looked on more by all parties as the best security for
order and prosperity. But this is part of a subject on which there is
great diversity of opinion, and to which we shall shortly return — the
relation, at Rome, of private to public law.

English lawyers in particular will fully appreciate the advantage
which was secured by the expression of the law in a more scientific
and therefore more convenient form than that in which it had hitherto
been clothed. But it was a still larger boon that provision was made
for its being generally known by all citizens who cared to make them-
selves acquainted with it. Historical analogy would perhaps lead us
to suppose that the knowledge of the law had hitherto been engrossed
by the patrician caste, as represented by the pontifices, who are de-
scribed in a passage of Fomponius already cited (Dig. i. 2. 2. 6) as
the only masters of the legal rules and forms of procedure at that

^ £.£. Gaiua, uL 8a.

14 INTRODUCTION.

time binding. But it has already been suggested that private law
was to a large degree of plebeian creation, and the sole possession of
legal knowledge by a dominant aristocracy is truer of the Greek
oligarchies than of Rome, of which we may, with some qualification,
accept the view of the German historical school of jurists, who assert
that the material law was no secret, being founded on the common
legal consciousness (Rechtsbewusstsein) of the nation as evidenced
and attested by its usages and customs. Still, it is of no avail to
know the law, if one cannot get one's rights protected and enforced
by action ; and of the forms of actions, as already observed, the
plebeian could know little, through their implication with the ius
sacrum. The decemviral legislation introduced simplicity and uni«
formity into these ; it was exposed in a public place for all to read,
and from the fact that in Cicero's boyhood the Roman youth was
used to learn the Twelve Tables by heart, it is evident that they were
long used as the foundation of a legal education as, in the three
centuries and a-half preceding the legislation of Justinian, a mastery
of the Institutes of Gaius was considered the proper groundwork of
an adequate knowledge of the law. For nearly a thousand years
they remained the only complete legislation which professed to
embrace the whole positive law of Rome, and though in point of
fact the greater part of their original substance was repealed or
modified by subsequent enactments, the Roman citizen, even under
the Empire, always continued to revere them as the solid basis of the
noble system of jurisprudence by which all his rights and duties were
determined ; and it was only by the great work of Justinian that,
nine hundred and eighty-four years after their enactment, they were
formally deprived of their authority.

At this point it will be well to pause in order to look back over the
centuries behind us and try to ascertain what was the material con-
tent and what the scope of the customary law which, as we have
seen, was to the early Romans the only rule of life, and which was
summed up and (if we may use the expression) codified in the
Twelve Tables. Ausonius (Idyll xi. 6i) describes the contents of
the latter as *ius triplex:'

'Sacmm, privatnm, popali commune quod usquam esU*

But even if we admit the substantial accuracy of the attempts
which have been made to reconstruct the Tables in outline it is
not easy to distinguish these three elements with any precision.
There appears to be no doubt that the first three Tables dealt with

PUBUC AND PRIVATE LAW. 15

civil procedure, from summons down to execution of judgment.
According to the most recent authority on the subject *, the fourth
regulated inheritance, both testamentary and intestate, and patria
potestas : the fifth various titles to property, servitude, and con-
tract : the fifth and sixth related to divorce and the two varieties of
guardianship : the seventh to delict and usury : the eighth to a
variety of topics, including the relations of adjoining proprietors and
certain criminal matters : the ninth continued the latter subject, and
prescribed the procedure on criminal prosecutions : the tenth regu-
lated interment : while the last two made provision for appeals firom
the action of the magistrates, and contained other subordinate en-
actments. The scantiness of the law relating to contract is note-
worthy.

Legal antiquaries on the continent who have accepted as sub-
stantially true the m)^h which ascribes the origin of Rome to the
union of three tribes belonging to different ethnic stocks, two of
which are by them identified as Pelasgic and Sabine', have spent
much ingenuity in attempting to detect the original diversity of the
elements contributed to the common stock of jurisprudence by the
two dominant tribes, and to trace the gradual process by which these
were blended into a homogeneous system of law. They speak of
the element peculiar to the Ramnes, as opposed to that peculiar to
the Quirites ; the genius of the former people lay in the direction of
conquest and activity in external relations, that of the latter in the
promotion of domestic order and peaceful internal development; and
the genius of each is supposed to have reflected and reproduced
itself in their legal habits and in their modes of life and thought. Such
speculations assuredly cannot claim our serious attention; but a
question which is suggested by them is of larger interest, because the
answer to it will affect our judgment upon the general character of
the legal system through a great part of its history, and will deter-
mine our explanation of many of its most peculiar phenomena. It is
the view of many who have deeply studied the institutions of Rome
that, in its infancy, the consciousness of the people as a military state,
which had perpetually to be defending its very existence with the
sword, asserted itself so irresistibly as to colour the law of Rome to
the very end of its history. In periods of grave national peril citizens
always realise most fully their membership one with another, and are
inost ready to sacrifice the fleeting interest of the individual to the

* M. Voigt, die xii Tafeln, 1883. • Puchta, Institutioncn, i. p. 73.

l6 INTRODUCTION.

higher and more engrossing requirements of the state. Hence is
inferred a fact which (as it is represented) left its mark upon Roman
law even in the age of Justinian, twelve hundred years after the epoch
which we are now considering ; the fact, namely, that in the earliest
period of the nation's history almost every relation with which juris-
prudence has ever had any concern was dominated by public law, or
by the idea, expressing itself in law, that beside, or apart from, the
state, the citizen is as nothing, and that he has no ground for com-
plaint if his family life, his religion, his dealings with his fellow men,
his very liberty and life are treated principally as means to the end of
government, and placed under state control. The position of the
family in the state economy has been already indicated. The very
existence of the people, as an organic whole, depended on the main-
tenance of the gentes through families ; and as a new family could
arise only from the lawful wedlock of two citizens, marriage was made
a public act and placed under sacerdotal supervision; the solemn rite
of confarreatio (Gains L 112), by which alone it could be con-
tracted, was a ceremony of deep public and religious import.
Again, through lack of children, or through the death of such as
might be bom, a family might be in danger of dissolution ; hence
the supreme political importance of the institution led to the recog-
nition of adoption as an artificial means of perpetuating its existence;
and adoption, too, was a public act, accomplished under the auspices
of the priestly college before the comitia curiata.

There is perhaps less probability in the alleged extension to the
field of property of this domination of public over private law. The
old principle of lav» it is said, laid it down that conquered land and
captured booty belonged, primarily, to the state, and that it was
through the state alone that it could become the property of indi-
viduals. Thus, according to the view now under consideration, no
citizen originally owned an inch of Roman soil; he could only
possess and enjoy it by permission of the populus, and it remained

* ager publicus * until the settlement of large numbers of strangers on
Roman territory had brought into prominence the legal distinction
between civis and peregrinus, a distinction which then became em-
phasised by the former being held capable, the latter incapable, of
owning land ex iure Quiritium. But to maintain the principle that all
res mobiles belonged, ultimately, to the state, was less easy. On one
explanation, however, of a famous distinction of Roman law — that of

* res mancipi ' and * res nee mancipi * — the traces of that principle were
retained until the distinction itself was swept away by Justinian. It

PRIVATE AND PUBLIC LAW. 17

is suggested that the idea that all * res mobiles * belong ultimately to the
state survived only in connection with certain subjects of property —
things, in other words, which usually form the staple of military booty,
and of which individuals were thus most likely to have got possession
by concession from the state. This idea, it is maintained, led to the
introduction of a peculiar mode of alienation for these kinds of ob-
jects, namely, mancipatio, in which the sanction of the populus to the
transaction was supplied by the presence of a definite number of
witnesses who were full citizens of Rome (Gaius i. 119)*. But what-
ever may be the truth as to the distinction of res mancipi and res nee
mancipi, we know that for many centuries a slave could not be
effectually enfranchised except by a public act; that the earliest
forms of wills were dispositions sanctioned either by direct legislative
authority of the populus or by its representatives, the five witnesses
of the mancipation ; and that the earliest mode in which a binding
contract could be concluded was possibly the so-called nexum, which
in all essential features was identical with mancipation. Thus the
authority of the populus — the sanction of public law — was required

^ This is but one of many views as to the origin of the distinction. Sir Henry
Maine (Ancient Law, p. 375) says : ' The explanation which appears to cover the
greatest number of instances is, that the objects of enjoyment hononred above the
Test were the forms of property known first and earliest to each particular com-
mnnity, and dignified therefore emphaticaUy with the designation of Property,
On the other hand, the articles not enumerated among the £Bivoured objects seem
to have been placed on a lower standing, because the knowledge of their value
was posterior to the epoch at which the catalogue of superior property was settled.
They were at first unknown, rare, limited in their uses, or else regarded as mere
appendages to the privileged objects. Thus, though the Roman res mancipi
included a number of moveable articles of great value, still the most costly jewels
were never allowed to take rank as res mancipi, because they were unknown to
the early Romans.* Ihering thinks that the res mancipi were those objects of
property essential to the maintenance of the joint family life : ' ohne beides (i. e.
free persons and res mancipi) last es sich ein ordentliches Hauswesen, eine
gesunde Wirthschaft gar nicht denken' (Geist des romischen Rechts ii. p. 165).
Other explanations are based on the actual market value (Kostbarkeit) of the
objects (Cujadus, Bynkershoek), or on the supposition that a special return of res
mancipi was required in the census (Puffendorf, Gottling). Tlie last theory is in
substance adopted and ably argued by Prof. Muirhead (Roman Law, pp. 57-64),
who attributes the distinction to Servius Tullius, the founder of the census : res
mancipi meant ' a man*s land and its appurtenances : * and ' in order to ensure as
far as possible certainty of title, and to relieve the officials of troublesome investi-
gations of the genuineness of every alleged change of ownership between two valu-
ations, it was declared that no transfer would be recognised which had not been
effected publicly, with observance of certain solenmities, or else by surrender in
court before the supreme magistrate (in iure cessio).'

C

J 8 INTRODUCTION.

to validate almost every dealing between Qian and man, whether it
was a marriage, a sale, a contract, the manumission of a slave, the
emancipation of a son, or a testamentary disposition.

The prominent influence of the plebeian element of the state in
the development of private law has been already alluded to as a fact
which by itself appears beyond question. The theory now under
discussion has the merit of explaining this fact, and of carrying the
history of the evolution of private law even further backwards. Suits
in which religious considerations or a religious sanction were involved
were submitted for decision to the pontifices, presided over by the
}cing as pontifex maxim us ; and it is represented that religion occu-
pied so large a sphere in the life of early Rome that the whole of the
original law may be regarded as partly ius publicum, partly ius
sacrum. What was subsequently known as * ius privatum ' attained
a gradual recognition and advanced by timid steps to independence
under the protecting aegis of ius sacrum ; * ius sacrum was the form
which private law at first assumed, and in which it first received an
independent though subordinate existence, as against the absorbing
and preponderating weight of ius publicum.' But the plebs, when it
became an integral part of the Roman state, was free from all pre-
judices based on the history of the populus; and *it was in the plebs
that the ius Quiritium, the private portion of the code, received
its full development, and from the plebs that Rome got an idea
which perhaps otherwise she would never have got — the idea of a
private person.' The relations of a private person must be governed
by private law, and thus 'it is to the plebeian element in the state
that the main institutions of private law are to be ascribed. Some of
these developments— the new forms of marriage and of adoption —
have been already suggested. But the plebs consisted of persons
who were no part of the populus; exactly then as the members of the
latter (who had now come to be called patricians) could only possess
and enjoy land, but not own it, so the members of the former,
precisely because they were not of the populus, could only, if they
were to hold land at all, hold it in absolute private ownership, ex
jure Quiritium. And thus, it is argued, private ownership of land
originated with the plebeians, and was extended to the populus from
a feeling that the latter ought in no way to be inferior to a population
which politically lay so far below it. Similarly, emancipation, as a
form of escape from patria potestas, manumission of slaves and the
resulting patronatus, nexum, and manus injectio, are all supposed to
have been institutions due to the plebeian development of private law.

PRIVATE AND PUBLIC LAW. 19

This view, however, of the relation of public and private law in
early Rome, attractive though it is, and though very widely accepted,
has not passed without challenge. By its chief opponent^ the earliest
character of the Roman law is explained by reference to another
principle, that of the * subjective will,' or mere brute force and indi-
vidual strength, uncontrolled by any state organization whatever.

* Might is right ' is the first principle by which disputes between man
and man are determined. This social condition is followed by a
period in^hich self-redress is no longer arbitrary, but is regulated by
minute rules sanctioned by custom* j and eventually the stage of
legal history is reached which is so vividly represented to us in the

• legis actio sacramenti,' disputes being referred at first to the arbi-
tration of a * vir pietate gravis,' though a private individual, and
subsequently to that of an official of the state. The question thus
arises, What then is the origin of the state ? This is found in the
family organization, and in the association of a number of families
connected by real or fictitious relationship for the purpose of common
defence, and forming an aggregate known to us as the gens : ' die
Gens ist eine Famihe im Grossen, und ein Staat im Kleinen.' The
individual thus precedes the family, the family the gens, and the
gens the state; and from the point of view of the 'subjective
principle' the state is based upon a contract or quasi contract,
whence the connection of the terms pax, pactum, pacisci.

To those who hold this view, private law appears, in origin,
entirely independent of the state. 'The plausibility of the theory
(first stated) is due to the public forms in which private law at first is
clothed, and to the absence of opposition between the different parts
of the system. It is, however, just those forms which prove that the
state, in itself, had nothing to do with private law ; for their very
purpose is to place the two in a relation to one another which
previously did not exist ; and that absence of opposition consists, not
in the domination of private law by the state, but of the state by
private law : that is to say, the state is constructed on private law
principles. The evolution of private law out of the state would be a
contradiction of all history'.' Nor is the force of this argument in
any way weakened by the admitted fact that the principal dispositions
known to early Roman law were effected under state supervision
(p. 18, supr.). The object of this was to obtain a public guarantee

* Ihering, Geist des romischen Rechts, part i. bk. i. ($9-19: 'die Ausgangs-
pnncte oder die Urelemente des romischen Rechts.*

' Maine, Early History of Institutions, p. 273. ' Ihering, p. 219.

C 2

ao INTRODUCTION.

for the rights which they conferred; a citizen who disputed such
rights would be resisting the authority of the whole people. And it
is conceivable that the idea of law backed by irresistible force, with
which Austin has made us familiar, and which is peculiar to societies
in which the judicature is and has long been organized on an effective
system, was developed out of this expedient of defending individual
rights, through the medium of a form, by the collective force of the
whole community: *das Concrete war hier wie so oft in der Ges-
chichte des romischen Rechts die Briicke zum Abstracten ; aus dem
Schutz der Rechte entwickelte sich der Schutz des Rechts.*

Like so many other irresponsible rulers, the 'decemviri legibus
scribundis * were corrupted by the taste of power which they had
enjoyed ; so much did they relish it that they attempted to make
their own office permanent, and to revolutionise the form of govern-
ment by substituting themselves entirely for the consuls and tribunes.
Pretending to make an 'exaequatio iuris' the main object of their
policy, they set to work to attain it by reactionary measures ; but the
plebs, whose interests were mainly threatened, saw through the
design, and resorted once again to the well-tried stratagem of a
secession. The fall of the decemviri marks an important epoch in
the history of that order. It would seem that the concilia plebis,
whose frequent convocation we have seen to have been a principal con-
sequence of the institution of the tribunate, had so rapidly gained
weight that by a lex Publilia of 471 B.C. their legality was recognised,
along with the constitutional right of the tribunes to submit resolu-
tions for discussion therein, though it was not yet admitted that such
resolutions, when carried, were of binding force for the people at
large. The voting in such concilia was 'tributim' — according to
the Servian division into districts or parishes — so that it can hardly
be doubted that a patrician who chose to attend with others who
belonged to the same local tribe as himself had the constitutional
right to do so. It may perhaps be conjectured that some inclination
of the patricians to take part in these meetings, added to the valuable
assistance which the plebeians had rendered in overthrowing the
decemvirs, led to the passing (b. c. 449) of a statute named after the
two consuls Valerius and Horatius, by which it was provided ^ * ut
quod tributim plebs iussisset populum teneret' It is generally ad-
mitted that in consequence of this enactment the plebeian concilia
became from this time onward a regular lawmaking assembly,

* Livy iii. 55 ; Dionys. xi. 45.

THE COMITIA TRIBUTA. a I

comitia tributa, possessed of legislative power concurrent with the
comitia centuriata, though their resolutions (plebiscita) were not as
yet binding unless confirmed by the Senate. There is, however, a
great difference of opinion as to the constitution of the new comitia.
Upon one view, which is supported by Gains i. 3 (reproduced in
Inst. L 2. 4), it consisted always of plebeians only : upon another,
every citizen, being a member of a tribe, was necessarily entitled to
vote in it, whether plebeian or patrician. It must be confessed that
the latter opinion has a considerable balance of textual authority
against it, but on the other hand it may be argued that these very
authorities are obscure and unintelligent on early constitutional his-
tory, and that it is difficult to believe that so absolute a legislative
power could have belonged to only one portion of the community,
even though it were one whose numbers, wealth, and political in-
fluence was so constantly increasing. It seems more probable there-
fore that the constituent elements of the two comitia were identical,
the difference between them lying in the fact that in the one the
voting was by centuries, in the other by tribes : and the language of
the historians in so habitually associating the plebs with the latter
may be attributed to its origin and earlier history, the fact rather
being that when the patricians and plebeians had ceased to be in
constant opposition they both took part indifferently in the proceed-
ings of both lissemblies ^ By a second lex Valeria-Horatia it was
provided that in future no new magistrate should be created from
whose decisions there should be no appeal (provocatio) to the cen-
turies.

The measures by which the coveted ' exaequatio iuris ' was finally
attained require a brief review. The lex Canuleia (b.c. 445) legiti-
mated connubium between patricians and plebeians, and by uniting
the members of the two orders by the tie of blood rapidly paved the
way for the other enactments which at length welded them into an
united people, with identical interests, and equal one with another in
the eye of the law. Two years later was introduced the office of
censor, which immediately became of large political importance.
The duty of making out the lists of citizens in their various classes of
course involved a very considerable power of affecting the individual
in his political rights ; thus, for instance, the censors were privileged

* This view is lield by Mommsen, Rom. Forsch. i. p. 154 sq. ; Karlowa, Rom.
Rechtsgeachidite i. p. 118 sq. ; Padeletti, History of Roman Law, ch. iv. note 7 ;
and Mniihead, Roman Law, p. 85.

22 INTRODUCTION.

to exclude a man from the senate, to deprive an eques of his horse
and rank, or to remove a plebeian from his tribe, on account of
defects not only of legal qualification but even of moral character ;
while as moribus praefecti they could lower his position in the eye of
his fellow-citizens by the subscriptio censoria, or mark set against his
name in their official list — the sure indication of dishonesty or pro-
fligacy. Among the other functions through which they gained their
political influence may be enumerated the administration of the public
revenues, the farming of the customs, and the making of all contracts
for public works.

At the time of the passing of the lex Canuleia, the plebeians had
striven hard to gain access to the consulship, but their efforts had
been baffled by the patricians, who, however, Conceded that a new
magistracy should be established, Hribuni militum consulari potestate,'
to relieve the consuls of some of their duties, and to this new office
members of the plebs were to be eligible. At first it seems to have
been frequently held by plebeians, but by degrees the patricians
succeeded in making it almost as exclusively their own as the consul-
ship had ever been, and Livy represents (vi. 37) a tribune of the
plebs as saying in the year B.C. 369 that no plebeian had attained this
magistracy for forty-four years. Seven years before that date C. Licinius
Stolo had renewed the plebeian agitation for admission to the consul-
ship, and in b.c. 367 he succeeded in procuring a statute by which
the military tribuneship was abolished, and it was provided that one
at least of the consuls should be chosen from the plebs. The same
date is usually assigned to the introduction of the praetorship, an office
which seems really to have been in existence for some time previously,
and of which more will be said hereafter. The praetor was charged
with the administration of civil justice and the general management of
domestic affairs, so far as they had not been already appropriated to
existing offices. The institution of the curule aedileship belongs to the
same period, an office at first exclusively patrician, but soon thrown
open to the plebeians also ; the aedile's functions, which at first re-
lated only to certain affairs peculiar to the patrician order, such as
the games of the great festivals, were very shortly extended to all
matters, whether connected with the public health, religion, morality,
streets, buildings, or security of person and property, so far as they
could be placed under the control of police.

Besides the lex Licinia by which the consulship was opened to the
plebs, there are two others of the same name, which were due to the
energy of the same Licinius Stolo. Of these one was designed to

LEGES PUBULIAE AND HORTENSIA. 23

relieve embarrassed debtors by striking off from the amount of their
principal debts the sums which they had paid as interest, and by
allowing them an interval for the complete satisfaction of their
creditors; the other was a land law in favour of small holdings,
which prohibited even the richest from owning more than five hun-
dred jugera of arable land, or putting more than one hundred head of
cattle and five hundred sheep to graze upon the public pastures.
Before long, too, an adequate senatorial representation of the plebs
was secured by the lex Ovinia (circ. 350 B.C.), which directed the
censors, in the selection of the senate, to choose the fittest persons
without distinction of order :*.... donee Ovinia intervenit, qua
sanctum est ut censores ex omni ordine optimum quemque curiatim
(imati, Meier, ex coniectura) in senatum legerent * (Festus). Magi-
strates of curule rank (consuls, praetors, and aediles) were members
of the senate ex-offido^ and retained their seats even at the end of
their year of office, until the next revision of that body by the cen-
sors, when their re-election depended on the view which those
magistrates took of their merits.

Further provisions relating to the comitia were contained in the
leges Publiliae, which were passed in b. c. 339, at the instance of
Q. Publilius Philo, a plebeian dictator. One of them appears to
have merely re-stated the enactment of the lex Valeria Horatia
respecting plebiscita (* ut plebiscita omnes Quirites tenerent ' (Livy
viiL 1 2), though some writers are of opinion that its true object was
to do the same for plebiscita as another law of Publilius did for
leges passed in the comitia centuriata : others, that it made plebiscita
binding on the plebeians apart from senatorial confirmation. But
the statute which Gaius (i. 3) and Justinian (Inst. i. 2-4) regard as
having placed the validity of plebiscita above all doubt was a lex
Hortensia, passed b. c. 287. The language in which Pliny* and
Gellius ' describe its provisions differs little from that used of the
leges Valeria Horatia and Publilia by Livy : but it is clear that it
must have relieved the enactments of the comitia tributa from soine
conditions to which they had hitherto been subject, and it is '
generally supposed that its real effect was to dispense them from
the necessity of any confirmation whatever by the senate. The
numbers of the plebs were largely augmented b. c. 312, when Appius
Caecus, the censor, distributed among the tribes a great mass of
libertini, a term which at this epoch denoted the freebom descendants

* Hist. Nat. xvi. 10. * xv. 27.

24 INTRODUCTION.

of a manumitted slave \ These libertini were thus enrolled in the
centuries, and possessed very considerable influence through the
wealth which they derived from their almost exclusive control of
Roman handicrafts and commerce, occupations which were deemed
humiliating and derogatory to genuine Quirites ; in Rome they
played the part, and exercised the influence, though in a far less
degree, which with us are connected with * the city.' Eight years
later than the censorship of Appius Caecus, the democratic tendency
of his measure was to some degree counteracted by the new censors,
Q. Fabius and P. Decius, who confined the *forensis turba' of
libertini to the four city tribes, and thus reduced the preponderance
which the lower orders had acquired in the two important comitia.
A second lex Publilia enacted * ut legum quae comitiis centuriatis
ferrentur ante initum sufiragium patres auctores fierent ; ' it thus at
first sight merely reaffirmed the constitutional doctrine, that no bill
should be submitted to the centuries, with a view to its becoming
law, unless it had been previously approved by the senate : but it is
generally supposed to have deprived the patricians of the power,
which they seem to have exercised before, of rejecting laws properly
passed by refusing a subsequent ratification by the senate. In
future the senatorial approval was required to be given in all cases
before the bill was referred to the popular vote. It is clear from
Cicero that in his time the Servian centurial constitution had under-
gone considerable alterations, effected by in some way combining
the centurial organization with that of the tribes. The two comitia,
with their respective functions, still remained perfectly distinct, but
the centuries had been incorporated with the tribes; Cicero (pro
Plane. 20) expressly speaks of them as thus incorporated, and in
another passage alludes to the votes of the tribes in his own election
as consul. The exact date of this change is uncertain. Niebuhr
ascribes it to the censors Fabius and Decius ; Mommsen places it
somewhat earlier. Its motive was apparently the desire to reduce
the influence of moderate fortunes in the comitia, and to exalt that
of birth, landed property, and military rank. The proprietary
qualification for even the first of the Servian classes had, through the
growing prosperity of Rome, ceased to be the measure of a consider-
able fortune or even the index of social respectability ; thus a great
mass of the lower middle class had found its way into a body which
•Servius had conceived as consisting of only the higher or richer

^ Suetonius, Clandins, 24.

THE COMITIA TRIBUTA AND CENTURIATA. 2$

orders. The same observation may be made of the second and
succeeding classes ; the social position of the members of this or
that class had altered along with the change in the value of money,
and the relative rank in the state of those who composed class one,
and who, as we have seen, formed a political force of overwhelming
influence, had fallen in proportion; the timocratic constitution
remained the same, while money had come to be worth less ; the
result being a complete change in the political centre of gravity.
The natural remedy seemed to be to give up, at any rate partially,
the timocratic system, to diminish the number of the centuries,
whereby the influence of the equestrian order would be increased,
and to bring them into a subordinate relation with the tribes, in
whose assembly the political preponderance lay rather with the
landed proprietors. These at least appear to be the general lines of
the reforming policy. Though the exact changes are more or less
matter of conjecture, the best theory of them seems to be that,
while the old equestrian centuries, eighteen in number, were left
untouched, those of the five Servian classes were distributed among
the tribes and at the same time reduced in number, there being
iifty-four centuries in the rusticae, eight in the urbanae tribus ; so
that the whole number of centuries would now be eighty. The
classes still voted in their old order, but speaking generally, were, so
far as related to the comitia, no longer determined by a property
qualification. The right of a citizen to vote in the comitia centuriata
depended on his being enrolled in a tribe, and to what tribe he
belonged was settled by the censors. By the year b. c. 241, the
number of tribes had by successive additions been raised to thirty-
five.

Of the two comitia which we have just been considering, the
comitia tributa, as might have been inferred from its history, con-
cerned itself mainly with ordinary domestic legislation, the great
majority of enactments which relate to private law being plebiscita ;
the leading business of the comitia centuriata was the election of
magistrates and deliberation on high political matters. After the
latter assembly had acquired its full powers, the oldest gathering of
all, the comitia curiata, dropped back into a position of quite secon-
dary importance, and its right of independent legislation was less and
less frequently exercised. The functions which it continued to dis-
charge were the approval of such resolutions of the centuries as by
inveterate custom required a religious sanction, and of other legal
dispositions which were deemed incomplete unless confirmed in this

26 INTRODUCTION.

manner. The action of the curiae is in fact implicated with that of
the pontifices, to whom was first submitted any business for which it
was desired to obtain the legislative sanction of this comitia ; for
instance, the form of adoption known as adrogation, and the lex
curiata de imperio, by which the higher magistrates, with the ex-
ception of the censors, were invested with their authority, both have a
religious significance. It is not known how long the patricians con-
tinued to attend the meetings in person ; far before Cicero's time
they were merely represented by thirty lictors.

The senate apparently did not exercise any purely legislative
authority, at any rate in respect of private law, till the last century
B.C. Besides its important function of discussing all matters before
they were submitted to the assembly of the centuries, which indeed
could not be so submitted at all without a senatorial resolution * ut
de ea re ad populum ferretur,' it exercised a considerable influence in
this period over the elections. Originally it nominated the candi-
dates whose names the consul was to lay before the comitia ; when
the plebeians became eligible to all the higher magistracies, this right
fell into desuetude, and free canvassing became the rule. But the
senate was still able to make its weight felt through the magistrate
who conducted the elections ; and by the necessity of its * auctoritas '
it controlled the comitia curiata, whose approval of the choice made
by the centuries was given, as has just been observed, by the lex
curiata de imperio. Even of this influence the senate was indirectly
deprived by a lex Maenia, by which it was enacted that the sena-
torial auctoritas to the comitia curiata should be given before instead
of after the assembly of the centuries in which the magistrates were
elected.

The period between the reform of the comitia centuriata and the
fall of the Republic produced few constitutional changes which left
their mark on private law or on the form of direct legislation. The
gradual extension of the Roman dominion over Italy, and then even
beyond its confines into Gaul and Spain, Greece, Asia, and Africa,
resulted in a constant increase in the value of the Roman civitas, and
in a perpetual struggle for the acquisition of it and the privileges
which it conveyed on the part of the Italian allies of the city. Their
rebellion ninety years before Christ, and the legislation (leges lulia
and Plautia Papiria) by which they became full citizens of Rome,
are too well known to need repetition ; but the political weight which
numerically they deserved was denied them by their not being fairly
distributed among the thirty-five existing tribes, but probably among

COLONIES— lUS LATH. 2*J

eight of them only. The establishment, however, by Rome of colonies
at various points in her dominions had led to a distinction of civil
rights which subsequently became of some prominence, and which
therefore requires a brief notice. The earliest colonies of this kind
consisted of Roman citizens, who retained their full rights of civitas
even in their new home. Contrasted with them are what are called
* coloniae Latinae,' by which we should understand Roman colonies
whose members enjoyed only the ius Latii or Latinitas* These
coloniae Latinae were of two kinds, those which joriginated, like the
old Roman colonies, in the actual ' deductio ' or leading of a number
of citizens to a new residence amid a conquered population, which
was thereby to be awed into submission, and those which existed as
townships before, but received the character of Latin colonies, without
change in their inhabitants, by statutory enactment. The ius Latii
comprised certain of the rights enjoyed by a full Roman citizen, and
some of them which were not possessed by the municipia and pr^e-
fecturae in various parts of Italy upon which Rome had conferred a
limited civitas. The inhabitants of a municipium or praefectura had,
before the leges lulia and Plautia Papiria, no political rights (suffra-
gium and honores), nor in all probability had they the connubium ;
but they had the commercium, and consequently could hold property
and make contracts and wills exactly like full Roman citizens. The
chief advantage of Latinitas over the limited civitas of a municeps was
that if a citizen of a Latin colony served therein the office of a superior
magistrate he thereby acquired the full citizenship of Rome (Gaius i.
96) ; other modes were subsequently introduced in which * Latins *
could become perfect Quirites, and this capacity of rising to the
Roman citizenship is the distinctive feature of the ius Latii as a legal
status. After that, by the leges lulia and Plautia Papiria, the Italian
allies had been incorporated with the Roman people, the limited
rights denoted by Latinitas were retained as a kind of reward which
could be bestowed on cities or districts outside Italy which had de-
served well of Rome, but on which she hesitated to confer the civitas ;
it was thus quite clear what was meant by a * Latin' ; it was no longer '
an ethnical or geographical, but a legal term, and by Latinitas or ius
Latii was understood a limited citizenship, which in certain ways
might be converted into full citizenship of Rome. The lex lunia
Norbana (a.d. 19) enacted that slaves who had received their liberty
in some other way than by one of the three civil modes of manu-
mission (vindicta, census, testamentum), and who had hitherto re-
mained legally slaves, though protected in the enjoyment of liberty

a8 INTRODUCTION.

by the. praetor, should possess this ius Latii, whence they were called
Latini luniani ; but the lex expressly prohibited them from making
a will (Ulp. Reg. 20. 14 ; Graius i. 22 sqq.)\

The character of the substantive law in the period intervening be-
tween the final constitution of the state and the fall of the Republic
is a subject important because it involves a discussion of the origin
and nature of the praetor's indirect power of legislation, and of the
kindred distinction between ius civile and ius gentium. Ius civile
is one of the two contrasted terms in two celebrated oppositions of
Roman law, between which there is an intimate relation. It is op-
posed, firstly, to ius gentium or naturale in general, and in this con-
nection it is said (Dig. 41. i. i. pr.) to be Mus proprium civitatis
nostrae;' so too private law is described (Inst. i. i. 4) as tripertitum,
'coUectum est enim ex naturalibus praeceptis, aut gentium, aut
civilibus.' Secondly, it is opposed to the praetorian law which was
based on and drawn from the ius gentium : * ius civile est^ quod ex
legibus, plebiscitis, senatus consultis, decretis Prirrcipum, auctoritate
prudentium venit : ius praetorium est, quod Praetores introduxerunt
adiuvandi, vel supplendi, vel corrigendi iuris civilis gratia' (Dig. i.
I. 7)". The proper meaning of ius civile is thus the peculiar in-
digenous law of Rome, as contrasted either with the whole ius gen-
tium, or with such part of the latter as was taken up by the praetor
into his edict. Its sources are enumerated in a passage already cited,

^ Thus in the time of the classical jurists there were two kinds of Latins : (i) the
Latinitas of the Latini coloniarii, which was still to be found in some cities on
which the ius Latii had been conferred, and which contained the commercium
without any limitation ; (a) Latinitas acquired by manumission, in consequence of
the lex lunia Norbana, of which there were four varieties : (a) slaves informally
manumitted, (^) slaves manumitted under the age of thirty years without observ-
ance of the provisions of the lex Aelia Sentia (Gains i. 18- a i), (r) slaves manu-
mitted by a ' bonitary ' owner, or by a true owner, while they were the subjects of
a usufruct or pledge, ((^ the descendants of libertini whose Latinitas had been due
immediately to manumission.

' Certain deviations from this most common use of the first of the contrasted
expressions may be noticed, (i) In some passages ius civile signifies the older
civil law, whatever its specific source, as contrasted with later enactments which
either {a) partook of the nature of ius gentium (thus in Gains ii. 197, 8, it is
opposed to the SC. Neronianum), or {p) were based on political rather than on
purely legal considerations (thus in Gains ii. 306, and Ulp. Reg. 34. i a. 13 it is
opposed to the lex Papia Poppaea). (a) It is sometimes opposed to the criminal
law (e. g. Cicero in Verrem, L 4a, pro Caecina a). (3) In Dig. x. a. a. 5 and la
it is used to denote the law made by the Ronum jurists, ' quod sine scripto in sola
prudentium interpretatione consistit.' (4) It sometimes expresses the ius Quir
tium as summed up in the Twelve Tables

lUS CIVILE AND GENTIUM. 2g

as Meges, plebiscita, senatus consuita, decreta principum, auctoritas
pnidentium/ Only the first two of these are of practical importance
until the establishment of the empire, but all are explained below or
in the Commentary on Book I. Title 2. Cicero (Top. 5) adds to
these sources of the civil law three others, viz. res iudicatae, mos
(cf. Inst. i. 2. 9), and aequitas. Usage, as a source of positive law,
will be treated in the passage of the Institutes referred to^ The
authority of precedents, expressly recognised by a rescript of Severus,
was established, as we may gather from Cicero, at a far earlier period.
* Nam imperator noster Severus rescripsit, consuetudinem aut rerum
perpetuo similiter iudicatarum auctoritatem vim legis obtinere de-
bere' (Callistratus in Dig. i. 3. 38). By res iudicatae in Roman law
are to be understood those rules of customary law which gained
acceptance by the uniformity of their judicial application to individual
cases, and which, according to Austin, are the only true customary
law whatsoever; among them the most important were the prae-
iudicia of the centumviral court. Their importance, however, as a
source of law is so trifling that neither Gaius nor Justinian mentions
them'; and this is one of the most interesting points of difference
between the English and the Roman system, which Sir Henry Maine
eiq>lains by the difference in their early history : * The theoretical '
descent of Roman jurisprudence from a code, the theoretical ascrip-
tion of English law to immemorial unwritten tradition, were the chief
reasons why the development of their system differed from the de-
velopment of ours.' By * aequitas ' Cicero seems to have meant the
internal, living, intellectual principle which is an element in all law,
and consequently not a distinct source from which a particular kind
of positive law is generated ; his use of the term is popular rather
than scientific. Not far different from this is the sense which it bears
in certain passages of the Digest (e.g. 47. 4. i. i ; 16. 3. 31. i)
as equivalent to * ratio,' the correspondence between a legal rule or
institution and the spirit of civil or natiual . law. In other passages
aequitas denotes (a) the agreement between rules of positive law and
the natural sense of right (e.g. naturalis aequitas. Dig. 2. 14. i pr. ;
37. 5. I pr.), {d) the decision of a legal question with special
reference to the circumstances of the case (Dig. 44. 4 pr.), or (c)
equity in the modem sense, i. e. mitigation of strict law in accordance
with a higher sense of justice (e.g. Dig. i. 3. 25 ; 4. i. 7 pr. ; 15. i.

32 pr)'

* Cf. Holland, Jnrispnidence, pp. 44-49.

' See Clark's Practical Joriepnidence, pp. ai6>2i8.

30 INTRODUCTION.

The ius praetoriutn, which, as we have already seen, was contrasted
by the Roman lawyers with the ius civile, though equally with it a
part of the positive law of Rome, originated in the ius edicendi
possessed by the higher magistrates. The distinction between
magistratus maiores and minores was connected with the right to
take the auspices ; auspicia maxima might be taken only by consuls
and praetors, on whom Mustum imperium auspiciumque domi et
militiae* were conferred by a lex curiata. The imperium carried
with it also the ius decemendi ; a magistrate invested with imperium
had the right of issuing a decretum, of summoning a citizen (vocatio)
to appear before him by his lictors, of enforcing obedience to his
orders by the strong arm of the law. Some of the magistratus
minores, e. g. the tribuni plebis, had the ius prensionis, the right of
arresting persons present before them and keeping them in detention ;
others had neither vocatio nor prensio. The praetor, however, who,
as has been remarked, was the supreme judicial magistrate, and who
by means of his ius edicendi was enabled to gradually develop a
system of law in which the ius civile was eventually swallowed up,
had little opportunity of modifying existing law, still less of introduc-
ing new rules, in the earliest period of his activity. This incapacity
arose from the system of procedure (legis actiones) sanctioned by
the Twelve Tables and somewhat expanded by later .legislation ; the
forms of actions were rigidly prescribed by statute, and the magistrate
had no power to directly alter or extend them ; from the forms of
actions only could a citizen deduce the rights which were guaranteed
^ him by the civil law. The only mode in which the praetor could
enforce a legal principle not contained in that law was by an
exercise of his imperium ; he could compel a party to enter into a
wager (sponsio) with his adversary, and the fact upon which the
wager turned could then be decided in a legis actio. This, for
instance, was the origin of the possessory interdicts, and thus of the
whole law of possession as distinct from ownership. But the praetor^s
real power to introduce new legal principles dates from the lex
Aebutia* which (Gaius iv. 30) practically superseded the legis

^ The date of the lex Aebntia is unknown. The latest collection of the legis
i actiones was made by Sextus Aelias Paetns, abont the middle of the sixth century
of the city, which seems to show that after that they did not remain long in use :
and the statnte which abolished them may have been due to either T. Aebntins
Cams, praetor in Sardinia B. c. 178, or M. Aebntius, praetor ten years later in
Sicily. The lex Cornelia (nientioned below) wnxrants the supposition that in B. c. 67
the Praetor*s Edict had grown to considerable dimensions ; cf^ Cicero, de Invent.

THE EDICT AND lUS HONORARIUM. 31

actiones ii> the majority of cases by a new form of procedure, by
which the praetor was enabled to grant actions (actiones honorariae)
not based on the civil law. He did this at first mainly by the
employment of fictions ; in the formula in which he indicated to the
iudex the issue to be tried he referred to some rule of law already
established, by analogy with which the present case was to be
decided (Gains iv. 32-38). Subsequently, becoming bolder, he
habitually granted actions on grounds of which there was not even a
shadowy recognition in the civil law, and wh^ formula consequently
contained no reference to rules or principles which- the law had
established.

As has been already observed, the form in which praetorian
changes were made in the law was the edict. The higher magistrates
of Rome had always possessed the ius edicendi, the right of issuing
to the people public and imperative notices on matters which fell
within their jurisdiction or formed part of their official business.
The censors issued edicts relating to a coming census ; the consuls
in this way summoned the senate and the comitia, and Plautus
speaks of edictiones aediliciae regulating the public markets. The
praetor, as invested vdth the supreme civil jurisdiction, would
naturally find the most frequent occasion for pubHshing such edicts,
and it became usual for him, at the commencement of his year of
office, to proclaim in this manner the principles which, apart from
the established rules of the ius civile, he intended to observe in the
administration of justice. Such proclamation was no small security
for the impartial treatment of all suitors, and saved the citizen from
the hardships of ex post facto legislation ; it thus became a con-
stitutional obligation of every praetor, on taking office, to state the
general rules by which, as chief judicial magistrate, he should guide
himself during the year. This edict, which he issued at the com-
mencement of his administration, was called edictum perpetuum,
because the practice was constant and unbroken, and was contrasted
with edicta repentina, isolated orders made by the praetor during
and not at the commencement of his year of office, and generally,
though not always, relating to some specific case. The distinction
between edictum perpetuum and edictum repentinum is thus not
identical with Austin's distinction between law and particular

ii 33 : in ea autem inia sunt qnaedmn ipsa iam certa propter vetostatem. Quo in
geDcre et alia sunt multa, et eorom mnlto maxima pars, quae praetores edicere
coDSoenmt

32 INTRODUCTION.

command, for edicta repentina not uncommonly enounced a rule or
principle of law ; for instance, the edict which the praetor Atilius
(b.c. 213) directed against the encroachments of strange religions,
though a 'law,' was yet an edictum repentinum. It also became
usual for each successive praetor to adopt, in substance, the edict of
his predecessor, with such additions, abrogations, and changes as he
deemed expedient. Such part of his edict as a praetor derived from
that of his predecessor in office was called edictum tralaticium. It
was owing to this fact that, though the edict of each individual
praetor had such an ephemeral validity, the praetorian law was at
once so stable and yet so elastic. By the constant accretion of new
rules which legal development and increasing commercial activity
required, the edict assumed the form of a permanent body of law,
which had the advantage of the ius civile in the ease with which it
could be repealed, altered, or extended, and which, therefore, apart
from other considerations, recommended itself as a mode of legislation
in many ways preferable to that of the comitia. It must indeed be
remembered that, technically, the praetor had no actual legislative
power. But no judge could hear an action save by his authority :
he could grant an action where none lay before : by the introduction
of exceptiones he admitted defences previously unrecognised, and
by his system of possessory interdicts he created proprietary interests
entirely strange to the civil law. It would be difficult to find a
better illustration of the extent to which one having the control of
the courts, and of the forms of civil procedure, can react on the
substantive law.

The danger of entrusting to the caprice of a single individual so
large a power of altering the law will strike every reader ; but it had
two very efficient safeguards. One of these was a strong public and
professional opinion : the other was the short duration of the praetor's
office. If one praetor ventured on innovations which were not
approved by the people or the lawyer class, his successor could easily
remove his obnoxious additions from the edict ; for a year they would
be binding, but beyond that they had not necessarily any validity.
In point of fact, it would seem that each praetor framed his edict
after careful consultation with his friends learned in the law, and that
changes were but rarely introduced for which public opinion was not
ready ; the fact, already noticed, that each praetor always accepted a
very large portion of the edict of his predecessor, a portion, indeed,
which every year grew comparatively larger, as every year made the
edict more complete, proves that the Roman praetors, as a class,

THE PRAETOR PEREGRINUS. 35

were the best of conservatives. Cicero accuses Verres of having'
issued *edicta nova in re vetere/ and altered rules for which the
constant acceptance of his predecessors had won the confidence and
aifection of the people; but we may believe that Verres had few
imitators, and that, as a general rule, both parts of the edictum per*
petuum— Ithe part which was old and the part which was new— were
alike viewed with approval by the mass of the people. Though^
however, few were guilty of Verres' breach of faith, who, according
to Cicero (in Verr. i. 46), in his judicial administration sometimes
followed a course the very opposite of that which in his edict he had
deliberately stated he intended to take, it seems that in the last
century of the Republic it became very usual for the praetor to vary
the rules stated in his edictum perpetuum by subsidiary edicts issued
during his year of office. This violation of constitutional usage
menaced the stability of the law, and accordingly was made illegal
by a lex Cornelia (b.c. 67), 'aliam deinde legem Cornelius, etsi nemo
repugnare ausus est, multis tamen invitis, tulit, ut praetores ex edictis
suis perpetuis ius dicerent Quae res cunctam gratiam ambitiosis
praetoribus, qui varie ius dicere solebant, sustulit ' (Asconius ad Cic.
orat pro Comelio, cf. Dion Cassius xxxvi. 23).

The reference to Verres seems to make this a convenient place ta
describe how the number of praetors was increased, and to point out
the bearing of this on the development of Roman law. As will be
shortly seen, the large number of foreigners who established them*
selves at Rome for commercial purposes led (b.c. 247) to the ap-»
pointment of a second praetor, called the praetor peregrinus, who
administered justice at Rome as between foreigners or foreigners and
citizens. This praetor also issued an edictum perpetuum consisting,
as will be shown, of rules derived from what was known as the ius
gentium, a general law applicable to the Romans and to all people,
which became binding for Romans inter se by being imported steadily,
though gradually, from the edict of the praetor peregrinus into that of
the praetor urbanus. The former edict may thus be regarded as an
almost inexhaustible reservoir whence the praetor urbanus drew those
streams of ius naturale by which the civil law of Rome was expanded
and liberahsed. When the territories of the state were extended
beyond the limits of Italy new praetors were made. Thus, two were
created, B.C. 227, for the administration of Sicily and Sardinia, and two
more were added when the Spanish provinces were formed, B.C. 197.
Sulla increased the number from six to eight, which Julius Caesar raised
successively to ten, twelve, fourteen, and sixteen. Many of these,

D

34 INTRODUCTION.

and also the consuls after their year of office, were entrusted with the
government of a province ; usually for a year, though the . time was
often prolonged. Such governors, whether proconsuls or propraetors,
were invested with imperium and jurisdiction within the limits of
their respective provinces, and presided there as completely over the
administration of civil justice as did the praetor urbanus at Rome.
Accordingly, provincial governors naturally adopted the practice of
issuing, at the commencement of their term of office, an edictum
stating the rules and principles which they should observe in the
exercise of their jurisdiction. Hence arose a number of edicta pro-
vincialia, which we should have supposed consisted partly of rules
of the ius gentium, partly of the indigenous law of the provincial
population; though, on the analogy of the edict of the praetor
urbanus, the latter would have been excluded. Mr. Long^ says,
however, that they were founded on the edictum urbanum, though
they likewise comprehended rules applicable only to the admini-
stration of justice in the provinces. They are often mentioned by
Cicero, who says (e. g. in his letters to Atticfls, vi. i) that he pro-
mulgated in his province two edicta, one provindale, which, among
other matters, contained everything that related to the publicani, and
another, to which he gives no name, relating to matters of which he
says ' ex edicto et postulari et fieri solent' As to all the rest he made
no edict, but declared that he would frame all his decreta on the
edicta urbana. The provincial edicts may thus perhaps be regarded
as in some way serving the purposes which, for the generalisations of
modem social science, are obtained by collections of statistics in
various parts of the world. The edict of the praetor peregrinus was
a collection of legal rules which were found to be observed in
common by all the peoples with whom Rome was acquainted ; and
the formulation of such rules would be facilitated, and their number
largely increased, by a comparison of the various provincial edicts.
The institution of the provinces, and, with them, of the edictum
provinciale, must have given a great impulse to the development of
the edict of the praetor peregrinus; through the medium of the
latter they were brought into relation with the edictum urbanum.
We do not know whether the work of Ofilius, referred to by
Pomponius in Dig. i. 2. 2, was an attempt to collect and arrange
the various edicta; but we shall see that when the edict was

* Smith's Dictionary of Greek and Roman Antiquities, article * Edictum;' from
which much of this information respecting the provincial edict has been obtained.

METHOD OF THE PRAETORIAN CHANGES. 35

systematised by Salvius Julianus, in the reign of Hadrian, he pro-
bably incorporated in it some portion of the provincial legislation
(see p. 46 inf.).

The activity of the praetor urbanus in this mode of indirect legisla-
tion was due, to a very large extent, to the lex Aebutia, which had cast
upon him the task of devising and elaborating a new codeof procedure,
and thereby enormously increased his power of altering and extending
the substantive law. But it was also due in no small degree to the
exdusiveness of the Roman legal system, and to the consequent ne-
cessity of discovering some jules, other than the rules of the ius civile,
by which the commercial relations between Romans and peregrini
should be governed. In some cases these were settled by treaty S by
which it was agreed that legal disputes between members of the re-
spective states should be decided by a special tribunal, the judges of
which were called recupeiatores, though they seem always to have
been citizens of the state in which the court lay*. So far the arrange-
ment was satisfactory, and in many respects more complete than might
have been expected in so rude an age ; the difficulty was as to the law
whidi the recuperatores were to apply. This could not, ex vi termini,
be the ius civile ; and we may suppose that the trading peregrini partly
adapted themselves to Roman l^al habits, partly introduced a con-
ventional code based on their own mercantile usages, and that the
recuperatores decided each case as it came before them on evidence
of the terms upon which the contract was concluded, and with refer-
ence to the generally accepted commercial custom. The trade of
Rome, however, expanded so much with her conquests, and the deal-
ings between citizens and allies of Rome on the one hand, and pere-
grini on the other, increased so largely in number and importance,
that, if only to relieve the praetor urbanus of the duty of appointing
recuperatores upon so many occasions, it was found necessary to
establish a praetor peregrinus in the mode already described : * Post

^ The oldest example of such a treaty is that concluded between Rome and
Ltttinm, B. c. 493, which provided that actions on contract between Romans and
Latins should be decided, after ten da3r5* interval, in the locus contractus, by
zecuperatores appointed by the local magistrate. The term was connected with
redperatio, the treaty : reciperatio est, ut ait Gallns Aelius, cum inter populum
et reges nationesque et civitates peregrinas lex convenit. quomodo per recipera-
toxes leddantur res reciperenturqne, resqne privatas inter se persequantur * (Festus).

' Many writers (e. g. Huschke and RudorfT) maintain that the recuperatores
were a mixed court composed of citizens of both states. Keller (Civil Prozess,
p. 31) is unable to come to any conclusion, but Bethmann HoUweg (Civil Prozess,
( 35) denies that there is any evidence in favour of their view.

D 2

36 INTRODUCTION.

aliquot deinde annos, non sufficiente eo Praetore, quod multa turba
etiam peregrinonim in civitatem venirent, creatus est et alius Praetor,
qui peregrinus appellatus est ab eo, quod plenimque inter peregrinos
ius dicebat' (Pomponius in Dig. i. 2. 2. 28). In addition to cases
which had to be tried by recuperatores, the new praetor thus dealt
with suits to which both parties were peregrini, and for the hearing
and decision of which apparently no machinery had existed at Rome.
The procedure which he applied was probably of the same nature as
that which, somewhat later, the praetor urbanus adopted after the
enactment of the lex Aebutia. Gaius tells us that the action rested
on his imperium as distinct from statutory form (iv. 103 sqq.), and we
may suppose that he first heard the allegations of the parties, and
then fixed the issue to be tried in written instructions, which were
delivered to the recuperatores or to the single index whom he ap-
pointed, and to whom the decision of the case was committed.

The law which, under the superintendence of the praetor
peregrinus, these judges administered, was of course, in origin, the
same which the recuperatores had always applied in the decision of
actions which were brought before them. But it now assumed a
more consistent and permanent character by being embodied in the
new praetor's edict. Its steady growth was thus assured, no less
than through the activity of leading citizens themselves, who became
connected with foreign towns or districts in the Roman dominions
by the tie of patron and client, and who, in this relation, took a
lively interest in the development of this new branch of law. The
mode in which the praetor peregrinus gradually elaborated a tolerably
complete body of rules by which actions between citizens and
foreigners, or foreigners only, should be decided, has been variously
represented. Sir Henry Maine (Ancient Law, p. 48 sq.) seems to
adopt the view of those who hold that he compared the usages of
the various Italian nations with whom Rome was acquainted, and by
this conscious and deliberate process collected a system of principles
which the majority of peregrini engaged in commerce on Roman
territory with citizens or with one another, would recognise as
binding : * naturalia iura quae apud omnes gentes peraeque servantur '
(Inst. i. 2. 11). But this seems an instance of the common error of
ascribing scientific habits to a prescientific period, and the eclectic
process implies a mental constitution which was not common among
the Romans. It is true that this view is not unsupported by some
dicta of the Roman jurists themselves; but these, we must re-
member, wrote at a time when the treatment of law had passe4

ORIGIN OF THE JUS GENTIUM. 37

from the empirical to the scientific stage, and their evidence is
therefore the less trustworthy. It would seem more probable that
this body of law originated in a practical necessity *, which, though
slight at first, became gradually more and more pressing, and that it
grew with that necessity, its development being accidental and due to
circumstances, though effected under the fostering care of the praetor
per^rinus; rather than that it sprang into existence, so to speak,
uno ictu, as the result of a conscious comparison of Italian usages.
This body of law, however, whatever may have been its precise
origin, was what the Romans knew as the ius gentium ; a collection
of rules, embodied in the edict of the praetor peregrinus, for the
regulation of commercial transactions of peregrini at Rome, either
inter se, or with the citizens and allies of the Roman state. In its
original signification it is the law which Rome applied in favour of
the ' gentes,' the non-Roman peoples, whose members sought justice
Sit the hands of Roman magistrates ; a law not binding any people
in particular, but supposed to bind all peoples in general, in their
private dealings with one another. As such, it had no validity for
Roman citizens inter se \ their rights and obligations were determined^
in relation to one another, by the ius civile : ' Nam quod quisque
populus ipse sibi ius constituit, id ipsius civitatis proprium est, voca*-
turque ius civile, quasi ius proprium ipsius civitatis ' (Gaius i. i, Inst*
i* 2. i) : and we have already seen that the ius civile was a law based
on the religion and customs of the race, which we may perhaps believe
was at first considered far higher and more precious than the ius gen-
tium or any other law whatsoever, and which accordingly the Romans
persistently refused to extend to anyone who was not himself a citizen.
There can be little doubt that in the course of time a very great
change came over the feelings with which the Romans, and especially
the lawyer class, regarded the law of all nations in contrast with their
own indigenous law* Sir Henry Maine (Ancient Law, p. 52 sq.) has
fixed the date of this change as contemporaneous with the conquest
of Greece, and the importation of the Stoic philosophy to Rome.
He has described the revolution which ensued upon the wide
acceptance of that philosophy in the West, and more particularly
from the ardour with which the lawyer class threw themselves into
its study. He has shown how its leading principle was life accord-
ing to the law which nature had once, in a far-off age, laid down for
the governance of human relations, when states, and therefore civil

^ So too Mr. Long, Cicero's Orations, toL 1. p. 168.

38 INTRODUCTION.

law, had not begun to exist, and which had become lost and foigotten
in the artificial society of nations which prided themselves on their
civilisation ; how the Roman lawyers leapt to the conclusion that the
ius gentium, with its universal validity, was no less than this lost
code of nature, and how, as was only consistent, they transferred to
it all the affection and veneration which hitherto they had bestowed
on their own narrow and exclusive municipal law. Attractive as
this theory is, it is submitted that it cannot be received without
some qualification. Greece became a Roman province in the
middle of the second century before Christ : but her philosophies
were as yet regarded at Rome with dislike and suspicion, and in
B.C. i6i their teachers had been expelled from the city. Stoicism
was first raised to full influence in the higher ranks of Roman society
by means of the group which gathered round Scipio Aemilianus, who
died B. c. 129; and Quintus Scaevola, consul b. c 95, and the
founder of scientific jurisprudence, was one of its earliest eminent
disciples. We may believe that from the last-mentioned date
onward its doctrines were applied to the development of law with
consistency and success ; but it still remains to be proved that the
Romans did not begin to regard the ius gentium with feelings other
than of disdain until this period. The edict of the praetor peregrinus
had been in existence, and applied to citizens in their relations with
foreigners, for more than a century and a half, and edicta provincialia
had been issued for considerably more than a century ; and we
cannot believe, on the one hand, that the praetor urbanus could
have witnessed the continuous growth of this liberal and reasonable
system of law without having adopted portions of it in his own edict
during the second century b. c, while, on the other, it is impossible
that this could have been done without the approval of the profession
and of the nation. Stoicism then, it would seem, cannot be credited
with having been the original and entire cause of the change in the
feelings with which the Romans regarded the ius gentium \ On the

* A friendly reviewer of the first edition of this work in the * Times' of Sept. 8,
1883, criticised this page as an unintentional misrepresentation of Sir H. Maine,
but on a careful reperusal of the third chapter of ^ Ancient Law * the writer can see
no reason for changing his statement of the author's view. The following citations
may be usefuL ' This crisis (at which the Romans altered their attitude towards
the ins gentium) arrived when the Greek theory of a Law of Nature was applied to
the practical Roman administration of the law common to all nations ' (p. 5a). 'It
is notorious that this proposition — live according to nature — was the sum of the
tenets of the iamous Stoic philosophy. Now on the subjugation of Greece that
philosophy made instantaneous progress in Roman society' (p. 54). 'In the front

STOICISM AND THE lUS NATURALE. 39

other handy it is probably true that, after the time of Scaevola, the
improvements in the law, in respect not only of internal development,
but also of scientific treatment, were due in a very large degree to
the alliance between the lawyers and the Stov The identification
of the ius gentium with the law of nature was not universally ad-
mitted till the age of the classical jurists, among whom we find one
so eminent even as Ulpian attempting to distinguish them^. But
we cannot overestimate the effect which the Stoic philosophy had
upon legal method. Scaevola, the first great lawyer of the School,
was also the first Roman who wrote a systematic l^al treatise ; and
it is to the habits of thought which the profession acquired with its
tenets that we should ascribe not only the systematic classification,
the mapping out of the field of private law bequeathed to us by
Gains, but also the wealth of Roman law in legal principles, and the
admirable logic of their subordination and interconnection ".

It was in some such way as this that the Romans came to recognise
in the ius naturale or ius gentium an universal law binding on them-
selves, and to say of it, as Cicero does (de Offic. iii. 17) *quod civile
non idem continuo gentium, quod autem gentium, idem civile (i.e.
dvium) esse debet' Notwithstanding, however, the fact that the ius
gentium was constantly being absorbed into the system through the

of the disciples of the new Greek school, we might be sure, even if we did not know
it historically, that the Roman lawyers figured. . . . The alliance of the lawyers with
tlie Stoic philosophy lasted through many centuries ' (p. 55).

^ The position of ius natunde in the legal system, as compared with ius gentium,
is not precisely determined in the passages of the Corpus luris which relate to it.
Sometimes, and indeed most frequently, they are used as sjmonymous (e. g. Inst. ii.
I. II, where they are identified) ; and where this is so, the expression ius naturale
refen to its assumed origin, and to the accord of certain legal principles with the
needs and requirements of the reasonable nature of man. It is this ' naturalis
ratio ' which furnishes the raw material of the ius naturale, and from which the
latter derives its universal validity ; as reason is man's * differentia,' ius naturale must
be valid wherever man is to be found, and therefore is coextensive with ius gentium.
Sometimes, however, a narrower signification is given to ius naturale, and it is
used to indicate the aggregate of those institutions of Roman law which were
deemed to be based not so much on the intellectual as on the moral side of human
nature, or to a certain extent on an instinct shared with man by the lower animals.
This is the sense which the expression bears in Inst. i. a. pr. (on which see note),
where it is distinguished from ius gentium, and in Ulpian in Dig. i. i. i. 4 ' ius
gentium est quo gentes humanae utuntur. Quod a naturali reoedere, £icile in-
telligere licet, quia illud omnibus animalibus, illud solis hominibus inter se com-
mune sit.' But in other passages of the Institutes, as has been observed, the two
are identified.

^ See Zeller*t Stoics, Epicureans, and Sceptics, du iv.

40 INTRODUCTION.

edict of the praetor urbanus, the ius civile still retained its peculiari-
ties ; the streams of the two did not intermingle, so that the contrast
between civil and praetorian law from this time onward becomes em-
phasised. The result was very similar to that which ensued upon the
incorporation of the plebs in the Roman state, namely, a duplication
of institutions. Whether it be in the domain of the family, of property,
or of obligations, the legal institutions of Rome are henceforward
found to a large degree in duplicate, institutions of the ius gentium
existing side by side with institutions of the ius civile. The thorough-
ness of this is perhaps best attested by the prominence, in all depart-
ments of the code, of the opposition between * the natural ' and * the
civil.' Thus, the conditions of marriage depend upon either civilis or
naturalis ratio (Inst. i. lo pr.) : there is a natural as distinct from a
civil relationship, and the history of the law of intestate succession is
merely the history of the substitution of the former title for the latter
by equity, ^ represented first by the praetor, and later by the imperial
legislation ; there are both natural and civil modes of acquisition in
the two fields of ownership and obligation ; there is natural as well as
civil possession, natural as well as civil obligation.

In many cases the rules of the edict differed in form only from those
of the civil law ; in substance they were the same. But the vast ma-
jority of them are distinct in kind as well as in form ; they have none of
the peculiaritiesof the civil law — formality,exclusiveness, rigidity; they
are liberal, equitable, fitted to endure through all time ; and these are
based upon the ius gentium, or rather upon the natural sense of right,
the naturalis aequitas, in which the Romans recognised that law's
internal and generative principle. The ius gentium and the ius hono-
rarium or praetorium (for practical purposes the expressions are
nearly synonymous) thus require to be distinguished, and their relation
to one another ascertained. The distinction of ius civile and ius
honorarium is based on the difference of the organs to whose activity
they respectively owe^ their existence ; that of ius civile and ius gen-
tium on differences of nature and of extension. The two would have
corresponded exactly if the whole ius gentium had been taken up into
the urban edict, and the latter had contained no other law whatsoever ;
but as a matter of fact, though there is a very intimate relation between
them, rules could and did belong to the one without also belonging to
the other. Still, the most important portion of the rules enunciated
in the edict can be traced to the ius gentium, which indeed was the
element in it which gave it such an honourable prominence among the
sources of the positive law of Rome. Hence the common opposition,

lUS GENTIUM AND THE EDICT. 41

to which attention has been already drawn, between the ius praeto-
rhim and the ius civile. Yet not unfrequently the former is reckoned
part of the latter, or rather the edicta magistratuum are enumerated
among its sources (e.g. Cic. Top. 5), though it is far more usual to
find them contrasted (as in Dig. 28. i. 23 ' testamentum utroque
iure valebit, tarn civili quam praetorio '). The contrast was in part a
material one ; the civil law was * proprium civitatis nostrae,' whereas
the greater part of the ius praetorium was derived from the ius gen-
tium, and therefore its validity extended itself beyond the limits of the
Roman state into all nations which were under the rule of law. But
in part, as has been remarked above, it arose from the difference of
the organs through which the civil and the praetorian law respectively
came into existence. A rule of the ius praetorium had no validity
other than that which could be given it by the praetor by whom it
was issued ; it did not bind his successors or even his official col-
leagues ; its force was far less, both in duration and in universality,
than that of a lex enacted by the sovereign populus. Rights conferred
in the latter way were necessarily protected by the praetor at all times,
but they existed apart from and independently of him ; rights con-
ferred by the edict depended purely and simply on his good faith ;
thus (Dig. 7. 4. i) *usus fructus iure constitutus' is opposed to *usus
fructus tuitione praetoris constitutus ;' and it was through this formally
ephemeral character of the ius praetorium that the ius civile always
preserved its distinctness and its separate existence.

The connection which we have sketched between the ius gentium
and the edicts of the praetors, though maintained by perhaps the
majority of writers on Roman law, is entirely a matter of inference,
and there are distinguished authorities by whom it is entirely denied.
That there was a special praetor to adjudicate upon causes in which
either party was an alien is too well proved by the evidence of
Pomponius, Gains, and others, to need further demonstration, and
that he had an edict distinct from that of the praetor urbanus,
though disputed by some writers^ is clearly stated by Gaius himself
(i. 6). The existence of the second edict is convincing evidence
that the law administered in suits between aliens, or between aliens
and citizens, was fundamentally different from that administered by
the praetor urbanus : and in believing this there should be no diffi-
culty, for we know that aliens were never permitted to take part in
the forms and dispositions of the civil law', such as sponsio, legis actio,

* E. g. Clark, Practical Juiispnideiice, p. 349, > Cicero, Top. a.

4* INTRODUCTION.

testamentum, numcipatio, expensilatio, and in B.C. 247 the Roman
law relating to nearly all matters upon which litigation was likely to
arise before the praetor peregrinus was purely * civil.* Upon any
other hypothesis than that which has been adopted it is extremely
difficult, if not impossible, to understand how the notion of a ius
gentium exercised such an extraordinary influence upon the Roman
legal mind: it would seem to have been a living reality, always
present in actual manifestation before their eyes. Perhaps a solution
of the difficulty of deciding between the two conflicting theories* will
be found in the belief that the expression ' ius gentium ' somewhat
changed its meaning between the earlier and the later period of
Roman legal history. By the earlier Romans it was doubtless con-
ceived as an historical £Eict : as a body of rules (e.g. those relating to
most of the modes of acquisition subsequently known as ' natural/
and to some of the more common subjects of contract) actually
recognised not only in the law of Rome itself, but also in that of the
surrounding Italian tribes, and possibly among even more distant
peoples'. The stage in which other rules and practices attributed to
the ius gentium are applied by the praetor peregrinus in determining
suits between aliens, but without having become part and parcel of
the law of Rome, is an intermediate one ; but when the ius gentium
came to be identified with the ius naturale, it became a philosophical
ideal, a system in the clouds, with no historical basis, but — as an
ideal — infinitely valuable.

The political changes which took place in the years immediately
succeeding the death of Julius Caesar are not unfrequently misunder-

' Voigt and Karlowa may be taken as respectively their most eminent modem
exponents. The learning and research of the former make his opinion on this
matter, to which he has devoted years of stndy, particularly valuable. He is
followed, among more recent writerny by Sohm, Institutionen, 2nd edition (1886),
p. 48.

' See an article on the subject by Prof. H. Nettleship in the Journal of Philology,
xxvi. pp. 169-182. After a careful review of all the passages in which the expres-
sion occurs, in non-legal as well as in legal WTiters, he comes to the condnaion that
ius gentium meant ' the usage of the world, of all mankind, and that it was in aU
probability first employed as a quasi-technical expression by the lawyers of the
second century B. c, Cicero's maiores (de Off. iii. 69). They originally intended
to express by it such customs or usages as the Romans found, in the experience
which they would pick u,) away from Italy in war or couomerce or travel, or in their
intercourse with peregrini in Italy itself, to be universally observed. These usages
would naturally be connected in the main with war or conmieroe, and thus ius
gentium, when the term is applied to the dealings of Romans with foreigners, is
used mostly of the laws of war and of transactions involved in a state of war, or of
commeioe or transactions connected with it, such as obligationes of various kinds.*

FOUNDATION OF THE EMPIRE. 43

stood. It has been usual to speak of 'the establishment of the
empire,' and thence to infer that the form of constitution was revolu-
tionised, and an open despotism suddenly substituted for the free
Kepublic with which the Romans had now fcNr centuries been familiar.
The real iiact is that formally the constitution remained republican
under and even long after Augustus ; the only outward change has
been not inappropriately described as the addition to the old magis-
tracies of a new one, which was held for life, and whose holder was
invested with an authority far larger, because more compact, than that
of all the old magistrates together. On Augustus was conferred,
sometimes for life, sometimes for shorter periods, but always to be
renewed, the tribunicia potestas, the proconsulare imperium, the prae-
fectura morum, the supreme pontificate, and in fact all the highest
offices of state : but in each of these capacities he acted merely as a
magistrate of the Republic, whose outward forms he was studious to
observe. Hence, according to the theory of the constitution, the
supreme power continued to reside in the populus Romanus, and was
exercised, as before, in the two comitia for elective and legislative
purposes. Augustus himself voted amongst the tribes hke any other
citizen, and the theoretical sovereignty of the people remained intact
until the accession of Constantine.

The legislation of the* early empire accordingly proceeded at first in
the same manner as it had been accustomed. Leges are still enacted
in the comitia, though usually introduced by the emperor in person,
and if by some other magistrate, always with his sanction; for his
tribunida potestas enabled him to veto any project which did not
meet with his approval. Gaius, who belongs to the middle of the
second century, speaks of this form of enactment as still potentially
subsisting: Mex est, quod populus iubet atque constituit' (i. 3). But
in fact comitial legislation had received its death blow from the
extension of the franchise to the Italians some sixty years before the
battle of Actium made Augustus the sole ruler of Rome : and though
we read * of an agrarian law passed under Nerva (a,d. 96-98), it may
be doubted whether this was a lex rogata, and it is more probable
that statutes enacted by the whole populus came to an end half a
century earlier. The legislative authority of the senate endured
longer. This had originated partly in its old probouleutic functions,
pardy in its relation to the administration. In connection with the
latter, it would seem that even under the Republic its rights had

* Dig. 47. ai. I, I.

44 INTRODUCTION.

practically been admitted of regulating the government. of the
provinces, maintaining religion, suspending or repealing laws in cases
of urgent public necessity, guarding the privileges of the aerarium
and the publicani, and superintending the treatment of the Italians
and provincials ; upon all of which matters it was in the habit of
making consulta to which it required general obedience. Its legis-
lation was thus at first confined to public matters; the earliest senatus
consultum which we know is that de Bacchanalibus (b.c. i86),
discovered on bronze in Calabria in 1640. But the party of the
optimates had regarded the senate as the fundamental element of
the state, of co-ordinate authority with the populus, and had there-
fore maintained that its resolutions ought in all cases to have equal
validity with leges ; thus Cicero enumerates senatus consulta among
the sources of ius civile, and says of the senate (de Leg. iii. 3. 1 2)
* eius decreta rata suyito.' The claim was constantly resisted by the
populares, though supported by usage; nevertheless the senatorial
legislation by degrees extended itself to matters of private law,
though but little of it relating to this is found in the pre-imperial
period. That senatus consulta under the early empire gradually
superseded leges is attributed by Justinian after Pomponius (Dig. i.
2. 2) to the extension of the suffrage, and the consequent unwieldi-
ness of the comitia : * Nam cum auctus esset populus Romanus in
eum modum ut difficile esset in unum eum convocari legis sancien-
dae causa, aequum visum est senatum vice populi consuli' (Inst,
i. 2. 5). Under Augustus, and still more under his successors, it
became so usual to ascribe the force of law to senatus consulta
without sending them on to the comitia, that at length they actually
acquired the title of leges (e.g. Gaius i. 83-86) ; similarly, the name
comitia was commonly given to the sittings of the senate (Tacitus,
Ann. i. 15, Capitol. Marc. 10). The transference of legislative
authority from populus to senate is indicated by the practice of
naming senatus consulta, like leges, after their proposers ; but this
was not invariable : for instance, the SC. Macedonianum seems from
Dig. 14. 6. 1 to have received its title from an unscrupulous usurer
called Macedo, though Theophilus says that Macedo was the bor-
rower. Most of the senatus consulta relating to private law fall
between Claudius (a.d. 41) and Septimius Severus (a.d. 193-21 i);
none occur after the last-named emperor. Like leges in this period,
they always owed their introduction to the imperial will, though
usually proposed by a consul ; in effect, they were laws made by the
emperor, though under observance of republican forms.

THE SENATE AND THE EMPEROR. 45

The emperor, however, possessed the right of making laws directly,
without reference to either senate or comitia. This right had not be-
longed to Augustus and his immediate successors ; as magistrates of
the Republic they could issue edicts, which had a greater validity than
those of the old annual magistrates, because they held office for life :
but in theory their force died with them. Thus, Dion Cassius (Ivi. 28)
mentions a lex of a.d. 12, by which it was provided that resolutions .
arrived at by Augustus with the advice of his council should have the
force of a senatus consultum. The authority which Augustus pos-
sessed in virtue of his various offices was conferred on his successors
by separate l^es ; later, the emperor was invested with his powers
uno ictu, by a lex de imperio, after the analogy of the lex curiata of
the early legal period, which also gave his enactments the force of
statutes (Gaius i. 5) and released him from the control of the laws
(Dion Cassius liii. 18. 28). This lex de imperio is in Inst. i. 2. 6
and other passages of the Corpus luris called lex regia, but it was
probably never so entitled before the third century, when to avoid the
comparison between rex and imperator would have been mere affec-
tation. An important fragment of the lex de imperio of Vespasian
(a-D. 69) is extant ; it empowers the emperor to conclude alliances,
procure senatus consulta, nominate the magistrates, extend the po-
moerium, and issue enactments with the force of law. And so abso-
lute did the imperial authority become in the next 150 years, that
Ulpian could, early in the third century, speak of a complete devolution
of the power of the people to the emperor : ' Cum lege, quae de impe-
rio eius lata est, populus ei et in eum omne suum imperium et po-
testatera conferat' (Dig. i. 4. i pr.). The general term used to denote
law made either directly or indirectly by the emperor is constitutiones ;
their various kinds are described in a note to Bk. i. 2. 6. After
Septimius Severus, in whose reign, as has been observed, the last of
the senatus consulta was enacted, the whole legislative authority of
the state concentrated itself in the hands of the emperor. Up to
the time of Constantine, however, the emperors legislated with
reference to specific cases of litigation, by decreta and rescripta,
rather than by direct and merely prospective enactment ; and such
changes as were thus made in the law were far less comprehensive
than those made by leges and senatus consulta. The period in which
direct imperial legislation was most active had yet to come,

The distinction between the ius civile and the ius praetorium in no
way ceased with the introduction of the empire, but rather became
emphasised. Even had the office of praetor been suppressed, and the

46 INTRODUCTION.

edictum perpetuum ceased to appear, the develofMnent of the praeto-
rian law, in its peculiar character as a liberal and equitable system,
could hardly under the circumstances have been arrested : in particu-
lar we know that a fresh impulse was given to the growth of the
praetorian law of succession by the lex Papia Poppaea in the time of
Augustus. But, as a matter of fact, the two praetors at Rome, and
the governors in the provinces, continued to issue their annual edicts
under not only Augustus but also his successors, and the ius gentium
was still, as before, being constantly worked into the l^al system, and
alterations and additions being made in that large part of the urban
edict which had now been handed down from praetor to praetor
, for generations. These additions and alterations, however, were
largely occasioned by contemporaneous legislation (e.g. the leges
Falcidia, lulia et Papia, and various senatus consulta) ; for we may
venture to suppose that, when the comitia passed no statutes which
were not originated by the emperor, a magistrate would have hesi-
tated to repeal or alter, or extend the law, with the independence
which had been usual under the free Republic

From the time of Hadrian (a.d. i 17-138) the formal separation
which has been noticed between the respective edicts of successive
praetors ceased to exist. That emperor divided the whole of Italy
into Rome, with its immediately surrounding territory, and four other
districts ; Rome and its suburbs remained under the authority of the
old magistrates, and among them of the praetor, while the other
districts were placed under the administration of a new class of
officials, called at first consulares, and after M. Aurelius (a.d. i 61-180)
iuridici. With this change was in all probability connected a still more
sweeping reform effected by Hadrian. The perpetual edict had by
this time seemingly become unexpansive and stereotyped, and it was
deemed desirable to finally determine its contents, and its relation to
the l^islative authority of the emperor. Accordingly in 131 a.d.
Hadrian instructed the famous lawyer Salvius Julianus to revise and
systematise in a compact form the edicts of the praetores urbanus
and peregrinus, incorporating also certain portions of the aedilician
edict relating to market law, or providing for the preservation of the
public order and safety in streets and open spaces: the resulting
work was ratified by an imperial senatus consult, and there seems to
be some ground for supposing that a general provincial edict was
issued at the same time, to be observed uniformly by the governors
of the provinces throughout the empire \ That the edict of Julianus

^ This is denied by Mommseiu But what else could have been the subject of

THE EDICT OF JULIANUS—THE PRUDENTES. 47

-^-knoWn henceforth as edictum i^r^tMMxn par excellence — ^was still
regarded as 'ius honorarium' by the lawyers of later generations
lends some colour to the belief that it continued to be formally pro-
mulgated each year, and derived its validity from the magistrate's
imperium : but whether this was so or not, the magistrate had no
power to change any of its provisions, and Hadrian himself evidently
directed that any defect which might subsequently be discovered in
the law should be supplied by imperial legislation : ' et hoc non
primum a nobis dictum est, sed ab antiqua descendit prosapia, quum
et ipse lulianus, legum et edicti perpetui subtilissimus conditor, in
suis libris hoc retulit, ut, si quid imperfectum inveniatur, ab imperiali
sanctione hoc repleatur ; et non ipse solus, sed et divus Hadrianus,
in compositione edicti et senatus consulto, quod eam secutum est,
hoc apertissime definivit, ut si quid in edicto positum non inveniatur,
hoc ad eius regulas eiusque coniecturas et imitationes possit nova
instniere auctoritas ' (Justinian in Const. ' tanta ' de Confirm. Digest.

§ 18) ■.

The mention of the responsa prudentium among the sources of the
ius civile makes it necessary to speak of the work done by the class
of professional lawyers in the development of Roman law ; and as
it iNras to these jurists that that law owed what scientific form it
possessed, besides many of its other special merits, it will not be
amiss to discuss this subject with some fullness. The names of the
early prudentes who lived under the free Republic are collected by
Pomponius in Dig. i. 2. 2. 35-39 ; the first is that of Papirius, whose
compilation of the leges regiae has been already noticed. These
earliest lawyers are styled prudentes not because their knowledge of
the law was more scientific, less empirical, than that of other men,
but rather because they knew it more fully ; a philosophical treat-
ment of law had not yet commenced, and such distinction as there
was between their legal knowledge and that of the ordinary citizen
was quantitative rather than qualitative. The first condition of their
existence as a professional class was the cessation of the pontifices to
be 'iuris conditores,' and the liberation of private law from the

Gains' work of 3a books ad edictum provinciale ? The edict of ' his own ' province,
which Mommsen imagines to have been the topic, conld hardly have deserved so
extensive a treatment See Roby, Introdnction to Justinian's Digest, p. clxxviii.

' The most snccessfnl attempt to reconstruct the perpetual edict is that of
Leuel (1883). The order of the titles can be ascertained with some precision by
comparing together the commentaries written on it by subsequent lawyers, especi-
aUy Panlns and Ulpian. See Muirhead^ Roman Law, p. 309.

48 INTRODUCTION.

fetters of the ius sacrum ; it has been suggested that this was effected
in the main by the incorporation of the plebeian element in the state.
The direction of their legal activity is denoted by Cicero (de Orat. L
48) by the four terms respondere, cavere, agere, and scribere.
Respondere expressed the delivery of opinions (* iuris civilis scientiam
publice profiteri ') when consulted by either judges or private persons;
cavere, the advising more definitely on legal matters, such as the
proper mode of concluding some transaction, or of enforcing a right
in the courts; agere, the actual participation in the process as
patronus, or by presently superintending a l^al disposition ; scribere, *
the drafting of technical documents in proper legal phrase, the more
mechanical part of the labour being perhaps undertaken by clerks
or secretaries. But the most prominent of their functions, the
capacity in which the ordinary citizen had most frequent occasion to
consult them, was as advisers on the practice of the law. The
ordinary citizen could not be acquainted with the complicated forms
of procedure, or master the difficulties of the calendar, upon whose
distinctions of dies fasti and dies nefasti the successful issue of an
action so much depended. These mysteries were somewhat sim-
plified by Cn. Flavius, who, as aedile (circ 304 B.C.), for the first
time published a calendar, in which dies fasti and dies nefasti were
distinguished, the people being thus enabled to know the days on
which they could and those on which they could not perform public
acts ; and who also made a compilation of formulae required in the
legis actiones and in the due performance of solemn dispositions :
* postea cum Appius Claudius proposuisset et ad formam redegisset
has actiones, Cn. Flavius, scriba eius, libertini filius, subreptum
librum populo tradidit ; et adeo gratum fuit id munus populo, ut tri-
bunus plebis fieret, et senator et aedilis curulis. Hie liber, qui
actiones continet, appellatur ius civile Flavianum, sicut ille ius civile
Papirianum; nam nee Cn. Flavius de suo quidquam adiecit libro.
Augescente civitate, quia deerant quaedam genera agendi, non post
multum temporis spatium Sextus Aelius alias actiones composuit, et
librum populo dedit, qui appellatur ius Aelianum' (Pomponius in
Dig. I. 2. 2. 7). A further and very important step towards mak-
ing the technicalities of the law accessible to all, which in fact
laid the foundation of the legal profession, was taken by Tiberius
Coruncanius, the first plebeian pontifex maximus, who about b.c. 254
proclaimed his willingness to expound it to any one who made ap-
plication ^ The mode in which the early prudentes acquired their

» Dig. 1. a. J. 35.

THE LAWYERS OF THE REPUBLIC. 49

knowledge was by attending as auditores, while young, an experienced
jurisconsult in the practical work of his profession, and by a careful
study of the Twelve Tables and such other books on the subject as
were available. Among these may be mentioned those of Cn. Flavius
and S. Aelius, alluded to in the passage just cited from Pomponius,
and works by the Catos, P. Mucins, Brutus, and Manilius. Of
systematic teaching in schools or lecture-rooms there is as yet no
trace. The influence of the jurists on the law in this earliest period
is of a very definite character, and is expressed by the term * inter-
pretatio,' by which should be understood the completion or supple-
menting of the written out of the unwritten law ; not in the sense that
they were strictly tied by the letter of the statute, or by the express
words of the lawgiver, but that they were guided by its spirit, by a
conception of law as a living and growing organism, and by a
realisation of the necessity of adapting it to the growing require-
ments of an advancing civilisation. * His legibus latis coepit (ut
naturaliter evenire solet ut interpretatio desideraret prudentium
auctoritatem) necessariam esse disputationem fori. Haec disputatio
et hoc ius, quod sine scripto venit compositum a prudentibus pro-
pria parte (appellatione ?) aliqua non appellatur, ut ceterae partes
iuris suis nominibus designantur, sed communi nomine appellatur
ius civile (Dig. i. 2. 2. 5). It was then on the Twelve Tables and
succeeding statutes that this interpretatio was to bear: and its
operation may be illustrated by an example. The Twelve Tables
had given an action against the owner of a quadruped which caused
a damnum ; as cases occurred in which damage was done by two-
footed animals in the same way as the statute had contemplated, it^
was inferred that to grant an action here too was required by it&
spirit ; the action was accordingly introduced, and brought as under
the Twelve Tables, new law being thus grafted on to the old \ This
limitation of interpretatio had, however, ceased in the time of Cicero,
who says (de Leg. i. 5) that the jurists who were his contemporaries
applied themselves also to the praetorian edict, while their pre^
decessors had not gone beyond the ius civile. The sphere of their
activity was largely extended on the fall of the free Republic.
Savigny has remarked (Hist, of the Roman Law in the Middle Ages,
i p. 25) that the art of public speaking, which in the time of freedom
bad been the first among the arts of peace, had with the disappear-
ance of freedom lost all power and influence. Yet the Romans had

^ Cf. the interpretatio of the lex A(}iiilla h) In^ iv. 3. 10.

5© INTRODUCTION.

from the earliest time devoted themselves more to law than to any
other branch of public life, and it was accordingly in the study of law
that the highest and noblest intellects now engaged, and in which
they found the completest satisfaction of such aspirations as were
still tolerated by the empire ^ With them we first get the idea of a
scientific knowledge of the principles of law or jurisprudence, a
science which was entirely of their creation. Its favourable and
symmetrical growth under their hands was due in no small degree to
a peculiarity which is worthy of attention, namely, the theoretical,
scientific purpose of the work by which it was elaborated, or rather
the complete adjustment which they effected between theory and
practice, between principle and detail. The Roman jurists to whom
the science of law is most indebted held themselves aloof from
the mechanical business which had formed a considerable portion of
the vocation of the older prudentes, and left it to their pupils or to
men of less repute than themselves. Their theory was thus always
full of life, their practice ^ways in harmony with and conducted with
reference to their principles ; with them ' theory and practice stood
to one another in the only possiUe true relation, that each paid due
regard to the other/ Thus the practitioner could not reproach the
scientific jurist with being a mere theorist or dreamer, or the scientific
jurist the practitioner with having nothing but * a beggarly account of
scraps and fragments ^' There are points of resemblance which
make a comparison between the development of law at Rome by the
prudentes and its growth in England through a vast series of judicial
decisions, both interesting and instructive ; but there is a difference
of very great importance between them, which is this ; — at Rome the
jurists were not usually judges, nor were the judges usually jurists ;
and hence it was not with strict reference only to an actual concrete
case that a jurist could make new law, but he could do this upon a
hypothetical set of circumstances submitted to him by a pupil or any
other person ; and, as is remarked by Sir Henry Maine ^ ' where the
data can be multiplied at pleasure, the facilities for evolving a general
rule are immensely increased/ The development of English case
law, on the other hand, has been merely the outcome of practical
necessity, and from the scientific point of view is open to many of
the objections which have been stated as against it by Austin *. The

' Cf. Maine, Ancient Law, p. 362.

• Austin, Jurispnidenoe, vol. i. p. 483.
' Ancient Law, p. 39.

* Jurisprudence, Lectures, 38, 39.

THE PROCULIAN AND SABINIAN SECTS. 51

Roman jurisprudence owed its perfection precisely to the feet that in
it theory and practice were never in a constant state of antagonism ;
whereas in England the practical disr^ard of the one in favour of
the other, or injudicious efforts at reconciliation, have often had the
effect of at once marring the theory, and perverting the practice.
. As has been observed, the first Roman jurist who can be credited
with a genuine scientific treatment and exposition of the law was
Q. Mucius Scaevola, who * ius civile primus constituit generatim in
libros decern et octo redigendo' (Pomponius in Dig. i. 2. 2. 41).
From another work of his, Liber singularis SfMv (definitions), there are
four excerpts in the Digest. C. Aquilius Gallus, Cicero's colleague in
the praetorship, to whom are due the actio and exceptio doli, postumi
Aquiliani, and the Aquilian stipulation (Inst. iii. 29. 2), was Scaevola's
most celebrated auditor, and himself the teacher of Servius Sulpicius
Rufiis, consul B.C. 51, whom Cicero calls the first of all jurists, and
who in his discussions of legal questions followed a logical method
which gave a powerful impulse to the scientific treatment of law.
Among the jurists of Cicero's age who composed works on the sub-
ject are Aufidius Namusa, Aulus Ofilius (author of the first com-
mentary on the edict), Alfenus Varus, C Trebatius Testa, Aulus
Cascellius, Q. Tubero, and Aelius Gallus.

Under Augustus we first find traces of a division of the jurists into
two sects or schools. Their respective founders, distinguished from
one another by a difference of political no less than of legal views,
were Antistius Labeo and C. Ateius Capito. Labeo had inherited
from his fether a strong republican sentiment, and was in the habit
of lamenting the prevailing disrespect of the good old laws which
had never been constitutionally abrogated. At first an auditor of
Trebatius, he attended the chambers of all the prominent jurists of his
day ; and the width of his studies liberalised his views on law, and
saved him from a failing which was not uncommon among his con-
temporaries, a slavish devotion to the tenets of some particular
teacher. A man of varied culture and instructed in far more than one
department of knowledge, his leading characteristics were a wide
intellectual range, a correct appreciation of the place of law in social
development and of its relation to other sciences, a dislike of all
pedantry, a wealth of new views and principles, with which he was
ever ready to challenge and supersede the old. Socrates-like, he
thoroughly perceived the value of clear logical division and definition
as the basis and condition of sound legal progress. Capito was more
or less of a novus homo, and a supporter of the imperial rigime^ in

£ 2

5^ INTRODUCTION.

which he Saw the best prospects of his own advancement It v&
related of him that, with a false show of independence, he opposed
Tiberius when the latter wished to stop the prosecution of a man
accused of putting an affront upon the imperial dignity. As a jurist
he was distinguished by his devotion to the letter of the law and the
traditional treatment of legal questions, and by a too literal interpre-
tation of positive rules.

The opposition between the two was thus the opposition between
fi^n absolute reliance on traditional principles and opinions supported
by approved authority, and a legal mind conscious of its powers, of
the living organic nature of law, of the inevitableness of its growth
smd expansion. It resulted in a number of legal contrbversies be-
tween Labeo and Capito, which they bequeathed to their successors ;
thus originating the two schools whose disputes were ever widening
their range, and which termed their founders and leaders 'nostri
praeceptores,' and those of their opponents * diversae scholae prae-
ceptores,' respectively. The leading disciple of Capito was Masurius
Sabinus (Gaius ii. 218), from whom the school derived its name
VSabinian,' and who, as having given it a new direction, is to be
regarded as its proper founder^ Capito had contented himself with
a passive resistance to Labeo's innovations : Sabinus took the line of
promoting the development of the law by releasing it from its tradi-
tional formalism. Among the leading Sabinians may be mentioned
C. Cassius Longinus, who died under Vespasian, Caelius Sabinus,
Javolenus Priscus' (206), Salvius Julianus (457), who has been
already mentioned as the compiler of the edictum perpetuum under
Hadrian, Sextus Pomponius (585), Sextus Caecilius Africanus (131),
and finally Gaius (535), author of the Institutionum Commentarii
quatuor, the first book, so far as we know, bearing this title and
intended for elementary instruction, and also of Libri septem rerum
quotidianarum sive aureorum, and Commentaries on the Twelve
Tables, the lex lulia and Papia, and the urban, provincial, and
aedilician edicts. Labeo's first two successors were M, Cocceius
Nerva, mentioned in Tacitus, Ann. vi. 26, and Sempronius Proculus

^ Whether these schools had a local habitation, with regular conrses of instruc-
tioQ and payment of fees, is an open question. Sabinus formed his school before
Proculus, and Pomponius tells us (Dig. I. 2. 2. 50) that he was a poor man, sup*
ported mainly by his pupils, which gives some support to this view. See Roby,
Introduction to Justinian's Digest, p. cxzvii.

* The figures in brackets altera jurist's name denote the number of extracts from
^iji writing preserved in th$ Pigest.

LAIVVERS OF THE CLASSICAL PERIOD. 53

(37), after whom this school was called Proculian ; the character
which he impressed upon its views was one of adherence to tradi-
tion, unrelieved by the genius of its master Labeo. His principal
followers were Pegasus, praefectus urbi under Vespasian, the younger
Juventius Celsus (142), and Neratius Priscus (64), whom Trajan is
said to have preferred to Hadrian as his successor in the empire.
After him on the one hand, and Gaius on the other, we have no further
traces of the controversy between the schools \ It would seem that
a reaction had set in, probably because differences of opinion which
had once been genuine had now been degraded to mere hair splitting,
or because the jurists on both sides had become possessed with the
spirit of Labeo, and were beginning to revolt against the abuse of
authority ; at least we may infer from Gaius (iii. 98) that the pupils
had taken to criticising their masters. Bocking (Institutionen, § 17)
is of opinion that the disappearance of the schools is sufficiently
accounted for by the condition of law and legislation in the age of
the Antonines, and by the establishment of public instruction in legal
subjects, upon which more will be said hereafter. However this may
be, the subsequent jurists took each his own line, though or^ly the most
famous of them need be mentioned here. From Ulpius Marcellus,
commander-in-chief in Britain under Commodus, there are a hundred
and fifty-nine excerpts in the Digest ; Q. Cervidius Scaevola (307)
was teacher of Papinian and of the emperor Septimius Severus ;
besides these, Claudius Tryphoninus (79), Venuleius Satuminus (71),
Callistratus (29), Aelius Marcianus (275), and Florentinus (42),
deserve notice. But the greatest names are yet to come. Aemilius
Papinianus was esteemed by all his successors the greatest of Roman
jurists. He commenced under Marcus Aurelius (a.d. i 61-180) a
political career which ended in his being made praefectus praetorio,
next to that of the princeps the highest post in the empire, and
throughout which he maintained a moral rectitude and an integrity
of character to which he owed his fame no less than to his distinction
as a lawyer. After Caracalla (a.d. 21 1-2 17) had murdered his
brother Geta, he called upon Papinian to justify the deed before the
senate and people ; but the jurist replied that to accuse a man who

*■ A careful enumeration of the questions known to have been matters of dispute
between the Sabinians and Proculians may be found in Roby's Introduction to
Jnstinian^B Digest, pp. cxxxl-cxli. Allusions to them occur in Inst. i. 23 pr. ;
ii. I. 35; iL 13 pr. ; ii. «0. 34; iii. 19. 4, ib. 11 ; iii. 33. 3 ; iii. 38. 3; iii. 39 pr. ;
hr. 13. a.

54 INTRODUCTION.

had been wrongfully put to death, was as good as to murder him a
second time, and steadily refused to speak a word in the emperor's
behalf; the refusal cost him his head. From his writings there are
five hundred and ninety-five excerpts in the Digest, but this number
is no criterion of the authority which he enjoyed in legal circles.
Contemporary with Papinian was Domitius Ulpianus, who wrote
principally under Caracalla, and became praetorian prefect to Helio-
gabalus (218-222 a.d.) ; he met with a violent death at the hands of
the soldiers under his command in a.d. 222. Owing to the large
number of his writings which were extant in the time of Justinian,
the aggregate of extracts from them (2462) in the Digest exceeds
that from any other jurist ; in fact he contributed to that compilation
nearly one-third of its contents. Julius Paulus, who sat in the
council of Septimius Severus (198-211 a.d.) and was praefectus
praetorio under Alexander, was author of the receptae sententiae,
and is represented in the Digest by two thousand and eighty passages.
The series of classical jurists closes with Herennius Modestinus, a
pupil of Ulpian, and teacher of the young Maximinus about a.d.
238, from whose writings the Digest contains three hundred and
forty-five extracts.

So far we have given, no account of Gaius, who as the author of
a text-book which is familiar to most students of Roman law, and
upon which the Institutes of Justinian is so largely founded, deserves
a somewhat more extended notice. It will seem a strange thing to
say that we possess less knowledge of him than of almost any other
famous Roman lawyer, and yet beyond his works and approximate
date we know little or nothing : even his full name appears to have
been forgotten before he became celebrated. From an extract from
one of his works preserved in the Digest^ it seems clear that he lived
as early as Hadrian, and from internal evidence' it is conjectured
that the later portions of his Institutes were written shortly after the
death of Antoninus Pius in a. d. 161 : the last of his writings is a * liber
singularis ad Senatus consultum Orfitianum,' which was enacted a. d.
178. Besides the elementary manual upon which his reputation
chiefly rests, he was the author of twelve other works, including
commentaries on the urban and provincial edicts, seven books
* Aureorum ' (from which considerable extracts are embodied in the
Institutes of Justinian), six on the Twelve Tables, and minor mono-
graphs: 535 excerpts from these volumes appear in the Digest.

* Dig. 24. 5. 7 pr. • E.g. ii. 195.

GAIUS. 55

The only other fact which we know about Gaius, and to which a
later reference will be made, is that, unlike the great lawyers whose
names have been recently mentioned, his works were not made
technically authoritative till nearly three centuries after their com-
position. There is, it is true, an ingenious hypothesis of Mommsen,
which does not seem to meet with much countenance from con-
temporary writers, that Gaius was a provincial, and taught rather
than practised the law, probably at Troas in Asia : a theory alleged
to be supported by his familiarity with the Greek language and
writers who employed it and with the laws of foreign peoples,
and by the proportions of his treatise upon the provincial edict,
which no other lawyer is known to have taken as his theme. It
certainly appears strange that he omits to mention enactments made at
Rome before or in his own lifetime, which have an intimate bearing
on topics that he dealt with, and with which no lawyer living then
could have been unfamiliar, and that his own works not only are not
cited by his greater followers, but do not seem to have enjoyed any
reputation till long after his decease; on the other hand, there is
some evidence in his Institutes that the courts with which he was
acquainted were Roman rather than provincial. The character of
his best known work has also been the subject of speculation, it
having been thought that it was compiled rather as notes for profes-
sional lectures than as a set manual for elementary students. Few
books have had a more romantic history. Superseded in Justinian's
time by that emperor's own Institutes, all trace of it was from that
time lost : and it was only in 1816 that a copy of it was discovered
by Niebuhr in the Chapter Library at Verona, over which a later
scribe had written the Epistles of St Jerome.

It remains to consider the nature of the influence which these
great lawyers exercised upon the law of Rome, and which is mainly
attributable to a change in their position coincident with the fall of
the Republic. Under the free Commonwealth it had been com-
petent to any one to profess the law, and to give advice on con-
sultation : the form and effect of the counsel's opinions (responsa)
had been under no limitations. So far as the profession, as such,
left any mark upon the material system, it was through the weight of
a united opinion, which in the form of Misputatio fori' (to which
effect was apparently given by the praetor) no doubt brought about
a considerable expansion of the civil law. The influence of the
jurists was one which the emperors would naturally find it difficult to
destroy, not only because by its long and steady growth it had

56 INTRODUCTION.

achieved a stature and a traditional position which might have long
defied the direct attacks of opponents, but because it had always
been independent of political rank, and unconnected with any con-
stitutional office through which it might have been assailed. The
craft of Augustus suggested the scheme of bringing it into con*
nection with, and placing it in a subordinate relation to, the new
imperial system. He resolved to make the function of a jurist^
so far as the class was to possess any authority, a quasi-public func*
tion; and this was effected by conferring on certain of the more
eminent lawyers the ius respondendi, whereby their responsa
would be given, as it were, under imperial sanction : et, ut obiter
sciamus, ante tempora Augusti publice respondendi ius non a
principibus dabatur, sed, qui fiduciam studiorum suorum habebant^
consulentibus respondebant. Neque responsa utique signata dabant,
sed plerumque iudicibus ipsi scribebant, aut testabantur, qui illos
consulebant. Primus divus Augustus, ut maior iuris auctoritas
haberetur, constituit, ut ex auctoritate eius responderent, et ex illo
tempore peti hoc pro beneficio coepit Et ideo optimus princeps
Hadrianus, cum ab eo viri praetorii peterent, ut sibi liceret re*
spondere, rescripsit eis, hoc non peti, sed praestari solere, et ideo, si
quis fiduciam sui haberet, delectari se, populo ad respondendum se
praepararet ' (Pomponius in Dig. i. 2. 2. 49). Augustus himself does
not seem to have done more than conceive this system, for Pom*
ponius observes, in immediate connection with the passage just
cited, that Masurius Sabinus was the first lawyer 'qui publice re-
spondit,' and that the privilege of giving opinions to the people
(populo) was bestowed on him by Tiberius. There is no small
difficulty in understanding this meagre notice of the genesis of the
most valuable portion of the extant Roman law, which is unsupple-
mented by the information of any other writer of authority. As-
suming that there is no difference of meaning between * publice'
and 'populo' respondere, it seems clear that to Pomponius these
expressions denote the same idea as 'respondere ex auctoritate
principis,' and the anecdote about Hadrian almost justifies the belief
that in the reign of that emperor the opinion of an unauthorised
lawyer was not dignified with the style of * responsum ' at alL The
requirement that official responsa should be written and sealed by
their author, as a precaution against forgery, suggests that the true
difference between them and the advice of inferiof practitioners was
that the former were statements of law bearing on a case actually
under litigation, and binding on the judge, whose sole function was

THE I US RESPONDENDL 57

to apply the law ^o stated to the facts in issue. That counsel should
lay down the law to judge, rather than judge to counsel, will to
English readers seem altogether anomalous, but the sense of
anomaly will disappear if it be remembered that under the formulary
procedure which held its ground till the time of Diocletian the
*iudex' was merely a private individual appointed by the praetor
to hear and determine the particular case, and that it had always
been the practice for these 'private judges' to inform themselves
respecting the law by which it should be governed by consulting the
lawyers who frequented the forum for the purpose. Others, again,
would give the sealed responsum a more extended force, and main*
tain that it was authoritative not only for the case with reference to
which it was issued, but for all similar cases as well. However this
may be, the practice of investing certain selected jurists with the ius
respondendi was continued by Tiberius' successors, and the pre-
rogative was constantly assuming more and more the character of
a magisterial function; thus Gaius (i. 7) defines the prudentes as
those ' quibus permissum est iura condere,' and a later writer speaks
of a jurist being possessed of w/iio^eriic^ dvvafus. It is not certain
what discretion a index had under the older system as to accepting
or rejecting the opinion of a prudens whom he consulted. Now,
however, he was obliged to decide in accordance with the advice of
any jurist to whom the ius respondendi had been delegated by the
emperor. Yet among those who were possessed of this privilege
there was no ascertained order of precedence; how then was the
matter decided if the two parties to an action submitted discordant
responsa ? In such a case we must suppose that the judge was free
to choose whichever of the two opinions seemed to him the more
satisfactory. But the difficulty became greater as in course of time
collections of responsa were published by their authors, to which
even after their death litigants could appeal no less than to those
given by living men; and it was obviously easier every day for
a party to quote from this or that jurist an opinion diametrically
opposed to that brought forward by his adversary, and even to
involve the judge in perplexity with an array of responsa of which no
single one agreed precisely with any of the rest, A solution of this
difficulty was attempted by a rescript of Hadrian, of which Gaius
speaks in the passage in which he is defining the responsa pru*
dendum : * respoifsa prudentium sunt sententiae et opiniones eorum
quibus permissum est iura condere ; quorum omnium si in unum
sententiae concurrant, id quod ita sentiunt legis vicem obtinet ; sj

58 INTRODUCTION.

vero dissentiunt, iudici licet quam velit sententiam sequi, idque
rescripto divi Hadriani significatur ' (i. 7). It is less easy to under-
stand Gaius' own words here than the effect of Hadrian's somewhat
off-hand piece of legislation. Incidentally it seems to have given
authority to a practice, which had perhaps already acquired some
vogue, of citing for the judge's information not only responsa, but
any written work of an authorised jurist : this interpretation is sup-
ported by Theophilus, who (Paraphr. i. 2. 8) speaking of law made
by the prudentes, says, tA ^ nap* ai/r&p vofioBtravfUPOP ycpurf ovoftan
MKkrfToi 'responsum prudentium,' and by Papinian's general use of
the phrase 'auctoritas prudentium' to denote any statements or
records from which the opinions of jurists could be collected. On
the other hand, Savigny (System i. p. 156) gives responsa here a
strictly literal interpretation, and if his view is right no inference can
be drawn from the passage as to the judicial procedure when the
parties to a suit supported their respective allegations by citing
diverse views from the writings of iuris auctores. A third view is
put forward by Professor Muirhead, who thinks that the number of
living authorised counsel was very limited: that a judge, if he
desired their assistance, was required by this rescript of Hadrian
to consult them all (quorum omnium, etc.); that if they were
unanimous, but only then, their opinion might be no more dis-
regarded than a statute might: and that when they differed the
judge must decide for himself.

The end of jurisprudence is in general the same as that of all
science; a complete grasp, a systematic penetration of its subject-
matter; the power of following the most general propositions into
their minutest ramifications, and inversely of ascending from the
most concrete case, through all intermediate stages of thought, to
the principle which governs it. This grasp and this power belonged
in an admirable degree to the Roman jurists ; their highest qualities
are their mastery of their subject, their wonderful capacity of regard-
ing and deciding every concrete case with reference to some rule,
and their logical subsumption of all their rules under a comparatively
small number of great legal principles. Accordingly, in some re-
spects their legal method left nothing to be desired. But from
another point of view the Roman jurisprudence is more open to
criticism. The cause may be disputed ; it may have been the back-
ward state of general scientific knowledge, or the exclusion of the
jurists from all other departments of political life : but certain it is
that their absorption in their peculiar study blinded them to the fact

ROMAN LEGAL EDUCATION. 59

that law is but one of the agencies by which the life of a nation is
developed, and that it stands in close relation to other influences all
of which must play their part in duly promoting the welfare of the
social organism. These other influences — literature, what are now
called the moral or social sciences, art, and we may perhaps add,
religion — they left more or less out of sight, or at any rate failed to
see the inevitable correlation between them and their own favourite
subject, to appreciate the function of philosophy as the common
element in, the connecting link between, the various branches of
human thought. As the queen of the sciences, philosophy watches
over the element which they share each with one another, by keeping
them before her in orderly review, by restraining each within its due
sphere, by maintaining them in their proper relation, she discharges
her function of giving to each its perfect form, its true development.
This relation between philosophy and the sciences was not ade-
quately perceived by the Roman jurists, because its true appreciation
depends on conditions many of which are realised only in the
modem world. To them jurisprudence was philosophy and all
philosophy. Ulpian says, ' iustitiam colimus, et boni et aequi noti-
tiam profitemur; aequum ab iniquo separantes, licitum ab illicito
discementes, bonos non solum metu poenarum, verum etiam prae-
miorum quoque exhortatione efficere cupientes, veram nisi fallor
philosophiam, non simulatam aifectantes.' The words are those of
a moralist, not of a lawyer ; and the failure to distinguish sufficiently
between jurisprudence and the other sciences, notably ethics, resulted
in logical faults, especially of definition, which mar to no small
degree the excellences by which the Roman law is on other grounds
distinguished ^

The mode in which the earlier prudentes acquired their know-
ledge of law has been already noticed. After a short preliminary
instruction in the leading terms and distinctions of jurisprudence,
which was denoted by the term instituere, their training was purely
practical, and consisted in attending a leading lawyer in court and
chambers, and in thus picking up both learning and the modes of
applying it No jurist refused the youth of Rome the privilege of
thus attaching themselves to him as auditores, in order under his
auspices to learn the law ; indeed it was considered an honourable
distinction : * ius civile docere,' says Cicero, * semper pulcrum fuit,

^ See, for example, the definilions of justice and jarispradence in the first three
lines in Inst. bk. i.

6o INTRODUCTION.

hominumqtle clarissimonim discipalis floruerunt domus ;' and of Q.
M. Scaevola he says, 'qui quamquam nemini se ad docendum dabat,
tamen consulentibus respondendo studiosos audiendi docebat.* This
practical course of instruction continued throughout to be the prin-
cipal mode in which a professional lawyer acquired a knowledge of
his subject-matter and of civil procedure. The only change was that
it now usually extended over a longer period ; a prominent jurist's
auditores continued their connection with him even after they had
attained a competent legal knowledge, in order to have the advantage
of his authority and advice in their own practice. In this relation
they were called studiosi. Modestinus was studiosus to Ulpian
(*Herennio Modestino studioso meo de Dalmatia consulenti re-
scripsi' Ulp. in Dig. 47. 2. 52. 20), and Paulus says (Dig. 50. 13. 4)
' Divus Antoninus Pius rescripsit, iuris studiosos, qui salaria petebant,
haec exigere posse ;' so that studiosi are frequently contrasted with
iuris auctores, as lawyers who had not achieved an independent
position. Naturally too book learning now occupied a larger share
of a student^s attention than before, owing to the increase and greater
excellence of the juristic literature.

In the preliminary course which, as has been observed, preceded
the stage in which one became an * auditor,' there were considerable
changes in the time of the classical jurists. Systematic teachers of
elementary legal knowledge arose, after the pattern of the rhetoricians
whom Cicero decried (Orat. 41. 42), and opened regular schools
with a fixed rate of remuneration. The exact date of this innovation
is uncertain, but it can hardly be later than Antoninus Pius (a. d.
1 38-161); Gellius, who wrote shortly after this period, alludes to a
legal problem which in his youth was much discussed * in plerisque
Komae stationibus ius publice docentium aut respondentium,' and
by the stationes ius docentium (whom he distinguishes from respon-
dentes or jurists) he probably meant elementary schools of law.
These teachers are called by Ulpian * iuris civilis professores * (Dig.
50. 13. I. 5), and to the profession of a liberal art were attached
some not inconsiderable privileges (see Inst. i. 26. 15); but they
were not held in any very high esteem, such as that enjoyed by the
great jurists, though some writers have erroneously thought that the
latter even actually engaged in this form of instruction. But the old
theory that the teaching of a liberal art should be gratuitous, which
was in part the foundation of the dislike of the sophists, was main-
tained. Ulpian says (Dig. loc. cit.) that the iuris civilis professores
could not sue in the courts for their fees, for to m^ke a traffic of

CONDITION OF THE LA IV AFTER CONSTANTINE. 6l

such a * res sanctissima * was a disgrace ; though one of the statutory
privileges of all 'professors' was the obligation of the praeses to
assist them in recovering their honoraria by his extraordinaria
cognitio (Dig. loc. cit. § 6).

Under Constantine (a.d. 306-337) the constitution lost its last
semblance of republican form, and assumed the character of an
open despotism. The most important results of this were a more
rigid concentration of all executive authority, separation of the civil
and military administrations, which had hitherto existed in close
combination, and the institution of a graduated official hierarchy,
with a consequent division of ranks and dignities. The distinctions
of condition rest either on an independent foundation or on the
simple will of the emperor. Of the first kind are the old contrasts
between cives, Latini, and peregrini, between ingenui and libertini,
and between men of unblemished civil reputation and infames ; also
a new one between proprietors and non-proprietors of land. Of the
second kind are the patriciate, a new distinction devised by the
emperors as a reward for faithful service in the state or in the field,
and the other dignities of the court and of the civil and military
administration, dignitates palatinae, civiles, militares. All of these
were arranged in a fixed order of precedence, and differentiated from
one another by terms of honour such as illustris, spectabilis,
clarissimus. It would be tedious, however, to enter into a full
account of these, though more or less connected with the subject of
legislative power. Constantine's three sons, Constantine II, Con^
stantius, and Constans (a. d. 336-361), by their internal discords
and the weakness of their efforts to suppress other pretenders
to the throne, paved the way to the final division of the empire
into West and East, which took place under Arcadius and
Honorius, A. D. 395. For some generations the two empires
subsisted side by side with one another. From the commence-
ment of the fifth century, however, the Germanic peoples began
to intrude themselves into the dominions of the Western Emperor,
and their aggressions became year by year more menacing, until,
after having long been a mere object of booty to the barbarians,
the Western Empire was finally absorbed in their conquests a.d.
476.

From this brief notice of the political history we turn to a more
appropriate subject, the condition of the law in the period intervening
between Constantine and Justinian. Of the influences to which
must be attributed the general character and tendency of its develop*

62 INTRODUCTION.

ment one is intimately connected with the division of the empire
into West and East The jurists had raised the ius gentium to a
level with the ius civile, and had esteemed naturalis as powerful a
principle as civilis ratio. But among the peoples which composed
the Eastern Empire, and which were Roman in name only, it was
inevitable that the universal should gain the preponderance over the
particular jural element, as more favourable to the survival of the
legal system beyond the life of the individual nation ; the part which
was *civitatis proprium* and strictly national could not fail to decay
and gradually disappear. Old legal dispositions, such as mancipatio
and in iure cessio, were practically superseded by free forms peculiar
to no single nation, and simultaneously the distinctions of cives,
Latini, and peregrini ceased to have any real meaning, even if they
were still occasionally to be found ; thus the old separation of ius
civile and ius gentium rapidly tended to disappear by the former
becoming absorbed in and swallowed up by the latter. Secondly, it
is to be observed that Constantine had publicly sanctioned
Christianity, which Theodosius further proclaimed as the religion: of
the state : and the effects of this began to show themselves at once
in the field of private law. There was thus infused into both
legislation and judicature the spirit of a higher equity and a diviner
justice than had been familiar to the classical jurists, which left its
traces during this period on many of the rules relating to slavery,
colonatus, marriage, concubinage, and patria potestas. Justinian
himself legislated openly in favour of the Church ; for examples of
this reference mad^ be made to the index to the text (s. v. * Church ').
Lastly, the constitutional changes which have been briefly noticed
produced modifications in private law through the revolution which
they effected in judicature, and consequently in civil procedure, and
which will be treated in a later part of this book.

The legislative authority by which the legal changes thus generally
described were introduced requires some notice. The old magistrates
of the populus had now formally been transformed into imperial
officials, and we can hardly believe that the latter could have deemed
themselves competent to exercise the praetor's function of harmonis-
ing the *strictum ius' with the *ius aequum' by their own in-
dependent action. 'Ex abundanti cautela,' however, Constantine
issued a constitution expressly forbidding them to attempt any such
task : ' inter aequitatem iusque interpositam interpretationem nobis
solis et oportet et Ucet inspicere' (Constantine in Cod. i. 14. i).
Nor is it to be expected that, under such conditions as those of the

THE LAW OF THE LATER EMPIRE. 63

Eastern Empire, new law could be begotten by usage. Usage or
custom, so far as it is fitted to become law, is grounded upon a
common apprehension of an unwritten rule, upon a common
conviction that so and so is right and ought to be done. Now the
peoples of whom the empire was composed were so diverse that
they had but one charactertistic in common, viz. that they were not
Romans. They could have no common legal habit as a nation,
and thus could generate no new positive customary law save merely
local rules ; the only influence they could unite to exercise was a
negative one, to abandon all such portions of the system as were
purely and exclusively Roman. And this destructive work, as we
have seen, they did do. So with the other sources of the ius scriptum
which are enumerated in the Institutes (i. 2. 3). Leges proper,
plebiscita, and senatus consulta, as we know, had long been obsolete ;
and it has been seen that all growth of the ius honorarium had
ceased since the time of Hadrian. Still, the development of law
might have been carried on, as it had been from Augustus to
Maximian, by the responsa prudentium and systematic treatises of
authorized jurists ; but we look in vain for these forms of legal
activity, for true jurisprudence had already died a natural death.
The juristic literature of the period now under consideration consists
merely of compilations from statutes or constitutions and from the
writings of earlier prudentes. Theodosius II (a. d. 408-450) attests
the cessation of true juristic work in the enactment by which he
promulgated his codex constitutionum : ^saepe nostra dementia
dubitavit, quae causa faceret, ut tantis propositis praemiis, quibus
artes et studia nutriuntur, tam pauci raroque extiterint, qui plena
iuris civilis scientia ditarentur, et in tanto lucubrationum tristi pallore
vix unus aut alter receperit soliditatem perfectae doctrinae.' His
own explanation of the phenomenon is the vast multiplicity of
imperial ordinances and juristic books without an adequate study of
which a knowledge of the law was impossible ; and the hope is
expressed that a remedy for this will be afforded by the comparatively
small dimensions of his own compilation.

Direct imperial legislation thus remained the only form in which
changes could be effected in positive law. What Justinian says in
Cod. I. 14. 12 is true of the whole period extending backward from
himself to Constantine : ' In praesenti leges condere soli imperatori
concessum est, et leges interpretari solum dignum imperio esse
oportet ;' and this will account for the ever-increasing activity of the
imperial legislation. In the intenral of 130 years between Constan-

64 INTRODUCTION.

tine and Theodosius II the mass of general constitutions had already
become so great that the latter emperor's compilation formed a book
of very considerable dimensions, and yet in this much was curtailed,
still more omitted ; for instance, it contained none of the enactments
of Diocletian, whose contributions in the code of Justinian number
1247.

We have already touched upon the practical difficulties which
arose in the application of responsa to the judicial decision of actions
which came before the courts, and noticed the usage which apparently
prevailed as to this matter in the earlier empire, and which Gaius
tells us was directly confirmed by a rescript of Hadrian. In the 200
years which had elapsed between the period marked by the names
of such men as Ulpian and Papinian and the age of Theodosius II
these difficulties had considerably increased; for it seems beyond
dispute that, whether through Hadrian's rescript or some other
cause, the authority which had at first belonged only to responsa had
extended itself to the voluminous general legal writings of lawyers
who had possessed the ius respondendi, and it had become im^
peratively necessary to discover some remedy. That which most
immediately suggested itself was to limit the authority which this
literature in general enjoyed to a moderate number of books, a plan
which had already in its favour the rough scheme of precedence
which general practice had established among the works of the
classical jurists. Certain books had acquired a prescriptive authority
in the various schools of law, public and private, which were located
in various parts of the empire. A student commenced with the
Institutes of Gaius, which were followed by the Commentaries on
the Edict, especially those of Ulpian and Paulus, and the latter's
responsa, quaestiones, and receptae sententiae: the course closed
with Papinian and Modestinus. The writings of these five jurists
had thus obtained a preponderance which naturally extended itself
from the schools to the tribunals. Yet among them there were a
great many controversies, and in this epoch neither the emperor nor
the parties to an action were likely to be satisfied with the rule which
Gaius (i. 7) states on the authority of Hadrian, that where jurists of
different views were cited the judge might adopt whichever of the
conflicting views he pleased. In order to obviate these difficulties,
Constantine had (a.d, 321) deprived of all validity the notes of
Ulpian and Paulus on Papinian, in which they had often found
occasion to controvert his opinions. A more complete remedy was
provided by the so-call^ * law of Citations,' issued a. d. 426 by the

THE LAW OF CITATIONS. 6$

emperors Theodosius II and Valentini^n' III. By this it was
enacted that when conflicting opinions were cited in a court of
justice from juristic writings with statutory authority, that opinion
should be adopted by the judge in whose favour most jurists were
brought forward ; if the numbers were equal, the view of Papinian
should prevail; if, in case of equality, no definite opinion on the
case in hand could be extracted from this jurist, the judge might
select from the conflicting views at his own discretion. It thus
became the business of the parties to relieve the judge of the labour
of collating the 'iuris auctores.* The procedure is compared by
Rudorff to that of the imperial council, or court of appeal, in which
the majority of votes had always won the day ; * when it had ceased
to be usual to convoke and consult living jurists, the practice was
transferred to the councils of the dead.' So far the * law of Citations '
creates no difficulty ; but as to the effect of another passage there
has been much diversity of opinion. That passage runs as follows :
*Papiniani, Pauli, Gaii, Ulpiani atque Modestini scripta universa
firmamus, ita ut Gaium, quae Paulum Ulpianum et cunctos comitetur
auctoritas, lectionesque ex omni ejus opere recitentur. Eorum
quoque scientiam, quorum tractatus atque sententias praedicti omnes
suis operibus miscuerunt, ratam esse censemus, ut Scaevolae, Sabini,
Julian! atque Marcelli, omniumque quos illi celebrarunt, si tamen
eorum libri, propter antiquitatis incertum, codicum collatione
firmentur. Ubi autem diversae sententiae proferuntur,' etc. (Cod;
Theod, I. 4. 3). This is explained by some writers^ to mean (i)
that statutory force was hereby for the first time given to the works
of Gains, Papinian, Ulpian, Paulus, and Modestinus, and to those of
other prudentes who were therein cited; and (2) that all other juristic
literature (including the notes of Ulpian and Paulus on Papinian)
was in future to have no validity whatever. If this interpretation is
the true one, the view which has been above stated, that the writings
of authorized jurists had for some time possessed authority equal to
that of their responsa, is clearly erroneous. But the arguments
against it are extremely strong. Though the Maw of Citations^
confirms the authority of the five leading jurists, it is very far from
expressly excluding the authority of others ; it mentions others, and
clearly only exempli gratia, as representative of the great mass of

* £. g. Savigny, System, i. ( a6 ; Histoiy of the Roman Law in the Middle Ages,
p. a8» The view adopted in the text is supported by Pnchta, Bethmann-HoUweg,
Danz, and Karlowa.

r

66 INTRODUCTION.

other juristic literature ; and the weight which it allows to these
others is not less, except in cases of equality of voices, than that of
the five. Secondly, it is to be observed that the works of other
jurists are frequently cited as authorities by later emperors (e.g.
Julian by Leo and Anthemius in Cod. 6. 6i. 5; Marcian by
Justinian in Cod. 7. 7. i; Tertullian in Cod. 5. 70. 7). But the
strongest argument of all is to be found in the Constitutions issued
by Justinian with reference to the compilation of the Digest, in
which he instructs the compilers to make excerpts from the authorized
jurists, and in the fact that, acting under this commission, they
selected thirty-eight writers, and inserted in the work passages from
every one of them ; this they could not possibly have done if the
only authorized jurists at the time of their appointment had been
the five whose names have been mentioned. And the force of this
fact is irresistibly increased by the words used by Justinian in Cod.
I. 17. 2. 20 with reference to the publication of the Digest, where he
says that he has therein made selections from the jurists (legislatores
et commentatores) 'quos et anteriores piissimi principes admittere
non sunt indignati.'

I It would seem then that the true meaning of the disputed passage
is that which has been given to it by other civilians' ; namely, that
it was intended to supply a criterion by which the authority of any
and every juristic writer could be tested. Its intention was not to
exclude any authorized jurist, but to remove the difficulty which
arose from the existence and quotation of works by writers who had
received no auctoritas or ius respondendi, and to which Justinian bears

^ witness in Cod. 1. 17. i. 4. The test was to be the ius respondendi,
and the possession of this was to be inferred from the fact of one
jurist being cited as an authority by another of undeniable reputation.
The legislator attained his object by selecting a small number of the
most recent and distinguished jurists who had possessed the ius re-
spondendi, and by confirming their authority, and also that of all
others whose views they quoted. Some difficulty is occasioned by
the words ' si tamen eorum libri propter antiquitatis incertum codicum
collatione/ which seem to mean that even when a jurist is cited by
one of the five, he is not to be allowed a voice in the decision of a
case unless his view, as quoted, is proved and confirmed by a com*
parison of the passage of the citing jurist with the original work
(codices) of the author quoted. The enactment would thus prac-

* E.g. Puchta, Institutionen, vol. i. p. 372, (8th edition, 1875).

PARTIAL CODIFICATIONS BEFORE JUSTINIAN. 67

tkally secure to all approved writers the freight which they had
hitherto enjoyed, while it would relieve judges of the weary task of
listening to the opinions of others of only second-rate importance ;
it excluded only jurists who had never possessed a first-rate reputa-
tion, and in particular those who lived after Modestinus\

The only subject with which we have yet to deal, before proceeding
to speak of the l^slation of Justinian, is that of the codices constitu-
tionum, or compilations of imperial ordinances, which spread them-
selves over about two and a-half centuries. The first with which we
are acquainted is the codex Gregorianus, a collection mainly of
rescripts issued from the time, probably, of Hadrian up to a.d. 284,
and principally rescripts of Septimius Severus and the emperors who
succeeded him. Its exact date is uncertain, but it cannot well be
placed earlier than a.d. 295 ; its arrangement was based upon that of
the current commentaries on the Edict. Another compilation of the
same character is the codex Hermogenianus, which may be regarded
as an appendix to the foregoing. The oldest constitution which it
contained was issued a.d. 290 or 291 ; the great majority of them
belong to Diocletian and Maximian (a.d. 284-305), though seven
enacted by Valens and Valentinian, about a.d. 365, are also referred
to it ; if this is correct, its composition must lie between a.d. 365 and
A.D. 398, but there are civilians who place it many years before the
earlier of these two dates, and accordingly deny that it could have
comprised constitutions of Valens and Valentinian. Both of these
codices, so far as we know, were formed by private persons, that is to
say, not under the authority of an imperial commission ; they were in
constant use both in the West and in the East, and lost their im-
portance in the latter half of the empire only by being absorbed in
his own code by Justinian.

The contents of the so<:alled * Vatican fragments * are more mis-
cellaneous. They are portions of a compilation of excerpts from
jnnstic writings and imperial rescripts and edicts, and were discovered
in 1820 and first published in 1823. The author is unknown, but the

' The opening words in the passage transcribed above from the ' law of Cita-
tions,' by which the statutory authority which the other four leading jurists had
always possessed is extended to Gaiii% go to show that the latter was not a
'iuis anctor/ and had never been invested with the 'ins respondendi.* This in-
£en&ce is supported by the fact that though his writings were so various, they
contained no responsa, though among them was a ' liber de casibus/ in which he
Collected a large number of illustrative cases, many of which were imaginary,
while of the real ones none had been authoritatively pronounced upon by himselil

F 2

68 • JNTRODUCTIOrf.

date of the work must be between a.d. 372 and a.d. 438, for it con-
tains a constitution issued in the first of these two years, and in the
latter the Theodosian code was published. The jurists whose works
are most largely laid under contribution are Papinian (responsa and
quaestiones), Ulpian (libri ad edictum, etc) and Paulus (libri ad
edictum, sententiae, responsa, quaestiones, etc.) ; Celsus, Julian, and
Pomponius are also often cited. The work seems to have had a
purely practical purpose, and was arranged in Titles subdivided into
rubrics. Seven of the Titles are extant, relating to the following sub-
jects : (i) ex empto et vendito \ (2) de usufructu ; (3) de re uxoria
et dotibusj (4) de excusatione; (5) quando donator intelligatur
revocasse voluntatem ; (6) de donationibus ad legem Cinciam ; (7)
de cognitoribus et procuratoribus.

In A.D. 429 Theodosius II, Emperor of the East, informed the
senate of his resolution to codify the constitutions of Constantine I
(a.d. 306-337) and all his successors by means of a commission of
nine persons: ^Ad similitudinem Gregoriani atque Hermogeniani
codicis cunctas coUigi constitutiones decemimus, quas Constantinus
inclytus et post eum divi principes nosque tulimus, edictorum viribus
aut sacra generalitate subnixas * (Cod. Theod. i. i. 5). Nothing, how-
ever, was done till a.d. 435, when a fresh commission of sixteen per-,
sons was appointed for the purpose, with power to make alterations
in individual constitutions. The result was the Theodosian code, pro-
mulgated in February a.d. 438, with statutory force from and after the
Commencement of A.D.439,as the only authority for the'ius principale,*
or imperial legislation, from Constantine I to that date. It consisted
of sixteen books, arranged separately in Titles and rubrics, and the
constitutions in each Title were placed in chronological order. The
first five books were arranged on the plan of the commentaries on the
Edict, and contained most of the enactments relating to private law.
The sixth to the eighth books consist principally of constitutional
and administrative ordinances ; the ninth is criminal law ; the tenth
and eleventh relate to the financial system, and in part to procedure ;
the twelfth to the fifteenth, to the constitution and administration of
towns and other corporations, and the sixteenth contains the consti-
tutions which deal with the church and the ecclesiastical system im
general. This code was accepted in the West as well as in the East,
and partly thus, partly by the * law of Citations' of twelve years* earlier
date, uniformity of law was secured throughout the two halves of the
empire. Precautions were also taken against subsequent divergence ;
the two governments agreed that constitutions which either might

THE THEODOSIAN CODE. 6(j^

iind occasion to make should be comtnunicated by the one to the other,
and subject to revision by mutual consent be published by both legis-*
latures ; in de&ult of this procedure they should have no universal
validity. In contradistinction to the code, such single enactments
were called novellae leges or novels ; a number of them were issued
by Theodosius, a.d. 448, and confirmed by Valentinian III in the
West in the following year. The joint style of enactment was actually
followed till A.D. 455, and there are several collections of novels which
belong to this period. From a.d. 455 the tie between the two empires
was greatly weakened, though Anthemius (a.d. 467-472) published
in the West an enactment issued in the East by Leo : formally, how-
ever, the connection was maintained, so that the new constitutions
still bore the names of both emperors, though the place of their issue
or the province of the magistrates to whom they were addressed
enable one to infer to which of the two empires they more properly
belong.

Certain compilations of Roman law made by the barbarians who
swept away the Western empire deserve a passing notice, (i) Among
the Ostrogoths, whose king Theodoric (a.d. 475-526) conquered Italy
in A.D. 493, and ruled it as representative of the emperor at Constan-
tinople, the Roman and German systems did not, as elsewhere, stand
in opxx)sition to one another, but the Gothic invaders resigned their
own law and submitted themselves to that of Rome. The * Edictum
Theodorici ' is a collection of the most practically important rules of
Roman law arranged in statute form for the purpose of enabling the
countrymen of Theodoric to know the law under which they lived,
and is based on the imperial constitutions and the sententiae and
responsa of Paulus. Among the Visigoths and Burgundians, on the
other hand, the original subjects of the empire retained their own
jurisprudence, to which their conquerors declined to submit them-
selves. Thus (2) the codex Alaricianus (or breviarium) was a kind
of Digest of the law observed by the Roman subjects of the Visigoth
king Alaric II (a-d. 484-507), comprising, besides imperial constitu-
tions, very large portions of the commentaries of Gaius, and excerpts
Irom the sententiae of Paulus and Papinian's liber I responsorum.
(3) A compilation of Roman law for. the Roman subjects of the
Buigundian empire was made by order of king Sigismund about 517
aj>. ; it is usually termed * Papian ' (abbreviated from Papinian,
because it is said to have commenced with that jurist's liber I respon*
sorum), and contains forty-seven Titles, part of which are taken from
^ code of Alaric

70 INTRODUCTION.

Justinian, who was of Sclav descent, was at the age of forty-five
(a. d. 527) raised by his uncle Justinus to the position of joint ruler of
the Eastern Empire, and in the same year, by the death of his partner,
he became sole emperor. In the interval of somewhat less than a
century which had elapsed since the legal reforms of Theodosius and
Valentinian, a process of divergence had been constantly going on
between the law as laid down in the code of Theodosius and the *law
of Citations,' and the law as actually applied in the tribunals. This
was principally due to the small number of copies which existed of the
authorized enactments and juristic literature : ' Homines etenim, qui
antea lites agebant, licet multae leges fuerant positae, tamen ex paucis
lites praeferebant, vel propter inopiam librorum, quos comparare eis
impossibile erat, vel propter ipsam inscientiam, et voluntate judicum
magis quam legitima auctoritate lites dirimebantur ' (Justinian in Cod.
I. 17. 2. 17). It had thus become extremely necessary that these
should be multiplied, and also, if possible, recast in a more convenient
form, which should enable such alterations to be made in the substan-
tive law as circumstances demanded, and also secure the incorporation
in the main work of the detached constitutions which had been pub-
lished since the code of Theodosius. Theodosius had himself con-
ceived the design of combining the writings of the authorized jurists
and the imperial legislation (which had now been long contrasted
under the terms ius and leges) in one comprehensive statute book ;
but the idea of combination had produced no results, and of that
emperor's two great reforms the one related to ius, the other to leges
only. When Justinian had resolved on his great scheme of giving a
new form to the Roman law, the enormous mass of the material and
the convenience of dividing the labour of codification caused him to
prefer the retention of the two elements of the ius scriptum in separa*
tion. He also hesitated whether to retain them in their existing
shape, subject of course to such alterations as were called for by the
necessity of harmonising them inter se, and with the law as at present
administered, or, while preserving their tenor and substance, to com-
pletely alter their literary form ; he tells us that a regard for the past,
and admiration for the services which the jurists and his imperial pre-
decessors had rendered to jiuisprudence, had decided him in favour-
of the former alternative.

The codification of the imperial legislation, as having been in part
already executed, presented the least difficulty; its claim was also the
more pressing, because all imperial officers were required by law to
possess copies of the existing codices. This task was accordingly

THE CODE AND DIGEST OF yUSTINIAN. 71

first taken in hand. In A.t>. 528 Justinian appointed a commission
for the purpose of ten persons, among them being Tribonian, who
played so important a part in the legislative work of the next few
years, and who not improbably suggested to his master his whole
scheme of legal reform. The work with which they were entrusted
was to form a single code out of the codices Gregorianus, Hermoge-
nianusy and Theodosianus, and the constitutions issued since a.d. 439;
omitting all that was superfluous, reconciling such enactments as were
inconsistent with one another, and, where convenience required, com-
bining several into one (* coUigentes vero in unam sanctionem, quae
in variis constitutionibus dispersa sunt, et sensum earum clariorem
efficientes ') ; finally, they were authorized to make any alterations in
individual constitutions which they should deem necessary ('adiici"
entes quidem et detrahentes, immo et mutantes verba earum, ubi hoc
rei commoditas exigebat'). The separate laws were to be arranged in
chronological order under generic titles, and each, so far as was pos-
sible, identified by date and the name of the prince to whom it owed
its introduction. The work was completed in April a.d. 529, and was
published under the name codex Justinianeus with force of law from
the 1 6th of that month. The older codices and constitutions were at
the same time deprived of all validity, and it was even forbidden to
appeal to any leges cited in the juristic writings, if they had been
incorporated, even in a modified form, in the new code.

The task of dealing in a similar manner with the writings of the
jurists was not commenced till the end of the year a.d. 530, but the
intervening months had been employed in a preparatory labour which
could not be dispensed with, and the purpose of which was a rough
settlement of the points in controversy between the prudentes. This
had been done by a series of fifty constitutions, known as the quin-
quaginta decisiones, which were r^arded as a separate compilation :
* Postea vero, quum vetus jus considerandum recepimus, tam quin-
quaginta decisiones fecimus, quam alias ad commodum propositi
opens pertinentes plurimas constitutiones promulgavimus, quibus
maximus antiquarum rerum articulus emendatus et coartatus est.'
Subject to these, the commission appointed to execute the work,
which consisted (besides Tribonian, who superintended it through-
out) of sixteen persons, possessed the same powers of omission,
alteration, and modification as had been exercised by the compilers
of the Code. They were instructed not to limit themselves to the
five leading jurists who occupy so prominent a position in the ' law
of Citations,' but to select whatever was valuable in the works of all

7a INTRODUCTION.

the * Juris auctores.' The only exception to this Was their admissioii
of Arcadius Charisius and Hermogenian, both of whom lived after
Modestinus, and accordingly had not possessed the jus respondendi.
The total number of jurists upon whom they drew for their materials
was thirty-eight: and Tribonian himself informs us that the com-
mission dealt with two thousand *libri' and three million 'versus'
(lines?), of which they selected about one twentieth part. There
has been no little speculation^ as to the principle which they
followed in arranging their matter in the fifty Books, the number
of which had been determined by Justinian himself; but there seems
no reason to doubt that they obeyed in the main his instructions,
which were to adopt the order which was ready to hand in the Code
and in the Perpetual Edict, though some authorities profess to be
able to identify here also the arrangement under persons, things, and
actions so familiar in the Institutes of Gains and Justinian. Each
book was divided into Titles, headed by a brief indication of their
respective subject-matter, and the excerpts from the writings of the
jurists, of which the Titles consisted, were distinguished by the name
of the jurist and of the specific work from which they were taken.
As to the mode in which the extracts were disposed in the separate
Titles the theory of Bluhme is now generally accepted, according to
which the commissioners were broken up into three committees, to
each of which was assigned the task of reading and making extract^
from a particular portion of the works to be digested. These
accordingly were divided into three groups, the first of which com-
prised Ulpian's commentary on Sabinus, and similar treatises on
topics mainly governed by the civil law: the second, the bulk of
the commentaries on the Perpetual Edict ; and the third, Papinian's
writings and supplementary works: they are termed the Sabinian,
the Edictal, and the Papinian groups respectively, and are estimated
by Bluhme to have contributed to the total result in the proportion
5, 4, and 3. When each of the three committees had completed
its portion of the work they met together, and their contributions
were collocated rather than combined under each Title, the most
considerable being placed first, and the others following after excision
of portions dealing with points already sufficiently treated in the main
contribution*.

The whole work was called Pandectae or Digesta, the latter name

' E. g. Roby, Introdaction to Jastinian's Digest, cbap. iii.
' For a faller explanation see Roby, op. dt., ch. iv.

yUSTINIAJ^S DIGEST AND INSTITUTES. 73

being derived perhaps from Justinian's expression in the ordinance
appointing the commission (^ codex in quinquaginta libros digestus ')»
or more probably from a work of Salvius Julianus which bore the
same title. It was published on Dec. 19th, 533, with statutory force
from the 30th of the same month, and the use of the juristic writings
from which it was compiled was for the future interdicted ; along with
the Code and the Institutes, it was intended to form the exclusive
authority for the earlier law. Though the names of their authors had
been prefixed to the individual excerpts, Justinian ordained that they
should be taken to be immediately enacted by himself, and to derive
their force from him, not from the reputation of the jurist or from the
emperor who had conferred on him the ius respondendi ; finally, in
order to prevent all controversies in the future, he forbade all com-
mentaries on the Digest, allowing only Greek paraphrases and sum-
mariesof the contents : 'Omnibus similiter interdicimus, ne quis audeat
hominum, qui sunt nunc, aut in posterum erunt, commentarios scri-^
bere harum legum, praeterquam si velit quis in Graecam linguam
haec transferre, quem etiam volumus sola secundum pedem seu Korh
n^da nuncupata uti legum interpretatione, et si quid secundum nomi-
natorum paratitlorum, ut conveniens est, adscribere voluerit usum.
Aliud autem nihil omnino ne tantillum quidem circa ea facere, nee
nirsum dare seditionis et dubitationis,aut infinitae multitudinis legibus
occasionem ' (Justinian in Const. ' dedit nobis,' 21).

With the completion of the Code and the Digest, which between
them exhausted all the sources of Roman law, Justinian's plan was
fully executed. These bulky works, however (as Justinian himself
observes in Inst. Prooem. 3), were ill-suited for the elementary instruc-
tion of students. Accordingly, as the commentaries of Gaius and the
other books which had long formed the curriculum of the schools had
been deprived of all force, and their very study forbidden, or at least
discouraged, it was necessary to bring out a new work in lieu of them.
Upon this there had been engaged, even during the composition of
the Digest, a small committee consisting of Tribonian, Theophilus,
and Dorotheus, the two latter being professors of law at Constanti-
nople and Berytus respectively, and already members of the Digest
commission. The book which they produced was called * Institu-
tions of Justinian,' though in England it is better known as the 'Insti^
tutes;' in form, and to a great extent also in substance, it was founded
on the commentaries of Gaius, but also contained large extracts from
the ' Aurei ' of the same writer, as well as from the * Institutiones ' of
other jurists' (e.g. Ulpian, Marcian, and Florentinus); finally, by apt

74 INTRODUCTION.

references to the Code, it was so * brought up ' to the present date as
to give the student a general conspectus of the rules of private law
then binding.

It will here perhaps not be unprofitable to inquire briefly, from the
point of view of general jurisprudence, what is the field and what the
subject-matter of private as distinguished from public law ; and in
pursuing this inquiry the method and terminology of Savigny seem
preferable to those of the English analytical school of jurists, not only
because the student, if not already familiar with the latter, can easily
become so by reference to standard works \ but also because a con-
sideration of the German arrangement will enable him to understand
more fully the logical completeness and the interconnection of the
parts of the Roman system. Savigny represents jurisprudence as the
science of legal relations, and a legal relation is a relation between
person and person defined and determined by a rule of law : this
determination by a rule of law consisting in the assignment of a
sphere or province to the individual will, in which it is supreme and
independent of every other will. Private law then will be the aggre-
gate of those positive rules which define and determine the relations
between men in their private capacity, and its subject-matter will be
fully discovered by ascertaining the possible kinds of legal relations.
This is done by reverting to the effect of a. rule of law on the relation
between man and man ; that is to say, by considering the objects on
which the human will can operate. These are, in brief, one's own
person, and the external world ; the latter again being divided into
reasonable and imreasonable, or persons and things.

As regards one's own person, our attention is at once directed to
the so-called primordial rights, or rights of personal inviolability in
respect of freedom, reputation, and so forth. These, however, apart
and by themselves, Savigny does not condder a proper subject of
law. He admits that a man ought to have the sole control of
his own person and powers, but the right to such control does not
fall within the ken of the law except as the basis of rights and re-
lations which belong to other parts of the code— which, that is
to say, ought not to be regarded simply as developments of this per-
sonal inviolability, from which their content is clearly distinguishable
(System i. p. 336-7). * Acquired rights ' are thus the only proper
subject of private law, and these, as has been pointed out, can relate
to either persons or things.

^ Especially Aiistiii*s Lectures, and HoUand*s Jnrispradence.

THE SYSTEM OF PRIVATE LAW. 75

L Over unreasonable portions of the external world, or things,
a person may exercise absolute control. Such absolute control is
called dominion or ownership, and the law relating to it is known as
the law of things (Sachenrecht). Ownership, however, is capable
of many forms and modifications ; the separation of its elements
leads to the conception of servitudes and other rights in re aliena ;
and again, its actual exercise is distinguishable from the right,
whence arises the law relating to Possession. The main elements of
the law of things will thus be Ownership, iura in re aliena, and
Possession.

ii. To the reasonable portion of the external world, or to other
persons, one may stand in either of two quite different relations.
Firstly, one man may be related to another somewhat in the way in
which, as we have seen, he may be related to things. Over a thing
he may exercise complete dominion, in which case it is absolutely
subjected to his will ; over a person he cannot exercise this power,
which implies an entire negation of freedom and personality. But
he may exercise a partial dominion, a dominion which consists with
that other person's freedom, inasmuch as it does not extend to
all his actions, but only to one or some of them. If one man is
absolutely subjected to the will of another, he is, jurally, not a person,
Sut a thing ; but if that other is, jurally, master of only certain of his
actions, and jurally entitled to compel him to this or that act or for-
bearance only, he is, except in respect of this portion of his activity,
still free and a person. We thus get the idea of obligation as distinct
from dominion, and these together form the two parts of what is
caUed the law of property, the relation between them being twofold :
(a) if one person refuses to perform the act which he is bound to
perform in favour of another, the law will condemn him to pay pecu*
niary damages, the obligation being thus transformed into owner-
ship (of money) : (b) the object of the vast majority of obligations is
the acquisition or the transitory enjoyment of dominion. But,
secondly, one man may be related to another as being, along with
him, a member of the organic whole, humanity. In obligation a
person is regarded as an individual atom, standing apart by himself;
here he is regarded as a being incomplete, and finding his complete-
ness in the great interconnection of nature. This is especially
observable in two points: (a) the distinction of the sexes, whose
incompleteness is perfected in marriage : and (b) the hmited duration
of human life ; and here the deficiency is supplied by the perpetua-
tion of the race, which leads us to the idea of the periods of human

76 . INTRODUCTION.

life, infanqr, puberty, manhood, etc., and the connected theme of
education, with the control of one person by another which this im-
plies. These are grouped together under the idea of parental power,
with which is intimately connected the notion of kinship. Marnage,
parental power and kinship form together a department of the pri-
vate code which we may call family law.

We can thus picture to ourselves three concentric circles, within
which the human will can exercise its supremacy : (i) The original
self, the so-called rights to which are not, according to Savigny, pro-
perly subjects of jurisprudence, (ii) The self expanded in the family ;
the legal relations comprised under this belonged to family law.
(iii) The external world apart from the family; the rights which
arise from the relations to this of the individual will belong to
property law, in its two departments, law of things, and law of
obligations. Though however the field of private law has thus been
mapped out into three great departments, family law, law of things,
and law of obligations, with their three great corresponding classes of
rights, these can be thus sharply separated only in abstraction, and a
further development is accordingly desirable in two directions.
Firstly, the rights and duties which arise from many legal relations
seem to belong, for some reasons, to family law, for others to the law
of property ; that is to say, there are some forms of ownership and of
obligation which cannot exist apart from the family, and which in
fact are of supreme importance in investing the family with a jural
character. In the Roman law, for instance, the institutions of dos,
donatio propter nuptias, peculium, patronatus, and the contractual
relations enforced by the * actiones adjectitiae qualitatis * are of this
character. Legal relations of this kind may with convenience be
classed by themselves under the head of applied (as distinct from
pure) family law. Secondly, the relation of the law of inheritance or
succession to the classification so far suggested is by no means clear.
If, however, we ask what is comprised in the idea of an inheritance,
the reply must be, the relations of the deceased person in the depart-
ments of ownership and obligation, or, as the Romans significantly
expressed it, his universitas iuris ; his successor takes his property,
and has to pay his debts. The law of succession is thus a division of
the law of property, but its importance in all legal systems forbids
our making it a merely subordinate division. Rather, we should
divide the latter into simultaneous and successive property law ; the
former comprising the law of things and the law of obligations, the
latter the law of inheritance.

PRIVATE LAW AS TREATED IN THE INSTITUTES. 77

The field of private law then comprises five great depart-
ments : —

i. Pure family law, including marriage, parental power, kinship, and
the relation of guardian and ward.

IL Apphed family law.

iii. The law of things, under its three main heads of ownership,
possession, and iura in re aliena.

iv. The law of obligations.

V. The law of inheritance.

It must not be supposed that this is the classification of the Roman
lawyers ; it is one which Savigny arrives at by an a priori method,
and, so &r as we know, there was not one among the prudentes who
in his systematic writings arranged his subject-matter upon this prin-*
ciple. The reason why the outhnes of Savigny's system have been
so fully considered is, partly, to suggest to the reader an alternative
classification to that of the analytical school, partly to show how
complete the Institutes of Justinian, and their model the Institutes of
Gains, are in their material if not in their formal treatment of private
law. Marriage, parental power, kinship, and guardianship are treated
with great fulness in Book i. Applied family law forms np compact,
independent part of the work, but is found, to some extent, distributed
among the other departments. Thus, though dos is not explicitly
treated, donatio propter nuptias is discussed as one of the forms of
gift in Book ii. Title 7, The capacity of a filiusfamilias (a) to own
property independently of his pater is noticed in Book ii. Titles 9. 11,
and 12 ; (p) to bind his pater by his contracts in Book iv. Title 7 ;
his position in respect of delict is the subject of Title 8 in the same
book; the relation of patron and freedman, though only with reference
to the former's rights of succession to the latter, is treated in Book iii.
Title 7 ; the effect of adoption on the property and debts of th^
adopted in Book iii. Title 10. Ownership and jura in re aliena are
comprised in Book ii. Titles i to 9 ; possession is touched upon in*
cidentally only, in connection with usucapion (Book ii. Titles 6) and
interdicts (Book iv. Tide 15), Obligations occupy Book iii. Title 13
to Book iv. Title 5; and inheritance, testamentary and intestate, with
the cognate topics of legacy and fideicommissum, is the subject of
Book ii. Title 10 to Book iii. Title 9. The consideration of thQ
arrangement adopted by Justinian himself after Gaius is reserved for
the introductions to the separate books, in which too the reader'q
attention will be called to the chief particulars in which the law of
Justinian had advanced upon that of Gaius, or in which the rul^s

78 INTRODUCTION.

stated by the latter had become obsolete, and thus a mere matter of
antiquarian learning, in the age of the former.

The Institutes were published on Nov. 21, a-d. 533, with statutory
force, along with the Digest, from Dec. 30th of the same year. At
the same time Justinian iixed the system of study to be in future
followed in the public schools of law. The course was to occupy five
years. The first was to be devoted to the Institutes and the first
four books (irpwra) of the Digest ; the second, to the parts of the
latter relating to judicia and res creditae (Books 5-19), and also to
certain portions of later books dealing with the proprietary relations
of husband and wife, guardian and ward, and testaments and legacies.
In the third year Books 20-22 of the Digest were to be studied, and
also certain portions to be gone over again which had been already
read in the preceding year. These were to be followed, in the
fourth year, by the parts of Books 20-36 which had not already
engaged the student's attention. The subjects prescribed for the
last year of the course were Books 37-50 of the Digest, and the
Code; these were read privately, so that the subject-matter of
the professorial lectures, which spread themselves over the first
four years, were the Institutes and the first thirty-six books of the
Digest.

Justinian's design had been to embrace in his three authoritative
works every jot and tittle of positive law. It was transparent, however,
as things stood at the end of a.d. 533, that this object had not been
fully attained. The Digest and the Institutes, from the point of view
of the legal reformer of that epoch, left little to be desired ; but it
was at once perceived that the Code of a.d. 529 was far from com-
plete ; the great majority of Justinian's own constitutions had been
issued subsequently to its promulgation, and Tribonian, who had not
been president, but merely an ordinary member of the commission
which had compiled it, was naturally not backward in calling his
master's attention to this imperfection. Justinian, therefore, in a.d»
534, appointed a new commission, consisting of Tribonian, as presi*
dent, and four others, to revise the Code of a.d. 529. Within a few
months the latter, and also the constitutions issued after its enact-
ment, were deprived of all authority, and withdrawn from circulation,
their place being taken by a new Code, known as the * codex repetitae
praelectionis,' in which were incorporated Justinian's own constitu-
tions, as well as many others which the earlier code had not con-
tained : some again which had stood in the latter were now omitted^
and there were numerous alterations and interpolations, Tribonian

LEGAL EDUCATION— THE REVISED CODE. 79

sparing no pains to make the revision as complete as possible. The
codex repetitae praelectionis was promulgated on Nov. 16, 534, with
statutory force from the ensuing 29th of December. It consisted of
twelve books, and in arrangement followed very closely the order of
the Digest.

The adversaries of codification have made great capital out of an
error into which its advocates have sometimes fallen, and which con-
sists in supposing that a good Code dispenses with the necessity of
any further legislation ; they have even accused Justinian of believing
that in his three great bodies of law was summed up the perfection
of human wisdom, and that they would suffice, without addition or
alteration, to determine for all time the rights and duties of his sub-
jects. It is quite certain that Justinian never believed anything of the
kind. His main purpose had been to set the law upon a solid foun-
dation, and to cast it in a form which his successors would not lightly
venture to alter ; by the completeness of his work he hoped to endow
his subjects with the inestimable blessing of a legal system pruned of
all relics of antiquity, adequate in substance, and so judiciously ar-
ranged as. to reduce the necessity of future change to a minimum.
But within five years to have entirely recast a large portion of his own
work might well arouse the suspicion, that the law had lost all its old
stability; that the legislature had become too active ; that as the first
Code had been thrust aside to make room for a second, so the second
would soon be swept away in favour of a third, and that in the confu-
sion which such constant change could not fail to produce the many-
sided security which all law is intended to guarantee would cease to
exist In his publication of the codex repetitae praelectionis Justinian
deemed it necessary to deprecate all fear of such a tendency. He
expressly recognised the probability, if not the necessity, of subse*
quent change, and enacted that constitutions issued after the pub-
lication of the Code should be formed into a distinct collection,
under the title of ' novellae constitutiones : ' ' Si quid in posterum
melius inveniatur et ad constitutionem necessario sit redigendum,
hoc a nobis et constituatur, et in aliam congregationem referatur,
quae novellarum nomine constitutionum sigm'ficetur ' (Just in Cod.
cordi nobis, § 4). The first of Justinian's Novels was enacted very
shortly after the publication of the Code ; their total number was at
least 165, but they were never authoritatively collected and published
in a connected form by their author. Though most of them relate
to administrative business and ecclesiastical matters, there are some
by which individual institutions of private law were entirely re-

8o INTRODUCTION.

modelled; the most important of these will be noticed in the
commentary below.

The subsequent history of the Roman law in the West and East,
the labour which the glossators and the modern civilians have spent
upon its interpretation, and the acumen with which, especially in
Germany, they have adapted it to modern social conditions, is too
large a subject to be here entered into ; all that can be done is very
briefly to explain the form in which the Justinian legislation at
present exists in the countries where it still possesses the force of
law. Since Dionysius Gothofredus, in 1582, published it in its en-
tirety with the name * Corpus iuris civilis,' this has been regarded as
its proper technical title^ especially in contradistinction to the * Cor-
pus iuris Canonici,* or Canon law. As positive law, Justinian's three
great compilations, the Institutes, the Digest, and the Code (along
with the Novels, their natural appendix), form a system apart by
itself, and as such they were viewed by the glossators, who divided
them into five volumes, each distinguished by a separate name. The
first three volumes comprised the Digest, and were known re-
spectively as Digestum vetus, infortiatum, and novunu In the
Digestum vetus was contained the Digest up to Book 24, Title 2 \ it
thus ended with the title * de divortiis et repudiis.' The * infortiatum *
began with the third title of Book 24, and ended with Book 38.
The Digestum novum contained the remaining books (39-50) of the
Digest of Justinian. The fourth volume of the glossators' corpus
iuris comprised the Code, with the exception of Books 10-12, which
were not discovered till later, and was entitled * Codex repetitae
praelectionis ; ' the fifth (called * volumen parvum * or * volumen *
simply) contained the Institutes, and, eventually, also the three last
books of the Code.

This division into five volumes is still found in the oldest edition?
of the Corpus iuris ; but in the more modem ones, in which it is dis*
carded, the Institutes are placed first, and are followed by the Digest,
the Code, and the Novels in the order named. Many of these
editions also contain certain extraneous fragments which properly do
not belong to the work at all ; among these are thirteen so-called
• edicts ' of Justinian, which are in reality novels of merely local or
particular import ; fifteenconstitutionsof Justin the younger; several
of the younger Tiberius ; one hundred and eighteen novels of Leo ;
one of Zeno ; a series of constitutions of various emperors, under the
common titles imperatoriae constitutiones — canones sanctorum et
venerandorum apostolorum — ^libri feudorum; some constitutions of

LATER HISTORY OF THE ROMAN LAW. 8l

Frederic II ; two ordinances of Henry VII (extravagantes) ; and a
'liber de pace constantiae.' Sometimes also there is to be found an
attempt to reconstruct the Twelve Tables, the Praetorian Edict, and
other celebrated monuments of the older ius civile \

' It will haTe been observed that little or nothing has been said in these pages
of the history of jndidal institutions and civil prooeduxe. This is briefly supplied
in an ezcnisas at the end of the volume.

DOMINI NOSTRI lUSTINIANI PERPETUO AUGUST!

INSTITUTIONUM SIVE ELEMENTORUM

LIBBI QUATTUOB

G 2

INTRODUCTION TO BOOK I.

The first two Titles of this book are merely introductory, and
afford no clue to the principle on which it is intended to distribute
the rules of the private code. Title i is derived in the main from
the ' Institutions ' of Ulpian ; it contains definitions of Justice and
Jurisprudence, determines the scope of the work as a treatise on pri-
vate lawy and draws the distinction between ius naturale, gentium,
and civile, which has been adverted to in the general Introduction
(p. 28 sq., supr.). In the second Title ius naturale is defined after
Ulpian, and then ius civile and ius gentium are distinguished in the
words of Gains, though, as has been pointed out elsewhere, the latter
contrast is the true and important one^ and in other parts of the
work ius gentium and ius naturale are identified The sources
of the positive law of Rome are then specified and each briefly
described.

In the opening words of the third Title we meet with the signi-
ficant statement of the principle upon which the arrangement of the
Institutes is to proceed. That principle, and, accordingly, that
arrangement, is taken literally from Gains, and an exposition of its
meaning will be as important for the work of the jurist as for that of
the prince. * The whole law by which we are governed relates either
to persons, or to things, or to actions.' The division of the Institutes
into these three departments is perfectly clear; the 'ius quod ad
personas pertinet ' occupies Bk. i, Title 3, to the end ; the * ius quod
ad res ' extends from the beginning of Bk. ii. to Bk. iv. Tide 5 ; the
remainder of Bk. iv. ' pertinet ad actiones.' In this particular point
the Gaian distribution is more satisfactory, as it makes the break
between res and actiones at the end of the third commentary, and
devotes the whole of the fourth to the latter subject ; in the Insti-
tutes the formal division of Books tends somewhat to obscure the
material classification of the system. This, however, presents no
obstacle to our comprehension of the system itself; but we are at
once met by difficulties, and by great differences of opinion among
the commentators, when we attempt to discover the meaning of the

86 INTRODUCTION TO BOOK I.

division into persons, things, and actions, and to ascertain its relation
to other arrangements of private law, such as those of Savigny
(General Introduction, p. 74 sq., supr.) or of Austin and his school.

Our only business here is to ascertain what Gaius and Justinian
intended by * ius quod ad personas pertinet.' It seems clear that the
only method by which this can be done is the analytical Austin,
it is to be regretted, set in England the example of pursuing a * high
a priori TOdA* in connection with this matter; the principal form of
which is to adopt, as the leading division of law, that into ' the law of
persons ' and * the law of things,* though in a sense differing consider-
ably from that in which it was understood by the Roman lawyers,
and then either to find fault with the latter for not having meant the
same as the writer, or to imply that they really meant the same
thing, though owing to the weakness of their legal philosophy they
did not adhere with any consistency to their own principle, and
thereby committed most egregious faults of classification. Even if
this be true, it is probably a worse fault still to take a classical
expression (such as ' law of persons,' which to its authors, we may
surely believe, meant something perfectly precise), give it a new
signification without frankly confessing that a liberty has been taken *
and then to irresistibly suggest that the two meanings are the same,
if the authors of the expression really meant anything by it at all.
To an English reader the greatest difficulty, in the effort to under-
stand the arrangement of Gaius and Justinian, arises from Austin's
perversion of the expressions * law of persons ' and ' law of things * for
the purposes of his own system. If he had meant something totally
different from them there would have been no confusion ; but the
very fact that his meaning was somewhat the. same, but at the same
time somewhat different, has surrounded the matter with difficulties,
to remove which an attempt will be made by pursuing a strictly
analytical method, and by attending strictly to the language of the
Roman lawyers themselves, without giving any fancy meaning to
classical expressions whose actual signification can be ascertained
with tolerable certainty.

What did the Romans mean by * persona ' ? It is clear there is
some relation between persona and homo ; for the leading division
of the * ius quod ad personas pertinet ' (i. 3. pr.) is that all men
are either free or slaves. It is equally clear that they did not
regard all men as persons ; it is not said all persons, but all
men^ are either free or slaves. Slaves, in fact, though men in-
tellectually and morally, are 'things' in the eye of the law:

INTRODUCTION TO BOOK A 8?

it is only because their intellectual and moral nature sets them
above the beasts that the law treats the two in some respects in
different ways. It is true that now and then, though very rarely, the
word * persona' is applied to slaves (e.g. Bk. i. 8. pr.) ; but the uni-
form language of l^al authorities is the other way \ and there can be
no doubt that it is only per incuriam that occasionally a writer using
this or other terms (such as caput, status) implying personality
includes the slave as well as free persons within his view. An essen-
tial element in the conception of 'persona' is the capacity of
acquiring or possessing legal rights, and, as will be seen, a slave
could have no l^al rights of any kind whatsoever \ In other words,
a persona is a man regarded as invested with legal rights, or as
capable of acquiring them, so that our attention is drawn away from
the man to the rights, or to the capacity of having them in virtue of
which he is a persona. The aggregate of a man's rights was called
his status ; and accordingly the old civilians defined a persona as
^ homo cum statu suo consideratus.' But^ what is it in virtue of
which a man has legal rights? In modefn times it is usually in
virtue of his submission, absolute or partial, to the sovereign of the
country in which he happens to reside ; a man is usually capable of
acquiring all the rights which are comprised under the private law
of a state within whose limits he is domiciled. This view is essen-
tially modem, and by realizing its strangeness to the Roman mind
we shall have advanced some way towards understanding the ius
.personarum. To a man, as free, the Roman state conceded such
rights only as were based on the ius gentium ; but the civis possessed
iar more rights, even in the field of private law, than the free pere-
grinus ; and many of these he enjoyed not through being a civis but
because he was a member of a definite Roman family. The rights
or status with which a man could be invested within the Roman
state were thus always referable to either freedom, citizenship, or
family connection ; and this way of looking at the matter became so
habitual to the Roman, that of status in general he has little to say ;
he always connects it with one of these three ' momenta,' and classi-
fies a man's capacity of acquiring rights (or ' status ') according as he

' 'Servi nee personam habentes,' Nov. Theod. xvii. i. a ; ol oUcirai &wp6cvmoi
&rrts, Theophilus iii. 1 7, pr. ; ' servos, qui personam legibus non habebaut'
Cassiodori Variar. ▼!. 8.

s < Eigenthnm, Forderongsrechte, Schnlden haben konnen, das heisst lUr das
Piiratzecht, Person sein ' : Sohm, Institntionen, $ ao.

88 INTRODUCTION TO BOOK L

is merely free, is a citizen, or belongs to the agnatic circle of this or
that Roman £unilia.

If then the ' law of persons ' is the law relating to human beings
considered as invested with or as capable of acquiring rights, it is
clearly much the same thing as the law relating to these three
I ' status ' of libertas, civitas, and familia : it is ' the treatment of men
in respect of their position in and in relation to the Roman state,
because, according to that position, their capacity of right, and their
capacity of performing legal acts, will differ ^' But it is obvious that
much that can be said, in respect at any rate of one of these three
topics, has no relation to private law; the latter has to point out
distinctions between persons only so far as they are of importance
to itself, and the distinction between civis and peregrinus is mainly
publici iuris. Nor again does the 'ius quod ad personas pertinet'
follow these differences into all their consequences. It points them
out ; but the effect of them, in the law of property and obligation, is
left to be treated elsewhere, or, as is most commonly the case, is not
treated at all*.

As to the status of liberty the non-free are not 'persons,' and
therefore it might seem that they should be passed over. But some
mention is necessary (Title 3) of the modes in which men can be-
come slaves ; and, again, slaves are capable of becoming ' persons '
by liberation, and therefore the ways in which this can take place
are described (Title 5), and some account is given of the grounds on
which manumission is prohibited by positive law (Titles 6 and 7) as
also of restrictions imposed on the powers of masters over their
slaves (Title 8). Moreover, the precise effect of manumission had
depended on the form of the act, the age of the master and the

^ Bocking, lostitutionen, § 28.

* This appears to be the point in which the writers who have been referred to
have gone astray. They would have been correct in defining the * law of Persons '
as * the law of UnequaU ' or 'Abnormal law ' if they had confined it to the mere
deicriptioo of differences between Persons, in virtue of which some were ' Unequal *
or * Abnormal * ; but they have further made it follow up the consequences of mdi
inequality in respect of property, contract, and dispositions generally. Thus, in
the *■ law of Persons,* Austin would not only describe infancy as a fact which
modified a person's capacity of right and disposition, but he would proceed to
enumerate the points of modification : e. g. an in£tuit's incapacity to make a valid
conveyance, give a valid receipt, or bind himself by contract. But, though Gains
and Justinian enumerate, among the differences between Persons, that of sui and
alieni iuris, they speak of the filiusfamilias' proprietary capacity in Bk. ii, and of
the effect of his contracts in Bks. iii. and iv, under the ius quod ad res, or ad
actiones pertinet

INTRODUCTION TO BOOK I. 89

slave, and the character of the latter; freedmen had thus not always
been of the same kind, and means had been provided to enable
them to rise from a lower grade in their class to a higher; but these
distinctions, though referred to by Justinian, were abolished by him
(Title 5), and the law was thereby much simplified, though the
division of freemen into freeborn (ingenui) and freedmen (libertini)
still remained, and had important consequences in the law of
succession, which are detailed in Book iii. Title 7.

The status of civitas, being historically of importance mainly in
relation to public law, is not treated independently under the ius
personarum by either Gaius or Justinian. It would not be difficult
to explain this in the latter, in whose time peregrini were rare, and
the ius civile had been so swallowed up in the ius gentium that the
distinction between citizen and foreigner, in respect of private rights,
was merely microscopic. But in the age of Gkiius peregrini were
plentiful, and the distinctive features of the civil law were still
sufficiently prominent to place them at some disadvantage in respect
of conveyance, contract, and civil procedure; the *ius commercii'
was still a privilege. We thus might have reasonably expected to
find in Gaius the sentence 'rursus liberorum hominum alii cives
sunt, alii peregrini '; but it is not there, and the omission, it must be
allowed, is a grave flaw in the view which we have taken of the * ius
quod ad perspnas pertinet' Still, it is equally to be accounted for
on most other theories of the meaning of the phrase, and perhaps
the best explanation which can be offered is that, as the difference
between civis and peregrinus is merely that the former had, while
the latter had not, the commercium and connubium, the distinction
is a bare one, of 'which little can be said except in the ' ius quod ad
res ' or * ad actiones pertinet,' under the heads of property, contract,
and procedure. It is true that in the time of Gaius there were
certain intermediate classes, dediticii and Latini luniani, which
might have been mentioned or described in this connection; but
Gaius had already spoken of these, though perhaps less logically,
under the head of manumission ; so that to omit the distinction of
civis and peregrinus was excusable, because it would have led to a
repetition and to difficulties of arrangement And it may, lasdy, be
observed that the ius personarum was but little affected by the
praetorian innovations ; it was, in the main, pure ius civile ; and if
we may believe that Gaius' intention was under this head to describe
the classes of persons who, iure civili, possessed a status, the pere-
grini did not form one of these classes, and therefore the bare

90 INTRODUCTION TO BOOK /.

distinction between them and cives did not require notice. ' Tuitione
praetoris* they might possess rights; Mure civili,' however, they
were unimportant.

There remains the status familiae, and the discussion of this
occupies the really greater portion of the first book of the Institutes.
It is introduced in connection with the distinction of persons into
independent (sui iuris) and dependent (alieni iuris) (Title 8). Ex-
cluding the form of dependency found in slavery, which has been
already treated, the only mode in which such subjection still existed
in Justinian's time was the patria potestas (Title 9) ; and the various
ways in which this may originate are described. These are (i)
marriage, in connection with which a tolerably full account is in-
directly given of the grades of consanguinity, apropos to the degrees
within which it is forbidden to marry. As bearing closely on the
law of intestate succession, the same subject is more explicitly
treated in Bk. iiL Title 6. (2) Adoption, in its two forms adro-
gation and adoption sensu stricto (Title 11), and (3) legitimation
(Title 10, § 13). Corresponding to these are described the modes
in which patria potestas may be dissolved, and a person alieni may
become sui iuris (Title 12), most of which may be grouped together
under the three kinds of capitis deminutio, which is described in
Title 16, rather out of its proper place* The guidance and control
which children require in their tender years is naturally provided by
the care of the father ; but to meet the contingency of the latter's
death while a child is still impubes, and especially to protect his
proprietary interests, the Roman law established various forms of
guardianship, to which the reader is introduced by a further dis-
tinction of persons sui iuris into those who have a tutor or
curator, and those who act entirely for themselves (Title 13). The
various forms of guardianship are treated in the succeeding titles,
and the functions of a guardian, together with the limits of their
necessary exercise, are touched on in Title 21. Title 22 relates to
the modes in which guardianship is terminated, and Title 23 to
curators, or persons appointed by the magistrate to manage the
property of various classes of persons — minors over the age of
puberty, lunatics, interdicted prodigals, and others who, from some
mental or bodily infirmity, are incapable of adequately attending to
their own affairs. Title 24 describes the circumstances under which
guardians and curators have to give security for the due administra-
tion of their office, the nature of such security, and the liability
of magistrates who neglect to exact it when they appoint these

INTRODUCTION TO BOOK /• 9t

functionaries- Lastly, in Title 25, it is pointed out that the duties
of guardians and curators are of a public nature, and cannot, as a
general rule, be declined by any one called upon to undertake
them ; certain grounds of excuse however were recognised by law,
and these are enumerated in detail.

The very exhaustive treatment which the status familiae, as con-
trasted with libertas and civitas, obtains in Gaius and the Institutes
of Justinian has led Savigny to regard the * ius quod ad personal
pertinet ' as merely family law, and to maintain that such was the
meaning which those writers themselves attributed to it« He examines
the view that the real subject of their first book is status, though
not exactly in the sense in which we have understood the term;
that is to say, he distinguishes status into natural and civil ; by the
latter he means the three great status to which alone we have given
our attention ; by the former he would express the differences which
exist among persons as subjects of rights and duties on account of
difTerences of age, sex, health, etc. This, of course, is a perversion
of the strict Roman idea of the term status ; and his rejection of this
view is no reason for also rejecting that which we have adopted as
the true one. To Hugo's theory, that the real subject of the * ius
quod ad personas pertinet ' is * capacity of right,' or the three charac-
ters which correspond to the three forms of capitis deminutio (which
coincides in the main with our own exposition) Savigny is more
favourable, but he finds himself unable to accept it because it does
not account for the facts, and therefore lacks the very essence of a
tenable explanation : his main objections being that tutela has no
relation to * capacity of right ' (Rechtsf ahigkeit) but only to * capacity
for l^al disposition ' (Handlungsfahigkeit), and the omission of the
important distinction between cives and peregrini, upon which some«
thing has been already said. If, says Savigny, we look more closely
into the actual contents of the first book of the Institutes, we find
that it corresponds very nearly to what he calls family law. It treats,
in point of fact, of marriage, patria potestas, slavery, patronatus,
guardianship (and, in Gaius, of manus and mancipium). On the
other hand, the division into cives, Latini, and peregrini, important
as it is in relation to capacity of right, is not to be found, because it
belongs, in its real nature, to public law. The most serious ob-
jection, in Savigny's opinion, which can be urged against his own
view, is the omission (in Gaius) of kinship, but this he does not
consider fatal. It is remarkable that he did not see how slender
was the coincidence between family law, as he conceived it, and the

g2 INTRODUCTION TO BOOK /.

' ius quod ad personas pertinet ' of Gaius and Justinian. The former
is in some ways of larger extent than the latter ; thus it comprises
the whole of the relations between husband and wife, and parent
and child, though these belong to the latter only so far as they
relate to patria potestas, and also the rules in respect of patronatus
and colonatus, which find no place in the Mus quod ad personas
pertinet ' whatsoever. In some points, on the other hand, its con-
tent is less. The classification of * persons ' in Gaius and Justinian
is based upon two great divisions, one of which is iuris gentium — ail
men are either free or slaves — while the other — all free men are
either ingenui or libertini — is iuris civilis ; the first of these, promi-
nent as it is in Gaius and Justinian, has nothing to do with family
law, because the relation between master and slave is one which
belongs properly to the 'law of things,' and which, as has been
pointed out, is touched upon in the first book only by reason of the
capacity of the slave, as distinct from other * res,' of becoming a
* persona ' by manumission.

Perhaps one reason why there has been so much dispute as to
the real signification of this division of law into personae, res, and
actiones, is the supposition that it was a classification of great an-
tiquity among the Romans themselves, a classification which they
regarded as fundamental and not lightly to be departed from, and
by understanding which therefore we shall obtain a deeper insight
into their national legal habit, and comprehend more fully the lead-
ing distinctions of their system, and the interconnection of its parts.
It may be true, as some authorities maintain ^, that the arrangement
was traditional among the Roman lawyers, and inherited from the
old pontifical jurisprudence : but Sir H. Maine ' is probably right in
observing that there is no reason for supposing that they set any
extraordinary value upon it. It was confined, he says, to their in-
stitutional treatises, or primers of law, the educational manuals
placed in the hands of their beginners. We may add that Gaius*
other well-known work, the *res quotidianae,' was composed on
another plan, and that the order followed in the Institutes of Floren-
tinus, who wrote after Gaius, was also quite different. The Twelve
Tables again, and the Praetorian Edict as consolidated by Salvius
Julianus, have no trace of the Gaian classification ; the Gregorian

^ £. g. Karlowa, Rom. Rechtsgeichichte, 1. p. 725.

* ' Ancient Ideas as to the Arrangement of Codes ' in Early Law and Custom ,
p. 3^7-

INTRODUCTION TO BOOK I. 93

and Hermogenian codes were arranged upon a different principle \
so was the code of Theodosius II ; so are the two larger works of
Justinian himself. Upon any view, we cannot suppose that by the
CMfdinary Roman jurist the division was regarded as much more
important than other current contrasts which Savigny instances,
such, as those of vi, clam, and precario, the three forms of domestic
dependence, potestas, manus, and mancipium, the three capitis
deminutiones, and the three classes of cives, Latini, and peregrini.
If there was any traditional view among the Romans as to the true
mode of dassiiying their legal rules, Sir H. Maine has shown, in the
chapter referred to, that it was probably the view which from the
force of circumstances has prevailed in nearly every indigenous
system of law under primitive conditions, and which assigns the first
place in the code to judicature and rules of procedure, in the inter-
stices of which the substantive law has in early times the appearance
of being gradually secreted. The material law tends to become
distributed into 'heads of dispute' in an order which seems to
depend on their relative importance when it was finally determined,
and in which, in more celebrated codes than one, a prominent place
is given, in particular, to deposits and thefts.

In the forgoing remarks it has been assumed that Gains and
Justinian did actually intend to sketch in outline the main principles
of the private law of Rome under the three heads of persons, things,
and actions. Another view is that the division is a subjective one :
that its true meaning is that one may regard any given rule of law
at pleasure from any of three different points of view : either from
that of persons as invested with rights : from that of things as their
objects : or firom that of the remedy by which, if infringed, the
right is vindicated ^ This explanation of Gains' celebrated dictum
seems to have originated with Francois Duarenus, who wrote about
the middle of the sixteenth century * : but however attractive it may
aiq>ear at first sight, it will not bear examination. Putting aside the

^ See e.g. Kontze, Cnrsus des Rom. Rechts, % 362.

' ' Haec verba (omne jns &c.) sic intellexenmt [quidam nostri temporis jaris
professores] quasi nulla sit aptior nee commodior iuris tractandi docendiqne ratio,
qoam si de his tribos separatim dissenitnn Vemm longe aliter sensisse Gaium non
dhibito: nempe nnllam partem iuris esse, nullum contractum, nullum negotium,
oalUun actionem, nullum indicium, in quo tractando hi loci simul non incurrant,
vt e. g. in tractatn de sdpulationibus oritur imprimis quaestio de personis, quae
st^>alatioDem contiahere possunt : . . . de rebus quaeritur, sitne res sacra . . . de
^dione quae ex contractu nascitur, sitae bonae fidei ' : Duarenus, disput. anniv.
I. c. 55, cited in Bocking, Institutionen, % a8, note 2.

94 INTRODUCTION TO BOOK L

objection that it credits Gaius with a refined analytical faculty
of which little trace appears in his other writings, and which is more
characteristic of modem works on abstract jurisprudence, this theory
is sufficiently disproved by the facts obviously revealed in the books
before us. As a matter of fact, Gaius does divide the law into three
distinct heads or chapters. ' Prius videamus de personis ' be says
(i. 8 : Inst. i. 3. pr.) : then, having exhausted the topic of persons,
'modo videamus de rebus' (ii. 1: Inst ii. i. pr.): and finally
'superest ut de actionibus loquamur' (iv, i : Inst. iv. 6. pr.) To
understand these phrases as meaning *let us look at the law first
from the point of view of persons ' and so on requires the possession
of an ex^etical power apparently rare among modern exponents
of the Roman Law \

Between the private law of Rome as stated by Gaius, and as stated
by Justinian, there is far more difference in the matter of personae
and actiones than in the intermediate department, the ' ius quod ad
res pertinet,' except perhaps in such part of the latter as relates to
inheritance or succession. The most important points of change
in the subject now under our immediate consideration are briefly as
follows : (i) The threefold division of hbertini into cives, Latini, and
dediticii, which was important when Gaius wrote, was practically
obsolete in the time of Justinian, who formally abolished it; tliis
necessitated a change in the law of manumission, which was greatly
simplified, the statutes which had introduced these distinctions being
to that extent repealed, as also was the lex Fufia Caninia, limiting
the number of slaves who could be manumitted by testament;
(2) of persons 'alieno iuri subiectae,' exclusive of slaves, there had
in Gaius' time been three classes, viz, those in paternal power, those
in manu, and those in mancipio. In the Institutes patria potestas
is still a living reality, but manus and mancipium have become
obsolete ; hence a second simplification, the modes in which manus
could arise, and some of the purposes for which it had been
employed, being a somewhat complicated and difficult branch of

^ Recently Dnarenus* interpretatioo has been defended in a monograph by Dr.
W. P. Emerton (London, 1888), who relies principally npon Gains* nse of 'ver
rather than <aat* in drawmg the distinction. Bat the writer has authority for
saying that even In Cicero the nsage of vel and aut is not so precise as Dr. Emerton
assumes it to be in a much later writer : and it is possible that Gains deUberatdy
preferred the less dogmatic disjunctive becaufe he felt that the division of the whole-
law into three masses could not possibly be so clean cut as might have been
inferred if he had said aut ... aut .. . aut.

INTRODUCTION TO BOOK I. 95

^^* (3) ^^ Justinian legitimation of children not under patria
•potestas at birth is definitely treated as one of the modes in which
this power may originate ; in Gaius' time this occurred only by the
iact of a Latinus acquiring the civitas, and by his children bom
before this event being subjected to his potestas ; but in the later
period there were no Latini ; and accordingly the long discussion in
Gaius (i. 65-96) * de statu liberorum,' and on the modes in which a
Latin could become a civis, has no counterpart in Justinian except
the paragraph on legitimation in i. 10. 13; (4) with regard to
adoption sensu stricto, Justinian completely altered its form, and also
its effect unless the adopting person was a natural ascendant ; with
r^rd to 'adrogation the form had been changed between the two
writers, it being now effected *principali rescripto,' not 'populi
auctoritate,' as in the time of Gaius ; but no other change of any
great importance had been made in this branch of law. (5) Justinian
entirely changed the mode of emancipation (i. 12. 6.) by substituting
for the old fictitious sale a mere declaration by the parent before a
magistrate. (6) In the department of guardianship the 'perpetua
mub'erum tutela,' with which, though still existing in his day, Gaius
(i. 190) had expressed his dissatisfaction, had altogether disappeared
long before the compilation of the Corpus luris. The expression
'fiduciaria tutela' has also changed its signification (see notes on
Title 19), and the mode of magisterial appointment, in default of a
testamentary or agnatic guardian, is different from what it was in the
time of the earlier writer. On the subject of curators Justinian is
far fuller than the latter, and to his last two Titles (de excusationibus
— de suspectis tutoribus et curatoribus) there is no corresponding
matter in Gaius at all. This is probably to be explained by the
fact that the conception of tutela had changed between the two
writers, or at any rate had in the later period come to be regarded
far more as a 'publicum munus,' fi'om which exemption could be
claimed only on very sufficient grounds, than in the age even of -the
Antonines.

IN NOMINE DOMINI NOSTRI lESU CHRISTI

IMPERATOR CAESAR FLAVIUS lUSTINIANUS ALAMANNICUS

GOTHICUS FRANCICUS GERMANICUS ANTICUS ALAN-

ICUS VANDALICUS AFRICANUS PIUS FELIX

INCLITUS VICTOR AC TRIUMPHATOR

SEMPER AUGUSTUS CUPIDAE

LEGUM lUVENTUTI.

Imperatoriam maiestatem .non solum armis decoratam,
sed etiam l^ibus oportet esse armatam, ut utrumque tempus
et bellorum et pacis recte possit gubemari et princeps
Romanus victor exi3tat non solum in hostilibus proeliis, sed
etiam per legitimos tramites calumniantium iniquitates ex-
pellens, et fiat tarn iuris religiosissimus quam victis hostibus
triumphator.

Quorum utramque viam cum summis vigiliis et summa i
providentia adnuente deo perfecimus. et bellicos quidem
sudores nostros barbaricae gentes sub iuga. nostra deductae
cognoscunt et tarn Africa quam aliae innumerosae provinciae
post tanta temporum spatia nostris victoriis a caelesti numine
praestitis iterum dicioni Romanae nostroque additae imperio
protestantur. omnes vero populi legibus iam a nobis vel
promulgatis vel compositis reguntur. £t cum sacratissimas 2
constitutiones antea confusas in luculentam ereximus con-
sonantiam, tunc nostram extendimus curam et ad immensa
prudentiae veteris volumina, et opus desperatum quasi per
medium profundum euntes caelesti favore iam adimplevimus.
Cumque hoc deo propitio peractum est, Triboniano viro 8
magnifico magistro et exquaestore sacri palatii nostri nee
non Theophilo et Dorotheo viris illustribus antecessoribus,
quorum omnium sollertiam et legum sdentiam et circa nostras
iussiones fidem iam ex multis rerum argumentis accepimus,
convocatis specialiter mandavimus, ut nostra auctoritate

H

98 PROOEMIUM.

nostrisque suasionibus componant institutiones : ut liceat
vobis prima legum cunabula non ab antiquis fabulis discere,
sed ab imperial! splendore appetere et tarn aures quam
animae vestrae nihil inutile nihilque perperam positum, sed
quod in ipsis rerum optinet argumentis accipiant : et quod in
priore tempore vix post quadriennlum prioribus contingebat,
ut tunc constitutiones imperatorias legerent, hoc vos a
primordio ingrediamini digni tanto bonore tantaque reperti
felicitate, ut et initium vobis et finis l^^m eruditionis a voce

4 principali procedat. Igitur post libros quinquaginta diges-
torum seu pandectarum, in quos omne ius antiquum coUatum
est (quos per eundem virum excelsum Tribonianum nee non
ceteros viros illustres et facundissimos confecimus), in hos
quattuor libros easdem institutiones partiri iussimus, ut sint

5 totius legitimae scientiae prima elementa. Quibus breviter
expositum est et quod antea optinebat et quod postea desue-
tudine inumbratum ab imperiali remedio illuminatum est.

6 Quas ex omnibus antiquorum institutionibus et praecipue ex
commentariis Gaii nostri tarn institutionum quam rerum
cottidianarum aliisque multis commentariis coitipositas cum
tres praedicti viri prudentes nobis optulerunt, et legimus et
cognovimus et plenissimum nostrarum constitutionum robur
eis accommodavimus.

7 Summa itaque ope et alacri studio has leges nostras
accipite et vosmet ipsos sic eruditos ostendite, ut spes vos
pulcherrima foveat toto legitimo opere perfecto posse etiam
nostram rem publicam in partibus eius vobis credendis
gubernare.

Data undecimo kalendas Decembres Constantinopoli do-
mino nostro lustiniano perpetuo Augusto tertium consule.

DOMINI NOSTRI lUSTINIANI PERPETUO AUGUSTI

INSTITUTIONUM SIVE ELEMENTORUM

COMPOSITORUM PER TRIBONIANUM VIRUM EXCELSUM IURIS-.
QUE DOCTISSIMUM MAGISTRUM ET EXQUAESTORE SACRI
PALATII ET THEOPHILUM VIRUM MAGNIFICUM lU-
RIS PERITUM ET ANTECESSOREM HUIUS ALMAE
URBIS ET DOROTHEUM VIRUM MAGNIFI-
CUM QUAESTORIUM lURIS PERITUM ET
ANTECESSOREM BERYTENSIUM
INCLITAE CIVITATIS

• LIBER PRIMUS.
I.

DE lUSTITIA ET lURE.

lUSTlTlA est constans et perpetua voluntas ius suum cuique 1
tribuens. Juris prudentia est divinarum atque humanarum
rerum notitia, iusti atque iniusti scientia.

His generaliter cognitis et incipientibus nobis exponere iura 2
populi Romani ita maxime videntur posse tradi commo-
dissime, si primo levi ac simplici, post deinde diligentissima
atque exactissima interpretatione singula tradantur. alioquin
si statim ab initio rudem adhuc et infirmum animum studiosi
multitudine ac varietate rerum oneraverimus, duorum alterum
aut desertorem studiorum efficiemus aut cum magno labore

Tit. L On these definitions of justice and jurisprudence see General
Introduction, p. 59, supr. The first is as old as Simonides {rh 6<l>«i\6fjifva
iKourr^ earodMyai dUaiSv cWi, cited in Plato, Rep. i.) : for dose parallels
cL Cic de Fin. v. 23, de Off. i. 2, iii. 2.

H a

lOO INSTITUTIONUM LIBRI QUATTUOR. [Lib. I.

eius, saepe etiam cum diffidentia, quae plerumque iuvenes
avertit, serius ad id perducemus, ad quod leniore via ductus
sine magno labore et sine ulla difiidentia maturius perduci
potuisset.
3 luris praecepta sunt haec: honeste vivere, alterum non

( 8. As a term of Roman law, ius has various significations, viz..(i.)
objectively, law ; and this with several shades of meaning : (a) the whole
body of law, or large divisions of it (e. g. ius quo urbs Roma utitur .-
ius civile, gentium, honorarium, publicum, privatum ; {b) single rules
of law (e. g. * iura cqndere ' Bk. L 2. 8, ' ius senatus consult! inducere '
Dig. 38. 4. 3. 2) ; {c) law established or recognised by judicial decision
(e. g. * ius fieri ex sententia iudicis ' Dig. 5. 2. 17. i, * praetor ius red-
dere dicitur, etiam cum inique decemit' Dig. i. i. 11); {d) law as a
subject of study, « jurisprudence (e.g. Dig. i. i. pr. Mus est ars boni et
aequi,' ib. i. 22. i Muri operam daturus, studiosus iuris.' (ii.) Subjec-
tively, a right conferred by ius in sense (i.) : e.g. pr. supr. : so frequently
iura praediorum=servitutes ; or a collection of such rights, e.g. ' succedere
in ius demortui ; ' Bk. ii. 20. 1 1 ' legatarii et fidei commissarii non iuris
successores sunt;' (iii.) the place in which the praetor sat to administer
justice : ' alia significatione ius dicitur locus, in quo ius redditur : quem
locum determinare hoc modo possumus : ubicunque praetor salva maies-
tate imperii sui salvoque maiorum more ius dicere constituit, is locus
recte ius appellatur' Dig. i. i. 11. In this sense, under the formulary
system of procedure, ius was usually employed to denote the couit of the
praetor, as distinguished from the proceedings before the index whom he
appointed to hear and decide the case, which were called iudicium : e.g.
the common expressions in ius vocare, in iure cedere, in iure interrogari,
confiteri, etc. ; (iv.) judicial proceedings themselves, e. g. ' dies in quibus
debent iura difFerri' Cod. 3. 12. 73; (v.) = potestas, as in the common
phrases persona sui iuris, persona alieno iuri subjecta, e.g. Bk. i. 8 pr. ;
Gains i. 48. 49 ; so Dig. 36. 2. 14. 3 ' in ius alicuius pervenire ; ' (vi.) »
status : ' emancipari a patre adoptivo, atque ita pristinum ius recuperare '
Dig. I. 7. 33. (vii.) The jural nature of a person or thing, e. g. ' ius actoris
deterius facere' Dig. 2.9. 1. 1, * ius fundi deterius factum ' Dig. 50. 16. 126,
^domum cum iure suo omni legare' Dig. 33. 10. 8 ; (viii.) relation, e.g.
^adoptio non ius sanguinis, sed ius agnationis affert ' Dig. i. 7. 23, 'non-
nunquam ius pro necessitudine accipimuS) veluti est ius cognationis vel
affinitatis' Dig. i. I. 12.

In the expression < iuris praecepta,' ius seems hardly to bear any of
these meanings, for the precept 'honeste vivere' is rather an ethical
principle than a rule of positive law : at least men often practise what
cannot be termed an honest calling without bringing themselves within
reach of the law. Perhaps it is better to regard the three iuris praecepta
not as legal rules themselves, but as the basis of a classification of legal
rules according to the various departments of the whole duty of man, self-
regarding and extra-regarding (Savigny, System i. 409). It may be, how-

Tit. 1.] DE lUSTITIA ET JURE. lOl

laedere, suum cuique tribuere, Huius studii duae sunt 4
positiones, publicum et privatum, publicum ius est, quod ad
statum rei Romanae spectat, privatum, quod ad singulorum
utilitatem pertinet. dicendum est igitur de iure privato, quod
est tripertitum : collectum est enim ex naturalibus praeceptis
aut gentium aut civilibus.

ever, tbat Ulpian, from whom pr. and f f I and 3 of this Title are
taken, and in whose 'Regolae,' Bk. i, they stand in dose connection,
meant $ 3 to be an expansion or explanation of pr. ; by enouncing, as
the first precept of the law, a rule relating to oneself and not to other
persons, he intended to say, that although justice is what he defines it
to be in pr., it is not yet enough to injure no one, and to give every man
his due, in order to save oneself from collision with the law : the law
also punishes any unworthy conduct by which one's own personality is
dcgrzidiedL

§ 4. Public law ' in sacris, in sacerdotibus, in magistratibus consistit '
Dig. I. I. I. 2. In the Roman view it comprised two parts: (1) constitu*
tional law in its widest sense, Le. the law which determines in whom the
sovereign power shall reside, how it shall be exercised, and to what
checks the persons among whom it may be distributed shall be subject.
It thus embraces all administrative law, which indeed under the later
Empire formed its largest portion ; see the accoont of Theodosius' Code
in the General Introduction, p. 68 supr. Another important portion of
it was the ius sacrum, even after Theodosius II had made Christianity the
national religion. (2) Criminal law : privata delicta (torts) were distin-
guished from publica delicta or crimes : 'publica crimina, quorum delatio
omnibus conceditur ' Cod. 9. 9. 30. pr., see Bk. iv. 18. i. inf.

It is of course impossible to draw a periectly hard and fast line between
public and private law, and this was for historical reasons particularly
true of Rome (General Introd. p. 16 sq., supr.) ; many institutions are
from one point of view regarded as publici, from another as privati iuris ;
thus tutela, though discussed in the Institutes, was a munus publicum,
and so in Dig. 28. i. 3, it is said 'testamenti factio publici iuris est.'
Civil procedure, from the prominence with which it is treated in Bk. iv,
and also by Gaius, was apparently considered a part of private law ; but
by many this is regarded as arbitrary and unjustifiable, on the ground
that rules of procedure are properly rules determining how the powers of
certain officers (magistrates and judges) shall be exercised.

The division of the whole body of law observed within the limits of any
given state into public and private, though as old as Aristotle (Rhet. i.
13. 3), and adopted by the modem civilians no less than by the Roman
jurists, is severely criticised and rejected by Austin (Jurisprudence^
lect. 44), who would make the so-called public law part of the law of
persons. This is scientifically correct if we take law of persons, as he
does, in a sense very different from that given to it by its originators :

loa INSTITUTIONUM LIBRI QUATTUOR. [Lib. I.

IL

DE lURE NATURALI ET GENTIUM ET CIVILI.

lus naturale est, quod natura omnia animalia docult. nam
ius istud non humani generis proprium est, sed omnium ani-
malium, quae in caelo^ quae in terra, quae in mari nascuntur.
hinc descendit maris atque feminae coniugatio, quam nos
matrimonium appellamus, hinc liberomm procreatio et edu-
catio : videmus etenim cetera ^^uoque animalia istius iuris
1 peritia censeri. Ius autem civile "vel gentium ita dividitur :
omnes populi, qui legibus et moribus reguntur, partim suo
proprio, partim communi omnium hominum iure utuntur:
nam quod qutsque populus ipse sibi ius constituit, id ipsius
proprium civitatis est vocaturque ius civile, quasi ius propriuni
ipsius civitatis : quod vero naturalis ratio inter omnes homines
constituit, id apud omnes populos peraeque custoditur voca-
turque ius gentium, quasi quo iure omnes gentes utuntur. et
populus itaque Romanus partim suo proprio, partim communi
omnium hominum iure utitur. quae singula qualia sunt, suis

but this seems to be just one of those cases in which strict scientific
accuracy may be sacrificed to considerations of convenience.

At the close of this paragraph naturalia praecepta are distinguished
from praecepta gentium and praecepta civilia : so in the next Title ius
naturale is distinguished from both ius gentium and ius civile. This,
however, is (with two exceptions ,Bk. i. 2. 2, ib. 5. pr.) the only passage in
the Institutes in which ius gentium is opposed to ius naturale, and it
leaves no mark on the system : in all other places the two expressions
are used as synonymous, and in Bk. ii. i. 11 they are expressly identified^
' ... iure naturali, quod, sicut diximus, appellatur ius gentium.' The
explanation of the seeming anomaly is that in Tit. i. 4, and Tit. 2. pr.
Justinian is quoting verbatim from the Institutes of Ulpian, who is the
only leading jurist who makes anything of the distinction, while Tit. 2.
pr. is taken from Gaius. For the history and meaning of the terms see
General Introd. p. 28 sq., supr.

Tit. n. The idea of ius naturale as distinct from ius gentium is
derived from notions of a prehistoric epoch in which men were, in
point of social development, hardly distinguishable from other animals.
Savigny (Syst. i. p. 415) attempts to justify Ulpian's attribution of a
jural character to natural instincts by drawing a distinction between the
matter and the form in every legal relation. The matter here is the
sexual relation, or the relation between parent and offspring, the form is
given to it, among men, by positive law ; and what Ulpian ascribes to

Tit. a.] DE lURE NATVRAU, ETC. IP3

lods propoiiemus. Sed lus quidem dvile ex unaquaque'Q
civitate appellatur, veluti Atheniensium : nam si quis velit
Solonis vel Draconis leges appellate ius civile Atheniensium,
non erraverit. sic enim et ius, quo populus Romanus utitur,
ius civile Romanorum appellamus : vel ius Quiritium, quo
Quirites utuntur: Romani enim a Quirino Quirites appel-
lantur. sed quotiens non addimus, cuius sit civitatis, nostrum
ius significamus : sicuti cum poetam dicimus nee addimus
nomen, subauditur apud Graecos egregius Homerus, apud nos
Vergilius. ius autem gentium omni humano generi commune
est. nam usu exigente et humanis necessitatibus gentes
humanae quaedam sibi constituerunt : bella etenim orta sunt
et captivitates secutae et servitutes, quae sunt iuri natural!'
contrariae. iure enim naturali ab initio omnes homines liberi
nascebantur. ex hoc iure gentium et omnes paene contractus
introducti sunt, ut emptio venditio, locatio conductio, societas,
depositum, mutuum et alii innumerabiles.

Constat autem ius nostrum aut ex scripto aut ex non 3
scripto, ut apud Graecos : rO^v v6\tMv ol ^v lyypa(l>oi, ol bi
iypa4>oi, Scriptum ius est lex, plebiscita, senatus consulta,
principum placita, magistratuum edicta, responsa prudentium.

the animal world is not the form (law itself), but the matter of law. But
Savigny admits not only that the threefold division of law is unsuit-
able for purposes of law, but that the twofold division (ius gentium and
naturale being identified) is far the more common, being adopted by
Paulus, Marcian, Florentinus, and Licinius Rufus, as well as by Gains,
and traceable in every department of the system. Thus the conditions
cf marriage rest on either civilis or naturalis ratio, Bk. i. 10. pr. inf. :
there are, even in Ulpian (Dig. i. 7. 17. i), two kinds of relationship,
civilis and naturalis cognatio ; rights both in rem and in personam could
be acquired either civiliter or naturaliter; and Ulpian himself distin-
guishes possession (Dig. 10. 4. 3. 15) and obligation (Dig. 44. 7. 14) into
civil and natural.

§ 2. Slavery is here said to be naturali iuri contraria, and so in Tit. 5.
pr. inf. Justinian (following Ulpian, Inst. 1. 1.) says that by natural law
all men are bom free, slavery having been introduced iure gentium.
Similarly Florentinus says *servitus est constitutio iuris gentium, qua
quis dominio alieno contra naturam subiidtur ' Dig. i. 5. 4. i ; cf. Gains
L 52, Tit. 8. I. inf., and Aristotle, Pol. 1.2 6 ykp v6fios dfioXoyia rt^ eoriV,
(V ^ TO, Kara nSXtfiw Kparovfuva r&y Kparovvrmv tlvai 0aoriy.

§ 8. The terms ius scriptum and non scriptum were, to the Roman
mind, free firom all modem ambiguities as to law written and unwritten

I04 INSTITUTIONUM UBRI QUATTUOR. [Lib. 1.

4 Lex est, quod populus Romanus seaatore magistratu inter-
rogante, veluti consule, constituebat. plebiscitum est, quod
plebs plebeio magistratu interrogante, veluti tribuno, con-
stituebat. plebs autem a populo eo diifert, quo species a
genere: nam appellatione populi universi cives stgnificantur
connumeratis etiam patriciis et senatoribus: plebis autem
appellatione sine patriciis et senatoribus ceteri cives signi-
ficantun sed et plebiscita lege Hortensia lata non minus

5 valere quam l^es coeperunt Senatus consultum est, quod
senatus iubet atque constituit. nam cum auctus est populus
Romanus in eum modum, ut diflkile sit in unum eum con-
vocare legis sanciendae causa, aequum visum est senatum

6 vice populi consul!. Sed et quod principi placuit, legis habet
v^orem, cum l^e regia, quae de imperio eius lata est, populus

(Austin, lect. 29) ; tbey were taken quite literally, the former indicating
law which in its very origin was embodied in writing ; thus, as is said in
this section, the praetor's edict was ius scriptum, even when based, as
it not unfrequently was, on immemoriaT custom.

§ 4. Properly, lex is a statute made in the comitia centuriata, plebis-
citum one made in the comitia tributa : for explanation of these terms see
General Introd. pp. 8, 21 sq., supr. After the lex Hoitensia, however,
plebiscita were frequently called leges, e.g. Dig. 9. 2. i. i (Mex Aquilia
plebiscitum est, quum earn Aquilius tribunus a plebe rogaverit *)• Later
still senatus-consulta were caUed leges (e.g. SC' Macedonianum in Dig.
14. 6. 9.4, and cf. Gains L 85), and finally the term was applied to imperial
constitutions : ' quodcunque imperator statuit, legem esse constat.' The
false view of the relations of populus and plebs which this section gives is
noted by Mr. Poste on Gains i. 3, cf. General Introd. p. 21, supr. The
words ' et senatoribus * were apparently inserted in those of Gains by
Justinian, for the earlier writer must have remembered that plebeians
elected to the senate remained plebeians still, while in the hitter's time the
plebs was probably conceived as a rabble, and the patriciate was a dignity
higher even than that of senator. Cod. 12. 3. 3. pr.

§ 6. For senatus-consulta see General Introd. p. 43 sq., supr.

§ e. For the lex regia see General Introd. p. 45, supr. ; cf. Cic. de
Republ. ii. 13, 17, 18, and 20 : Tacitus, Hist. i. 47, ii. 55, iv. 3, 6.

The general term employed to denote law made by the emperor in
virtue of the lex regia is constitutiones ; he is not said inhere, like the
populus and plebs (Gains i. 3), but decemere, censere, constituere, like
other magistrates ; and in Dig. 50. 16. 120 even prudentes are said Mura
constituere.' At first such ordinances seem to haye been regarded as
differing from the edicta of the old republican magistrates only in their
frequency and in the binding force which they possessed for all other

Tit. a.] DE JURE NATURAU, ETC. 105

ei et in eum omne suum imperium et potestatem concessit
quodcumque igitur imperator per epistulam constituit vel
cc^noscens decrevit vel edicto praecepit, legem esse constat :
haec sunt, quae constitutiones appellantur. plape ex his

public officers ; and it has been already observed that under the first
Emperors the form of legislation by the comitia was retained : that
l^[es were gradually superseded by seniatus-consulta ; and that finally,
about the end of the second century, the princeps cast off the form of
expressing his orders as the orders of the senate, and boldly carried on
the wcx^k of direct legislation in his own name only.

Under this general term ' constitutio ' are comprised many varieties of
enactments, (i) When the emperor laid before the senate a ' projet de
loi,' it was usual for him to introduce it by an oratio (e. g. oratio Per-
tinads, Bk. iL 17. 7. inf. ; cf. Dig. 2. 12. i. 2 ; 2. 15. 8. pr. ; 5. 3. 22);
these orationes were regarded as law apart from the senatus-consulta
themselves, and were cited as such, often in preference to the latter, by
the jurists, and after Constantine an oratio was known as an imperial
ordinance of which notice had been given to the senate. (2) Edicta,
issued by the emperor in virtue of his authority as supreme magistrate.
Gaitts mentions an edict of Trajan in iii. 172, and one of Hadrian in
i- 55- 93 f one of Marcus Aurelius is referred to in Bk. ii. 6. 14 inf.
When the emperor had become the sole legislative power, constitutions
which, as containing a general rule of law, corresponded to the leges and
plebiscita of the Republic, were called edicta or edictales constitutiones ;
they were addressed either to the subjects of the empire at large (ad
populum, ad omnes populos), to the senate, or to an imperial officer, the
praefectus urbi or praetbrio, for promulgation. (3) Mandata, by which
the emperor delegated his jurisdiction to other magistrates (legati, and
the two praefects just mentioned), and which may be regarded as laws
proper only so far as they contained general instructions as to the
exercise of the delegated authority; that they are not enumerated
among the kinds of constitutions by Ulpian (Dig. i. 4. i. i), from whom
this passage of the Institutes is taken, or, in Gaius i. 5, is probably
because the great majority of them related to matters not of private
but of public law. (4) Decreta and rescripta, which up to the time
of Constantine were by far the commonest kinds of constitutio, and
which necessitate a brief notice of the judicial functions exercised by the
princeps.

In the first place he frequently exercised the functions which had under
the Republic been discharged by the praetor: Augustus 'assidue lus
dixit ' Sueton. Octav. 33 ; and these judicial functions were, according
to the usual distinction, partly ordinary, partly extraordinary ; he either
appointed a index to hear and decide the case, or he retained the
cognisance of it to himself, and decided it by a decretum. Secondly,
through his tribunicia potestas he acquired and exercised an important
appellate jurisdiction, in virtue of which he assumed to modify and even

I0<J INSTITUTIONUM UBRI QUATTUOR. [Lib. I.

quaedam sunt personales, quae nee ad exemplum trahuntur,
quoniam non hoc princeps vult : nam quod alicui ob merita
indulsit, vel si cui poenam irrogavit, vel si cui sine exemplo
subvenit, personam non egreditur. aliae autem, cum gene-
reverse the sentence of a judge, exactly as the - republican tribuni plebis
had been entitled to veto the act of other magistrates. Out of this grew
the practice of referring legal points in the first instance to the emperor
by petition, or to be considered by him in private, and not, as had been
usual with the praetor, in the public forum. These matters he sometimes
decided once for all by a decretum ; but far oftener he replied by rescrip-
tum, which was a provisional decision of the legal point at issue, leaving
the facts alleged by the petitioner to be inquired into, and a final
settlement made, by another magistrate or an ordinary index. It also
became usual for magistrates, and especially the provincial praesides,
to refer difficult cases of law, when in doubt, to the emperor for advice,
and the replies to such consultations were also called rescripta. Rescripta
were technically of two kinds : epistolae (e. g. Bk. iii. 20. 4 inf.), inde-
pendent replies to questions referred to the imperial judgment, which
was usually the form employed m answering a magistrate ; and subscrip-
tiones, brief opinions on cases submitted by petition, and written at the
foot of the petition itself, this being the common form in answering
private persons.

The precise authority of these decreta and rescripta has been much
disputed. Savigny (Syst i. pp. 125- 141) contends that their sole binding
force was for the particular case for which they were issued : they might
be citied as authorities for other similar cases, but the judge was under
no strict obligation to apply them in the way in which he was bound to
apply and follow leges proper. If this is true, then lex in Ulpian's words
(< quodcunque eigo imperator vel per epistolam constituit, vel cognoscens
decrevit, vel edicto praecepit legem esse constat ') must have a very dif-
ferent sense from that which it usually bears, and the words in the text
('plane ex his [constitutionibus] quaedam sunt personales, nee ad ex-
emplum trahuntur') are still more against Savigny; for upon his view all
decreta and rescripta are personales consdtutiones, and yet it is quite clear
from the paragraph immediately succeeding (* nam quod alicui ob merita
indulsit,' etc., in this section) that Ulpian did not conceive them as such.
Even stronger arguments against him are to be found in our knowledge
that the Emperor Macrinus (218 a.d.) meditated the repeal of all his
predecessors' rescripta, on the ground that it was intolerable that the
capricious judgments of such tyrants as Commodus and Caracalla should
be regarded as law; and that Arcadius and Honorius, in a.d. 398,
forbade, in future, the application of rescripta, and doubtless of decreta
as well, to cases other than those which they were immediately designed
to determine ; the enactment was made even more stringent by Theo-
dosius and Valentinian. This rule was reversed by Justinian, who
.bears strong evidence against Savigny : ' sciant banc esse legem non

Tiu a.] DE JURE NATURALI, ETC. 1 07

rales sunt, omnes procul dubio tenent. Praetorum quoque?
edicta non modicam iuris optinent auctoritatem. haec etiam
ius honorarium solemus appellare, quod qui honores gerunt»
id est magistratus, auctoritatem huic iuri dederunt. propone*
bant et aediles curules edictum de quibusdam casibus, quod

solum illi causae, pro qua producta est, sed et omnibus similibus • . .
cum et veteris iuris conditores constitutiones, quae ex imperiali decreto
processerunt, legis vim obtinere aperte dilucideque definiant ' Cod. i. 14.
12. pr.

It appears then more probable that decreta and rescripta possessed
the force of general law in reference to later cases resembling those for
whose decision they were originally issued, provided that the intention
of their respective issuers had been that they should enounce a legal
rule, and not merely determine a specific case. Despite the evidence of
St. Augustine (' ut etiam idiotae intelligant, quid specialiter, quid gener-
aliter in quocunque praecepto imperiali sit constitutum ' de doctr. Christ.
iii. 34), the question whether a particular rescript was intended by its
author to be merely personale (e.g. Bk. ii. 19. 6 jn£), or to state a prin-
ciple of law, became a frequent subject of juristic disputation. Such as
were undoubtedly of the latter character were called generalia rescripta
(e.g. Dig. 35. 2. 89. I 'dlvi Severus et Antoninus generaliter rescrip-
serunt Bononio Maximo,' Dig. 11. 4. i. 2 'est etiam generalis epistola
divorum Marci et Commodi '). But rescripts were also called 'generalia'
when it was held that the rule which they contained might be extended
to cases even remotely resembling the one originally decided ; e. g. the
role ignorantia iuris non excusat is derived in its general form by Papinian
from a rescript of Severus and Antoninus, Dig. 22. 6. 9. 5.

From the time of Constantine onward, and in the Eastern Empire, a
particular kind of rescripta acquired the name of ' pragmatic sanctions.'
These are rescripta in answer to petitions, drawn up in a peculiar and
solemn form, and distinguished from other rescripts by being more
highly taxed : 2eno restricted their use to petitions preferred by corpo*
mtions.

In framing constitutions (to whichever of these species they belonged)
the emperor was assisted by a council, called in the later period con-
sistorium (Cod. i. 14. 8), to which the praefecti urbi and praetorio and
the most celebrated jurists belonged, and which gradually assumed the
character of a general council of state ; it was regularly consulted by the
emperor in the exercise of his supreme appellate jurisdiction, and the
chamber in which such consultations were held was as early as M. Aurelius
called auditorium principis. It was mainly in this way that the jurists
acquired their knowledge of the imperial constitutions, of which some of
them (e.g. Papirius Justus and Paulus) even made systematic collections.

§ 7. For the praetor's edict, and its relation to the ius gentium, see
General Introd. p. 31 sq. supr. The place of the edict of the curule aedile
in private law is due to his official control of the markets, streets, etc

I08 INSTITUTIONUM LIBRI QUATTUOR. [Lib. I.

8 edictum iuris honorarii portio est. Responsa pnidentium
sunt sententiae et opiniones eorum, quibus permissum erat
iura condere. nam antiquitus institutum erat, ut essent qui
iura publice interpretarentur, quibus a Caesare ius respon-
dendi datum est, qui iuris consulti appellabantur. quorum
omnium sententiae et opiniones earn auctoritatem tenent, ut
iudici recedere a responso eorum non liceat, ut est con-

9 stitutum. Ex non scripto ius venit, quod usus comprobavit

(General Introduction, p. 22 supr.) The first title of Dig. 21. is 'de
aedilicio edicto,' and out of his jurisdiction in such matters arose certain
actions of Roman law (' actio redhibitoria and actio aesdmatoria sen
quanti minoris,' note on Bk. iii. 23. 3 in£ ; cf. Bk. iv. 9. I inf.) imposing
an obligation of warranty on vendors, at first in market overt, and then
in all sales. Stipulationes aediliciae, analogous to the praetorian sdpula*
tions mentioned in Bk. iii. 18. 3 inf., are spoken of in Dig. 45. i. 5. pr.

§ 8. For the responsa pnidentium see General Introd. p. 55 supr.,
and for the difficulties of this particular passage, p. 57. Theophiius dis-
tinguishes between sententiae and opiniones thus : sententia . . . Janin^"
fioXos arr6Kpia'Uf opinio furh ^ydoutgrfAOv nftoa^pofjuhni aw6icpunf,

§ 9. To the ius non scriptum belongs (besides the mores maiorum, the
national customary law of Rome) the whole of the ius gentium originally,
and subsequenUy such parts of it as did not become scriptum by being
worked into the edict or other legislation.

Mos is to be distinguished from consuetudo (in so far as the latter
term has a jural meaning), for it includes * positive morality ' no less than
rules strictly legal : ' morem esse communem consensum omnium simul
habitantium, qui inveteratus consuetudinem facit ' Servius ad Verg. Aen.
vii. 601, 'morem praecedere, sequi consuetudinem ... perseverantium
consuetudinis . . . cultus moris, quod est consuetudo ' Macrob. Saturn,
iii. 8. It has been stated in the General Introduction (p. 2 supr.) that
originally the Roman law existed only in the form of custom. Legislation,
direct and indirect, was of later introduction, but steadily tended to absorb
customary law. The Twelve Tables were in the main a statutory re-enact-
ment of the customs then recognised as binding : others were taken up
into subsequent statutes, the Edict, and the writings of the iuris auctores,
until in the time of Gains, and still more of course in the period im*
mediately preceding Justinian, there were but few general customs pos-
sessing legal validity as such, though many statutes and quasi-statutory
rules could be traced in their origin to this source. This is the case with
acquisition by conventio in manum (Gains iii. 82) and by adrogation (ib.
and Bk. iii. 10. pr. inf.), and with substitutio pupillaris (Bk. ii. 16 pr. inf.).
The validity of customary law is stated emphatically not only here and
in Bk. iv. 17. pr., but also in the Digest and Code : 'de quibus causis
scriptis legibus non utimur, id custodiri oportet, quod moribus et consue-
tudine inductum est ' Dig. i. 4. 32 pr. * inveterata consuetudo pro lege non

Tiu a.] DE JURE NATURALI, ETC. 109

nam diuturni mores consensu utentium comprobati legem

immerito custoditur' ib., 'quae sunt moris et consuetudinis, in bonae
fidei iudiciis debent venire' Dig. 21. i. 31. 20, ' consuetudinis ususque
longaevi non vHis auctoritas est ' Cod. 8. 52. 2 ; cf. the strong expressions
of Aristotle in PoL ii. 5 6 yap v6fu>9 Itrxyp ovdtfuop t^x^t vp6s r6 ir^iBtirBai^
vXj^f irapk rh Z0os, ib. ill. II KvpUtrtpoi rw Korh ypofifutra v6pLȴ oi jcot^ ra
7Bil curtv.

Few subjects have been so much disputed, and we may perhaps say
misimderstood, by modem jurists, as the nature of customary law, its
validity, and the relation (if the two terms are to be distinguished) between
CQStomary law and custom. That custom ever has any force as positive
law is vehemently denied by Austin ; until it receives the impress of the
judge or legislator, it is only positive morality (Jurisprudence p. ^7)\
when it has received that impress it ceases to be custom and becomes
positive law, though the name * customary law ' for it ,is convenient as
perhaps suggesting the ground on which it has been invested with a legal
sanction (ib. p. 204). The error of this view (which Austin himself admits
runs counter to all the utterances of the Roman jurists) has been shown
by Sir H. Maine (Early History of Institutions, lectures 12 and 13) to have
originated in Austin's habit of basing his generalisations on observations
only of Western communities, in which the engrossing power of direct
legislation had been kept in men's memories by traditions of the Roman
Empire. As to the way in which custom, as law (i. e. before it is em-
bodied in legislation direct x>r indirect), is generated, and how it acquires
its binding force, there have also been great differences of opinion. The
question is really as to the relation between the usage, and the conscious-
ness that that usage is a right one, and one which (legally) ought to be
followed, or as to the relation between the usage and the binding rule, or,
as it is sometimes shortly though unhappily expressed, between custom
and law. The earlier view was that customary law is law generated by
custom, diutumus usus. In this or that relation of life, people follow
a uniform practice, and this practice, in virtue of its uniformity, is called
H custom ; before long it gains so strong a hold upon the mind as to be
followed as law, and in fact to become law, which the Courts (the protec-
tion of security, and attainment of fixity of relations, being part of their
business) will enforce. Custom is thus said to be a source of law, and law
proper, in the history of nearly every nation, to be preceded by custom.

Savigny was the author (Syst. i. p. 34 sq.) of the view, now generally
accepted by German jurists, that custom is not one of the sources of law,
but only its token or external manifestation ; the law itself is grounded
on the common l^^al consciousness of the nation. If the people, as
a people, is conscious of a rule, or thinks that such or such a principle
ought to be followed as law, this principle so asserts itself as to be applied
and developed ; the usage is thus evoked and occasioned by the principle
which the popular mind approves and accepts, instead of being itself the
source of that principle. The consciousness of the rule must precede the
usage or custom, for. it is upon this that the uniformity of action is based :

1 lO INSTITUTIONUM UBRI QUATTUOR. [Lib. r.

10 imitantur. £t non ineleganter in duas species ius civile
distributum videtur. nam origo eius ab institutis duarum
civitatium, Athenarum scilicet ei Lacedaemonis, fluxisse
videtur : in his enim civitatibus ita agi solitum erat, ut Lace-
daemonii quidem magis ea, quae pro legibus observarent,
memoriae mandarent, Athenienses vero ea, quae in legibus
scripta reprehendissent, custodirent.

11 Sed naturalia quidem iura, quae apud omnes gentes
peraeque servantur, divina quadam providentia constituta,

<semper firma atque immutabilia permanent: ea vero, quae
ipsa sibi quaeque civitas constituit, saepe mutari solent vel
tacito consensu populi vel alia postea lege lata.

if the uniformity of action is merely accidental, and not due to common
consciousness of a rule, it is unreasonable and unfit to be law.

The principle thus precedes and generates the usage; but the older
view contains a certain truth, viz. that the principle first acquires practical
validity through the usage of which it is the parent, exactly as ius scriptunt
acquires binding force through publication; and to this extent one can
say with truth, that as a statute comes into existence through publication,
so customary law comes into existence through usage or custom. Savigny
also grants that in some cases the rule is actually begotten of the usage ;
in particular, where the substance of the rule is more or less immaterial,
so long as the rule is there (e. g. fixing of legal periods, forms, etc.). On
the whole subject see Holland's Jurisprudence chap. v.

§ 10. AaK€^ifi6pioi fkh . . . tB^auf etraibfvov, ov \6yois' *ASjpfdioi df . . • A
fAMv xph irparregv fj fiff, irpoarraa<ro¥ dih r&v v6fi»p Josephus c. Apionem ii.,
fiia T&v prfTp&¥, firi ;^p7cr^ai v<$/ioif ryypafftoi^ Plutarch, Lycurgus 1 3. Never-
theless, the Attic writers often eulogise unwritten law, e. g. 2<$X»va v6fMM9^
. • . ^vyypaifHa Koi «B&v r&v dpiarwp cvpcr^v Lucianus, Anach. C. 14.

§ 11. It is clearly said here that a statute may in effect be abrogated by
a contrary custom : cf. ' legibus istis situ atque senio obliteratis ' Gell. ii.
24, Plautus, Trinum. iv. 3. 30. 33, Livy 27. 8, and the strong expression
of Julian in Dig. i. 3. 32. i 'Quare rectissime illud receptum est, ut leges
non solum sufTragio legislatoris, sed etiam tacito consensu omnium per
desuetudinem abrogentur.* The very contrary seems to be maintained
in a passage already cited in part (Cod. 8. 52. 2) ' Consuetudinis usus-
que non vilis auctoritas est, sed non usque adeo suo valitura momento ut
rationem vincat aut legem.' Perhaps the simplest way out of the diffi**
culty is to suppose that the latter passage refers to a statute in which it
is expressly provided that in no case shall it be taken to be repealed by a
contrary custom of later development. Now if approved custom ' legis
vicem sustinet,' such a provision is absurd, and resembles the well-
known rule privilegia ne irroganto in assuming that a sovereign is capable
of being legally bound. The question was submitted to the Emperor

Tit.3.1 DE lURE PERSONARUM, Til

Omne autem ius, quo utimur, vel ad personas pertinet vel 12
ad res vel ad actiones. ac prius de personis videamus. nam
parum est ius nosse, si personae, quarum causa statutum est,
ignorentur.

III.

DE JURE PERSONARUM.

Summa itaque divisio de iure personarum haec est, quod
omnes homines aut liberi sunt aut servi. Et libertas quidem 1
est, ex qua etiam liberi vocantur, naturalis facultas eius quod
cuique facere libet, nisi si quid aut vi aut iure prohibetur.
Servitus autem est constitutio iuris gentium, qua quis dominio 2

Constantine, and he decides it in the passage cited from the Code: a
custom can certainly abrogate a statute, but (he says) there is an excep-
tion to this general rule, if the statute itself contains a provision that no
custom is to be allowed to grow up in future contrary to its tenor ; a pro-
vision addressed to the subject, and forbidding the custom itself, not to
the sovereign, and forbidding the repeal of the statute.

For the permanence and immutability of natural law cf. Cicero de
RepubL iiL 22, Dig. 7. 5. 2. I ; 50. 17. 8. By such passages it is not
meant that it is always binding on the citizen, but that what is 'natural'
once is natural for ever ; for, as Ulpian says, ' ius civile [iuri naturali] non
per omnia servit ' Dig. i. i, 6. pr. Similarly Gains, speaking of the quasi
usufruct mentioned in Bk. ii. 4. 2 infr., remarks that though the authority
of the senate cannot overcome naturalis ratio, its commands are binding ;
Dig. 7. 5- 3- I-

Titb HI. For the division of private law made in pr. see the Introduc-
tion to this Book.

§ 1. Liberty does not require that one should be free to act against
the laws, ' legum quum servi sumus, ut liberi esse possimus ' Cicero pro
Cluentio 53. 146. Cf. Persius, Sat. v. 89 'Liceat, iussit quodcunque vo-
luntas, Excepto si quid Masuri [i. e. Sabinus' work on law] rubrica vetavit,'
Dio Chrysostom, or« 14 o<ra ft^ atrtipiriTM {mo r&if p6fjMv^ fu;df wpofrriraKTaif
6 wtpl TovTtov €X!»9 rrip i^viriav rov frparrtiv &s /3ovX«rac . • . tktvBtpot

§ 2. In respect of capacity of right, slavery is a condition of ab3olute
'rightlessness.' A slave could have no rights against either his master
or any one else ; and, remembering what has been said of the legal mean-
ing of 'person' in the Introduction to this Book, it follows that a slave
was not a 'person ' at all : he had no caput. Tit. 16. 4 inf. The Roman
lawyers looked upon him as a 'res,' and applied to him, as an object
of property, the same rules which they laid down as to domestic animals ;
so £ar as there is any difference of treatment it is due to the slave's pos-
session of reason, so that {a) he is able to increase his master's means by
bis intellectual as well as by his physical powers, and (d) by manumission

1 1 3 INSTITUTIONUM LIBRI QUA TTUOR. [Lib. I.

3 alieno contra naturam subicitur. Servi autem ex eo appellati
sunt, quod imperatores captivos vendere iubent ac per hoc
servare nee occidere solent. qui etiam mancipia dicti sunt,

4 quod ab hostibus manu capiuntur. Servi autem aut nascuntur
aut fiunt. nascuntur ex ancillis nostris : fiunt aut iure gen-
tium, id est ex captivitate, aut iure civili, cum homo liber

he is capable of becoming a 'person,' which explains the treatment of his
position in this book (Tit. 5).

In relation to his master, the slave's condition is one of absolute de-
pendence : hence the application to him of the rules and ideas of owner-
ship, such as the capacity of being jointly owned by co-proprietors.
Originally, the rights of a dominus over his slave were as absolute as
over any other object of property : limitations were first imposed on
them by the Emperors. Claudius gave freedom to slaves whom their
masters had turned out of doors on account of ill-health or disease, and
punished those that killed slaves who fix)m some such cause had become
a burden to them. A lex Petronia (a copy of which was found in Pompeii,
so that its enactment must have been before 79 a.d.) forbade slaves to
be matched against wild beasts in the arena : ' post legem Petroniam et
senatusconsulta ad eam legem pertinentia dominis potestas ablata est,
- ad bestias depugnandas suo arbitrio servos tradere. Oblato tamen indici
servo, si iusta sit domini querela, sic poenae tradetur' Dig. 48. 8. 11. 2.
Hadrian animadverted in strong terms on the arbilaluy killing of slaves
without judicial sanction ; and finally Antoninus Pius enunciated the
general principle that they ought to be protected against unwarranted
severity. Tit 8. 2 inf.; cf. Gaius i. 53. By his enactment a man who
killed his own slave without just cause became liable to the penalty of the
lex Cornelia de sicariis, Bk. iv. 18. 5 inf. These laws, however, must not
be supposed to have conferred rights upon the slave, and so inade him a
persona ; they merely limited the general rights of ownership on grounds
of expediency, and their rationale is well expressed by Gaius in the
passage last referred to : ' male enim nostro iure uti non debemus ; qua
ratione et prodigis interdicitur bonorum suorum administratio.' ^ For the
whole subject see Mr. Posters notes, Gaius, loc. cit and Mr. Roby*s note
on Dig. 7. I. 17. I in his edition of that title (Introduction to Justinian's
Digest, p. 128).

§ d. For mancipium in its more technical sense see note on Tit. 8. pr.

§ 4. The general rule of the ius gentium was that children followed the
condition of their mother, whatever might be that of the father : thus the
children of a female slave (ancilla) were bom slaves themselves. Two
exceptions to this which have no relation to servile descent are noticed
by Mr. Poste on Gaius i. ^(i sq. In one or two cases, however, anomalous
rules of positive law reversed the general principle, so that the children
of an ancilla were bom free, those of a free- woman ' slaves. By the
SC. Claudianum (Gaius i. 84-86) it was enacted that (i) the children of a
free man by an ancilla, whom he believed to be free, should be free

Th. 30 DE WRE PERSON ARUM. II3

maior viginti annis ad pretium participandum sese venumdari
passus est. in servorum condicione nulla differentia est. In 5

if males, slaves if females ; but this rule was repealed by Vespasian in
favour of the old principle of the ius gentium; (2) if a free woman
cohabited with a servus alienus with the consent of the latter*s master,
though she remained free herself the issue should belong to the master :
this was repealed by Hadrian, Gains i. 84 ; {3) if a free-woman knowingly
cohabited with a servus alienus without the consent of the latter's master,
and persisted in the intercourse after prohibition by him, after three
denunciations on his part she was awarded to him as a slave by the
magistrate, and her diildren, whether bom before or after this award,
shared her fate : her property passed to him with her person. This was
only repealed by Justinian himself; Bk. iii. 12. I in£

When a free person became a slave, he was said to suffer capitis de-
minutio maxima (Tit. 16. i inf.). Of this there was one mode iure
gentium, and three iure civili. (i) It was a principle of ius gentium that
a person becomes a slave by falling under the power of a foreign nation ;
this of course usually occurred in the form. of capture in war, but it was
sufficient if there was no friendly treaty or intercourse between the two
peoples. Dig. 49. 15. 5. 2. Persons captured in dvil war did not become
slaves, Dig. 49. 15. 21. 1, nor did those who were captured by brigands,
ib. 19. 2. Liberty lost in this way could be recovered by postliminium.
Tit 12. 5, and notes inf.; Tit 20. 2. (2) In certain cases the law allowed
a free person to be sold as a slave, e. g. those who attempted to evade
public burdens by not having their names entered on the census, or who
shirked military service ; so too the insolvent debtor under the old law
of execution by manus iniectio. In all these cases, which were obsolete
long before Justinian, except possibly the last, it was necessary that the
guilty person should be sold trans Tiberim, i«e. to a foreign people. From
the time of Commodus, and possibly earlier, a libertus guilty of gross in-
gratitude to his patron might be sold as a slave by the latter or (later)
revocatus in patroni servitutem, Tit. 16. i inf. ; Sueton. Claud. 25 ; Dig. 37.
14. 5. pr. ; Tac. Ann. xiii. 26. 27 ; Dig. 25. 3. 6. I. Lastly, there was the
case noticed in the text. The rule stated in Cod. 7. 16. 10 (' liberos pri-
vatis pactis non posse servos fieri certi iuris erat ') had led to the kind of
fraud referred to in the text as early as Plautus (Pers. i. 3. 55 ; iii. i) ; and
by the time of Mucins Scaevola it had become an established principle of
praetorian law that if a free person twenty years of age collusively allowed
himself to be sold as a slave, in the intention of sharing the price with the
vendor, the praetor should refuse him the proclamatio in libertatem or
liberalis causa and adjudge him actually a slave : this was confirmed by
senatusconsulta, Dig. 40. 13. 3. (3) A free- woman might become a slave
under the SC. Claudianum, see supr. (4) Persons condemned to death, to
labour in the mines, or to fight with wild beasts, became servi poenae (Tit.
12. 3 inf.), i. e. slaves with no master at all : by Nov. 22. 8 Justinian enacted
that this should no longer dissolve the marriage of the condemned person.

§ 6. For the twofold division of men into liberi and servi Ulpian in

I

1 14 INSTITUTIONUM LIBRT Q UA TTUOR. [Lib. I.

liberis multae differentiae sunt, aut enim ingenui sunt aut
libertini.

Dig. I. I. 4 substitutes one of three classes : ' liberi, et his contrarium
servi, et tertium genus liberti : * cf. Tit. 5. pr. inf. But between absolute
slavery and complete legal freedom there were two intermediate conditions.
The first of these is that of the statuliber (' qui statutam et destinatam in
tempus vel conditionem libertatem habet ' Dig. 40. 7. i. pr.) ; the other is
that of the slave who was said ' in libertate esse/ i. e. who was manumitted
in some mode not recognised as conferring full legal freedom (note on Tit.
5. 1 inf.), and who therefore remained a slave in the eye of the law, though
protected by the magistrate in the actual enjoyment of liberty.

From these cases differ certain others in which a person, though
actually free, was subject to an external control which limited his freedom,
and placed him to a considerable degree in the position of a slave : (i) the
free person bona fide serviens^ i. e. who thinks he is a slave ; in some
matters, especially with regard to acquisition, he was treated as a slave,
and all that he acquired under definite conditions belonged to his quasi
dominus ; see Bk. ii. 9. 4 inf., Gains ii. 92. (2) The auctoratus, who hired
himself out as a gladiator, Gains iii. 199 ; the hirer could sue by actio
furti if he were removed from his control. The gladiatorial fights were
prohibited by Constantine, Cod. 11. 43. i. (3) If a prisoner of war was
redeemed, his owner had a kind of lien on him until the whole redemption
sum was paid, and so long the ius postliminii was suspended. (4) The
debitor addictus under the middle law of bankruptcy did not become his
creditor's slave, but was bouhd to work for him until the debt was satisfied ;
see Gains iii. 199 for a parallel between him and the auctoratus. (5) The
free person in mancipio, for which see note on Tit 8. pr. inf. (6) The
colonus. Coloni (in this sense) were persons inseparably attached from
birth to the soil of some particular estate or district (glebae adscripti) for
purposes of cultivation ; they were personally free, but as it were slaves
of the land, ' licet conditione videantur ingenui servi tamen terrae ipsius
cui nati sunt existimentur* Cod. 11. 51. i ; under the later Empire they
composed the greater part of the agricultural population. In many
respects they were completely assimilated to slaves ; thus their property
was called peculium, and was considered, like themselves, an appendage
of the soil, and if they ran away they could be recovered by resil action :
for a longer notice of them see Mr. Poste's note on Gains iii. 146. One
theory of the origin of colonatus is that it is to be traced to the Roman
practice of distinguishing between town and country slaves (familia
urbana and rustica) ; the latter, being engaged in tillage, seem always
to have enjoyed a certain freedom of action, and came more and more
to be regarded as accessions to the land; their position was actually
much the same as that of the colonus, except that the status of the
latter was a legal one, and it is urged that the transition from the un-
free to the free condition perhaps resulted from some statute empower-
ing domini to manumit rural slaves on condition of their remaining
glebae adscripti and paying a substantial rent (canon) for their hold-

Tit. 5.] DE LIBERT IN IS. 1 15

IV.

DE INGENUIS.

Tngenuus is est, qui statim ut natus est liber est, sive ex
duobus ingenuis matrimonio editus, sive ex libertinis, sive ex
altero libertino altero ingenuo. sed et si quis ex matre libera
nascatur, patre servo, ingenuus nihilo minus nascitur : quem-
admodum qui ex matre libera et incerto patre natus est,
quoniam vulgo conceptus est. sufficit autem liberam fuisse
matrem eo tempore quo nascitur, licet ancilla conceperit. et
ex contrario si libera conceperit, deinde ancilla facta pariat,
placuit eum qui nascitur liberum nasci, quia non debet cala-
mitas matris ei nocere, qui in utero est. ex his et illud
quaesitum est, si ancilla praegnans manumissa sit, deinde
ancilla postea facta peperit, liberum an servum pariat? et
Marcellus probat liberum nasci : sufficit enim ei qui in ventre
est liberam matrem vel medio tempore habuisse: quod et
verum est. Cum autem ingenuus aliquis natus sit, non officit 1
tlli in servitute fufsse et postea manumissum esse : saepissime
enim constitutum est natalibus non officere manumissionem.

V.

DE LIBERTINIS.

Libertini sunt, qui ex lusta servitute manumissi sunt,
manumissio autem est datio libertatis : nam quamdiu quis in

ings. Other writers on the subject however, among them Savigny,
derive colonatus from repeated settlements of homeless and home-seek-
ing barbarians in the Roman provinces.

Tit. IV. The law as stated in the words * et ex contrario ... qui in
utero est/ unless the child was conceived in lawful wedlock, is contrary
to the principle laid down by Gaius i. 89 *qui illegitime concipiuntur,
statum sumunt ex eo tempore, quo nascuntur : qui legitime concipiuntur,
ex conceptionis tempore' which is confirmed by Ulpian, reg. 5. lo, and
Neratius in Dig. 50. i. 9. By the time of Paulus, however, this had been
altered, 'id enim favor libertatis exposcit' rec. sent. 2. 24. 1-3. Paulus
also agrees with Marcellus upon the question for which the latter's opinion
b cited : ' media enim tempora libertati prodesse, non nocere etiam pos-
sunt ' loc. cit.

1. For the meaning of *in servitute fuisse' see on Tit. 3. 5 supr.

Tit. V. By ' iusta servitus ' is meant a slavery which is legal as well as

I %

Il6 INSTITUTIONUM LIBRI QUATTUOR. [Lib. I.

servitute est, manui et potestati suppositus est, et manumissus
Hberatur potestate. quae res a lure gentium originem
sumpsit, utpote cum iure natural! omnes liberi nascerentur nee
esset nota manumissio, cum servitus esset incognita: sed
posteaquam iure gentium servitus invasit, secutum est bene-
ficium manumissionis. et cum uno communi nomine homines
appellaremur, iure gentium tria genera hominum esse coepe-
runt, liberi et his contrarium servi et tertium genus libertini,
1 qui desierant esse servi. Multis autem modis manumissio
procedit : aut enim ex sacris constitutionibus in sacrosanctis
ecclesiis aut vindicta aut inter amicos aut per epistulam aut
per testamentum aut aliam quamlibet ultimam voluntatem.

actual, so that it is contrasted with mancipium, in servitute esse, and the
slavery of a prisoner of war ; i. e. the rights of ingenuitas were not de-
stroyed by captivity, but could be recovered by postliminium; Dig. 49.
15. 21. pr.

The modes in which a slave could become free (and which are not
systematically discussed by Justinian, who confines himself in the main
to manumission) are three in number, viz. (1) postliminium, note on Tit.
12. 5 inf. ; (2) manumission, of which below ; and {3) certain irregular
modes in which freedom was conferred by positive law without manu-
mission by the dominus (Dig. 40. 8 *Qui sine manumissione ad liber-
tatem perveniunt '). Thus (a) the SC. Silanianum of Augustus' period
liberated slaves who discovered their masters' murderers, and the same
was done by later enactments as a reward for the detection of certain
other crimes, Cod. 7. 13. 0) An edict of Claudius gave liberty to slaves
exposed by their masters (see note on Tit. 3. 2 supr.). (y) An enact-
ment of Vespasian did the same for ancillae who were exposed to pros-
titution against the terms of the disposition under which they were
acquired, (d) If a slave were aliened under a promise to manumit,
which the alienee failed to perform, the slave was declared free by a law
of Marcus and Commodus. (t) A number of senatusconsulta beginning
under Trajan provide in the same manner for the enfranchisement of
slaves to whom liberty was bequeathed by a fideicommissum. (0 Certain
less important modes introduced by Leo and Justinian are noticed in
Cod. 12. 5. 4, and Nov. 5. 2. i ; 123. 4. 17.

§ 1. Manumission was an act of the master by which the slave became
free. Its effect, under the older law, was to make the slave not only free,
but a citizen of Rome ; indeed, he might even become a member of a
Roman family by being given in adoption to a paterfsimilias by his
master, Gellius 5. 19, but under the later law this was not allowed. The
act was thus one of political import (see Mr. Poste on Gains i. 17), and
therefore was required to be performed in some mode or other in which
the state, by participation, could give its sanction and consent

Such Mustae ac legitimae manumissiones ' (Gaius i. 17) were three in

Tit. 5 J DE LIBERT IN IS. 1 1 7

sed et aliis multis modis Hbertas servo competere potest, qui
tarn ex veteribus quam nostris constitutionibus introducti

number, (i) Vindicta, a form of the praetor's voluntary jurisdiction! or
prearranged suit at law : the slave was claimed as free in a real action
(vindicatio) by an adsertor libertatis: the master, as defendant, in-
stead of resisting the claim by laying the vindicta or rod on the slave
before the praetor, released him (manu mittebat), thereby confessing
himself in the wrong, whereupon the praetor adjudged the slave free
(Plautus, mil. glor. 4. i. 15). The procedure, which at first was strictly
that of the 'legis actio sacramenti' (for which see Gains iv. 16, and
Index, inf.) was simplified in course of time by the part of adsertor being
played by one of the praetor's lictors, and by the release of the master
frx)m all formal cooperation : finally, the necessity of an adsertor was
altogether dispensed with, and it was held sufficient if the master, ac-
companied by the slave, declared his intention of enfranchising him to
the praetor, whenever (' semper ' in the text is explamed by Theophilus
' Mi (V av^Mx^f i/*^P9 ') and wherever he met the latter, and if the latter
thereon formally adjudged him free : see § 2 of this Title, and for the
process generally Posters Gains loc. cit. (2) Censu (for the census see
General Introd. pp. 17 (note) and ai supr.). The censor could make
any one a citizen of Rome by entering his name on the census or official
list, and this was used for manumission by the master's taking his slave
to the censor and allowing him to make his *professio' before him
without entering an objection. Ulpian speaks of the census as a thing
of the past, only three having been held since the Christian era, the last
A.D. 74; the form was revived but once afterwards, A.D. 249, so that
Justinian does not mention this as one of the modes in which a slave
could gain his freedom. (3) Testamento. The master could either
bequeath a slave his liberty directly, Ulp. reg. 2. 7, in which case he
became ' libertus orcinus,' Bk. ii. 24. 2 inf., and was free from the moment
the heir accepted the inheritance, unless the manumission was condidonal
or ex die (note on Tit. 20. i inf.), or imposed on the heir (or some other
person) an obligation to manumit him (libertas fideicommissaria), in
which case he became the freedman of the person by whom he was in
fACt manumitted ; cf. Ulpian, reg. 2. 7. 8.

These were in Cicero's time the only modes in which a manumitted
slave could become free. If the master attempted to enfranchise him
in any other way (e. g. by a declaration in the presence of witnesses—
'roanumissio inter amicos' Ulpian, reg. i. 18, Pliny, £p. 7. 16, Seneca
de vit. beat. 24. 2— by a letter, * per epistolam,' Martial, ep. 9. 89, Isi*
dorus, orig. 9. 4, or by treating him as free, e. g. convivii adhibitione, by
inviting him to sit at meat with him — which were called manumissiones .
minus solennes), the man remained legally a slave, but was said Mn
libertate esse' Gains iii. 56, note on Tit. 3. 5 supr. A legal status was
first conferred on slaves manumitted in any of these informal ways by
the lex lunia Norbana, A.D. 19, for which see on § 3 inf. A new form of
manumission (in ecclesiis) which had complete legal effect was intro-

ll8 INSTITUTIONUM LIBRI QUATTUOR. [Lib. I.

2 sunt. Servi vero a dominis semper manumitti solent;
adeo ut vel in transitu manumittantur, veluti cum praetor
aut proconsul aut praeses in balneum vel in theatrum eat.

3 Libertinorum autem status tripertitus antea fuerat: nam
qui manumittebantur, modo maiorem et iustam Hbertatem
consequebantur et fiebant cives Romani, modo minorem et
Latini ex lege lunia Norbana fiebant, modo inferiorem et
fiebant ex lege Aelia Sentia dediticiorum numero. sed
dediticiorum quidem pessima condicio iam ex multis tem-
poribus in desuetudinem abiit, Latinorum vero nomen non
frequentabatur : ideoque nostra pietas omnia augere et in
meliorem statum reducere desiderans in duabus constitutio-
nibus hoc emendavit et in pristinum statum reduxit, quia et
a primis urbis Romae cunabulis una atque simplex libertas
competebat, id est eadem, quam habebat manumissor, nisi
quod scilicet Hbertinus fit qui manumittitur, licet manumissor
ingenuus sit. et dediticios quidem per constitutionem ex-

duced by Constantine, consisting in a declaration by the master in
church in the presence of the congregation and the bishop, attested by
a document signed by the latter ; Cod. i. 2.

The right of the full owner to manumit was originally subject to no
restrictions, except so far as he was bound by any contract or testa-
mentary disposition under which the slave came into his possession*
Subsequently, however, limitations were imposed, in the main on political
grounds, by the lex Aelia Sentia, A.D. 4, § 4 inf. and Tit. 6. pr., and the
lex Fufia Caninia, Tit. 7 inf., and by the lex lulia de adulteriis, Bk. iv.
jS. 4 inf., in order to assist the conduct of criminal proceedings.

Until Justinian abolished the distinction between Bonitary and Quiritary
ownership (note on Bk. ii. i. 11 inf.) a slave might belong to one person
ex iure Quiritium, and be ' in bonis ' of another ; the latter alone could
manuniit him, but only so as to make him a Latinus lunianus ; Ulpian,
reg. I. 16. Where one person had- a usufruct in a slave belonging to
another, any attempt by the former to manumit him merely resulted
in the extinction of his usufruct ; he could be manumitted by the owner,
who, however, could not thus prejudice the right of the usufructuary ;
Ulpian, ib. 19: Justinian (Cod. 7. 15. i) made some alteration in this.
The same principles were observed- in respect of a slave who had been
given in security by pledge ; but the manumission of any slave in whom
another person had a ius in re aliena made him Latinus only and not
civis, until Latinitas was abolished by Justinian. For the manumission
of a slave owned by joint proprietors see Bk. ii. 7. 4 and note inf.

§8. The lex lunia Norbana bestowed on slaves manumitted 'minus
solenniter' the rights of Latinitas (General Introd. p. 28 supr.), whence

Tit. 5.] DE LIBERTINIS. 119

pulimus, quam promulgavimus inter nostras decisiones, per
quas suggerente nobis Triboniano viro excelso quaestore
antiqui luris altercationes placavimus: Latinos autem lunianos
et omnem quae circa eos fuerit observantiam alia constitutione
per eiusdem quaestoris suggestionem correximus, quae inter
imperiales radiat sanctiones, et omnes libertos nullo nee aetatis
manumissi nee dominii manumissoris nee in manumissionis
modo discrimine habito, sicuti antea observabatur, civitate
Romana donavimus : multis additis modis, per quos possit
libertas servis cum civitate Romana, quae sola in praesenti
est, praestari.

they were called Latini luniani. The Latinitas of the Latini coloniarii
had conferred the commercium without the connubium, i.e. the power
of holding property and engaging in commerce under the peculiar forms
and protection of Roman law, and of making a testament valid iure
civilh But these rights were seriously curtailed, in the case of Latini
luniani, by the lex lunia Norbana, which (Gains i. 22-24) deprived them
of the privileges of making a will, being named testamentary guardians,
and benefiting as heir or legatee under the will of another person. Con-
sequently, when a Latinus lunianus died, as he could have no suus
heres or agnate, his whole property went * iure quodammodo peculii * to
his patron ; Bk. iii. 7. 4 inf. Justinian repealed the lex lunia, and as to
the modes of manumission to which it had related, he enacted that they
should make a slave a full citizen provided they were evidenced by a
document attested by fiwe, witnesses; Cod, 7. 6. The alii multi modi
alluded to in § I are specified in the same constitution : among them are
the formal designation of the slave by the master as his son, and the
delivery to him of the documents by which his servitude could be proved.
There were numerous modes in which a Latinus could attain the civitas ;
see Gains i. 28-35, and Mr. Poste's notes.

The object of the lex Aelia Sentia (a. d. 4) was to throw obstacles in
the way of inconsiderate manumissions, and to guard the state against
the dangers which might result from the bestowal of citizenship on
slaves of bad character and antecedents; it should thus be read in
close connection with the lex Fufia Caninia, Tit 7 inf. Four of its pro-
visions concern us. (1) It enacted that slaves who had been guilty of
some serious crime, or subjected to some degrading treatment, if subse-
quently manumitted, should have only the same rights as dediticii, or
enemies surrendered at discretion : ' lege itaque Aelia Sentia cavetur, ut
qui servi a dominis poenae nomine vincti sint, quibusve stigmata in-
scripta sint, deve quibus ob noxam quaestio tormentis habita sit, et in
ea noxa foisse convkti. sint, quique ut ferro aut cum bestiis depugnarent
traditi sint, inve ludum custodiamve coniecti fuerint, et postea vel ab
eodem domino vel ab alit> manumissi, eiusdem conditionis liberi fiant,
cuius conditionis sunt peregrini dediticii' Gains i. 13. They could not

120 INSTITUTIONUM LIBRI QUATTUOR. [Lib. I.

VI.

QUI EX QUIBUS CAUSIS MANUMITTERE NON POSSUNT.

Non tamen cuicumque volenti manumittere licet, nam is
qui in fraudem creditorum manumittit nihil agit, quia lex
1 Aelia Sentia impedit libertatem. Licet autem domino, qui
solvendo non est, testamento servum suum cum libertate
heredem instituere, ut fiat liber heresque ei solus et neces-
sarius, si modo nemo alius ex eo testamento heres extiterit,
aut quia nemo heres scriptus sit, aut quia is qui scriptus est
qualibet ex causa heres non extiterit. idque eadem l^e
Aelia Sentia provisum est et recte: valde enim prospiciendum
erat, ut egentes homines, quibus alius heres extaturus non
esset, vel servum suum necessarium heredem habeant, qui

by any possibility rise to the status^ of civcs or even of Latini ; the statute
forbade them to live within one hundred miles of Rome under penalty
of becoming slaves again without possibility of a subsequent manumis-
sion ; and their property on decease went to their patron, Gaius iii. 74-76.
This dediticia libertas was practically obsolete before Justinian ('nee
in usu esse reperimus' Cod. 7. 5), and was formally abolished by him,
as is stated in this section. (2) It placed restrictions on manumissions
by masters less than twenty years of age, Tit. 6. 4 inf. ; and also (3) pro-
vided that no slave under thirty years of age should be enfranchised
so as to become a Roman citizen unless the manumission were by vin-
dicta, and an adequate motive were proved before a council at Rome,
and in the provinces before a body of twenty recuperatores ; Gaius
i. 18-20. This provision was repealed by Justinian ; see this paragraph,
ad fin. (4) It invalidated manumissions in fraud of creditors or patron ;
see Tit. 6 pr. inf., Gaius i. 37.

It was said above that a Latinus could in certain ways become a
civis ; there were also modes in which a libertus could become ingenuus,
one of which, operative only under the old law, has been noticed in the
note on § I supr. Ingenuitas, however, could be conferred by imperial
grant ('natalibus restitui' Dig. 40. 11. 2) ; and by the acquisition from
the emperor of the ' ius aureorum anulorum ' a freedman became in-
genuus during his lifetime, but could not prejudice his patron's rights
of succession ; Dig. 38. 2. 3. pr., fragm. Vat. 226, Dig. 4a 10. 6. By
Nov. 'j^. I and 2 Justinian bestowed the ius anulorum on all freed-
men and freedwomen whatsoever : ' si quis manumittens sennmi aat
ancillam snam ... qui libertatem acceperit, habebit et aureorum anu-
lorum et regenerationis ius.'

Tit. VX For the term * heres necessarius,' and the purpose of insti-
tuting one's own slave, see Bk. ii. 19. i inf.

Tit. 6.] QUI EX Q UIBUS CA USIS, ETC. 1 2 1

satisfacturus esset creditoribus, aut hoc eo non faciente credi-
tores res hereditarias servi nomine vendant, ne iniuria de*
functus afficiatur. Idemque iuris est et si sine libertate servus 2
heres institutus est. quod nostra constitutio non solum in
domino, qui solvendo non est, sed generaliter constituit nova
humanitatis ratione, ut ex ipsa scriptura institutionis etiam
libertas ei competere videatur, cum non est verisimile eum,
quern heredem sibi elegit, si praetermiserit libertatis dationem,
servum remanere voluisse et neminem sibi heredem fore. In 3
fraudem autem creditorum manumittere videtur, qui vel iam
eo tempore quo manumittit solvendo non est, vel qui datis
libertatibus desiturus est solvendo esse, praevaluisse tamen
videtur, nisi animum quoque fraudandi manumissor habuit,
non impediri libertatem, quamvis bona eius creditoribus non
sufficiant : saepe enim de facultatibus suis amplius quam in
his est sperant homines, itaque tunc intellegimus impediri
libertatem, cum utroque modo fraudantur creditores, id est et
consilio manumittentis et ipsa re, eo quod bona non suffectura
sunt creditoribus.

Eadem lege Aelia Sentia domino minori annis viginti non 4
aliter manumittere permittitur, quam si vindicta apud con-
silium iusta causa manumissionis adprobata fuerint manumissi.
lustae autem manumissionis causae sunt, veluti si quis patrem 5
aut matrem aut filium filiamve aut fratrem sororemve natu-
rales aut paedagogum nutricem educatorem aut alumnum
alumnamve aut coUactaneum manumittat, aut servum pro-

The lex Aelia Sentia did not apply to peregrini, to whom, however,
this part of it relating to manumission in fraud of creditors was extended
by a ' senatusconsultum ' under Hadrian ; Gaius i. 47. Gaius says (i. 37)
that the statute allowed a patron to revoke manumissions by his ireed-
men which woul^ seriously impair his own rights of succession. For the
sale of a deceased insolvent's property see Gaius iii. 78-80 : it entailed
posthumous infamia, whence it is said ' servus necessarius . . . non magis
patrimonium quam infamiam consequi videtur' Cod. Theod. 2. 19. 3.

§ 2. The enactment referred to is in Cod. 6. 37. 5.

§ 4. The motive of this part of the statute is stated by Theophilus, hC
tCtuHoy rttv iktvBfpovprwf' rjfniararo yiip »s . . , cv^'pAr airar&inrai . . . rffv
iavTw ikaerrownv vn6<rTa<riv, The consilium consisted at Rome of five
senators and Bve knights above the age of puberty, who sat on fixed
days ; Gaius i. 20, Ulpian, reg. i. 13, Dig. i. 10. pr. and 2.

§ 5. For the common employment of slaves as paedagogi cf. Plutarch,

1 22 INSTITUTIONUM LIBRI Q UA TTUOR. [Lib. I.

curatoris hiabendi gratia, aut ancillam matrimonii causa,
dum tamen intra sex menses uxor ducatur, nisi iusta causa
impediat, et qui manumittitur procuratoris habendi gratia ne

6 minor septem et decern annis manumittatur. Semel autem
causa adprobata, sive vera sive falsa sit, non retractatur.

7 Cum ergo certus modus manumittendi minoribus viginti
annis dominis per legem Aeliam Sentiam constitutus sit,
eveniebat, ut, qui quattuordecim annos aetatis expleverit, licet
testamentum facere possit et in eo heredem sibi instituere
legataque relinquere possit, tamen, si adhuc minor sit annis
viginti, libertatem servo dare non poterat quod non erat
ferendum, si is, cui totorum bonorum in testamento dispositio
data erat, uni servo libertatem dare non permittebatur. quare
nos similiter ei quemadmodum alias res ita et servos suos
in ultima voluntate disponere quemadmodum voluerit per-
mittimus, ut et libertatem eis possit praestare. sed cum
libertas inaestimabilis est et propter hoc ante vicesimum
aetatis annum antiquitas libertatem servo dan prohibebat:
ideo nos mediam quodammodo viam eligentes non aliter
minori viginti annis libertatem in testamento dare servo suo
concedimus, nisi septimum et decimum annum impleverit et
octavum decimum tetigerit. cum enim antiquitas huiusmodi
aetati et pro aliis postulare concessit, cur non etiam sui iudicii
stabilitas ita eos adiuvare credatur, ut et ad libertates dandas
servis suis possint provenire ?

de educ. iiberis 7, Plautus, mercat. prolog. 89, Dig. 40. 5. 35. The
difference between paedagogus and educator is perhaps that the boy
passed from the charge of the first to that of the second at the age of
twelve or thereabouts ; Apul. Met. x. p. 687.

An ancilla manumitted with the consent of the concilium on the
ground that the dominus intended to marry her did not become abso-
lutely free until the marriage took place. Dig. 40. 2. 19 ; 40. 9. 21 ; the
senate required the master to swear he would marry her within the six
months, Dig. 40. 2. 13.

As appears from § 7 inf., no one was allowed to act as processual
agent for another until he was seventeen years of age, from which we
may infer that liberti were used as procurators mainly in matters of
litigation.

§7. By Nov. 119. 2 Justinian enabled domini to manumit slaves by
will immediately they had completed their fourteenth year.

Tit. 80 DE HIS QUI SUI VEL ALIEN I, ETC. 1^3

VII.

DE LEGE FUFIA CANINIA SUBLATA.

Lege Fufia Caninia certus modus constitutus erat in servis
testamento manumittendis. quam quasi libertatibus impe-
dientem et quodammodo invidam toUendam esse censuimus,
cum satis fuerat inhumanum vivos quidem licentiam habere
totam suam familiam libertate donare, nisi alia causa impediat
libertati, morientibus autem huiusmodi licentiam adimere.

VIII.

DE HIS QUI SUI VEL ALIENI lURIS SUNT.

Sequitur de iure personarum alia divisio. nam quaedam
personae sui iuris sunt, quaedam alieno iuri subiectae sunt :
rursus earum, quae alieno iuri subiectae sunt, aliae in potestate
parentum, aliae in potestate dominorum sunt, videamus
itaque de his quae alieno iuri subiectae sunt: nam si cog-
noverimus, quae istae personae sint, simul intellegemus, quae
sui iuris sunt, ac prius dispiciamus de his qui in potestate
dominorum sunt.

Tit. Vn. The lex Fufia Caninia (Gaius i. 42-46, Ulpian, reg. i. 24. 25,
Paul. sent. rec. 4. 14) was passed in the reign of Augustas, about the
same time as the lex Aelia Sentia (Suetonius, Octav. 40) ; its design was
to put a check on the reckless testamentary manumissions by which
testators sought to glorify themselves. It enacted that in future an
owner of three slaves should be able by will to manumit only two ; of
from four to ten, only one half; of from eleven to thirty, only one third ;
of from thirty-one to one hundred, only a fourth ; and of from one hun-
dred and one to five hundred, only a fifth : but in no case might more
than a hundred be enfranchised in this way. The slaves whom the
testator wished to manumit must be specified by name (Ulpian, reg.
I. 24), or by some adequate description : ' nominatim videntur liberi
esse iussi, qui vel ex artificio, vel officio, vel quolibet alio modo evidenter
denotati essent, veluti dispensator mens, cellarius meus, coquus meus,
Pamphili servi mei filius' Dig. 40. 4. 24, Paul. sent. rec. 4. 14. i.

If the testator attempted to evade the statute by naming more than
made up the number permitted, and arranging their names in a circle,
liberty was denied them all, 'quia nullus ordo manumissionis inve-
nitur' Gaius i. 46. For Justinian's repeal of the lex Fufia Caninia see
Cod. 7» 3»

Tit vm. 1. For the rights of a master over his slaves see on Tit. 3.
2 supr.

124 INSTITUTIONUM LIBRI QUATTUOR. [Lib. I.

1 In potestate itaque dominorum sunt servi (quae quidem
potestas iuris gentium est : nam apud omnes peraeque gentes

Besides the public authority of the State over all men, free or slaves,
who lived within its territory, the Roman law recognised certain powers
resting purely on rules of the private code, and exercised by one man
over others, free no less than unfree, in virtue of titles which carry us
back to the very infancy of the people. The general term used to express
this authority, which was invariably based on some family or quasi-family
relation, was ius or potestas. A man was said to be sui iuris if he
were not, alieni iuris if he were, subject to one or other of these forms
of domestic control. One of them was the dominica potestas, upon
which enough has been said already. With regard to free persons who
were in some way or other legally dependent on a domestic superior, the
term filius fgunilias was used in a very general way to denote them all :
'nam civium Romanorum quidam sunt patresfamiliarum, alii filiifami-
liarum, quaedam matresfamiliarum, quaedam filiaefamiliarum. Patres-
familiarum sunt, qui sunt suae potestatis, sive puberes, sive impuberes :
simili modo matresfamiliarum. Filiifamiliarum et filiae, quae sunt in
aliena potestate ' Dig. i. 6. 4.

Justinian speaks of only one form of domestic authority over free per-
sons, the patria potestas. When we turn to the passage in Gaius (i. 48,
49) which corresponds to this section of the Institutes, we find three :
' sed rursus earum personarum quae alieno iuri subiectae sunt, aliae in
potestate, aliae in manu, aliae in mancipio sunt.'

Manus was a power which could be exercised only by males over
females, and which originally could be exercised only by husbands over
their wives; later, women came to be in manu to men who were not
their husbands, but in these cases the relation was merely momentary.
The usual case is the manus of the husband, which in many of its incidents
exactly resembled patria potestas ; but as the moral relation of husband
and wife is different from that between parent and child, there are points
of contrast ; e. g. though the wife in manu was said to be filiae loco, the
husband had not, like the father, an absolute ius vitae necisque over her;
he could inflict death only after a judicial consultation with other mem-
bers of the family : Dion. ii. 25 ; Tac. Ann. xiii. 32 ; Val. Max. ii. 9. 2 ;
Pliny, hist. nat. xiv. 14. 3. In respect of property, however, a wife in
manu and a child in power were on the same footing ; all the wife's pro-
perty went to the husband by a ' successio per universitatem ' (Gaius iii.
80), and whatever she acquired subsequently she acquired for him (ib. ii.
90) ; her liability on contract is touched on in Gaius iv. 80.

Manus could arise in three ways, Gaius i. no: by confarreatio, a
religious marriage ceremony in the presence of ten witnesses ; by coemp-
tio, a sale by the woman of herself before five witnesses and a libripens ;
and by usus, continuous residence of the woman beneath her husband's
roof for one year ; absence for three nights in the year (per trinoctium)
saved her her freedom. Though manus per usum was not unknown in
Cicero's time (pro Flacco 34, cited by Mr. Poste in his note on this sub-

Tit.8.] DE HIS QUI SUI VEL ALIENI, ETC. 125

animadvertere possumus dominis in servos vitae necisque
potestatem esse) et quodcumque per servum adquiritur, id
domino adquiritur. sed hoc tempore nuUis hominibus, qui 2
sub imperio nostro sunt, licet sine causa legibus cognita et
supra modum in servos suos saevire. nam ex constitutione
divi Pii Antonini qui sine causa servum suum occiderit, non
minus puniri iubetur, quam qui servum alienum occiderit.

ject) it had become obsolete by that of Gaius, who says (i. iii) 'sed hoc
totum ius partim legibus sublatum est, partim ipsa desuetudine obliteratum
est,' and possibly as early as Augustus (Tac. Ann. iv. i6). Confarreatio,
on the other hand, was still practised in Gaius' age (' nam flamines maiores,
id est, Diales, Martiales, Quirinales, sicut reges sacrorum, nisi sint con-
fiaireatis nuptiis nati, inaugurari non videmus' i. 112) ; but a law passed
under Tiberius, a.d. 23, had enacted that a woman married by cpnfar-
reatio should in future pass into her husband's manus only sacrorum
causa ; i. e., as Mr. Poste says, it only operated a change of fomily in
respect of sacred rites ; the woman ceased to have the domestic gods and
worship of her father, and took in exchange those of her husband. But
in secular matters her family was unchanged; she remained, if filia-
Damilias, subject to patria potestas, and did not become quasi-filiafamilias
in the household of her husband : her old ties of agnation in her father's
family were not snapped, and no new ties of agnation in her husband's
family were acquired. Of course the whole institution passed away with
the acceptance of Christianity as the national religion, if not before.
Coemption was employed either for marriage, or for certain anomalous
purposes, e. g. to extinguish the obligation of onerous sacred rites attached
to the estate of an heiress, or to enable a woman to select her own guar-
dian, or to break the ties of agnation, and thus become capable of making
a will; see Mr. Poste on Gaius i. 108-115. Manus, though mentioned in
the Vatican Fragments (General Introd. p. 67 supr.), had ceased to exist
in any form before Justinian, in whose compilations it is not so much as
referred to.

Mancipium (Gaius i. 116-123) was a form of legal omtrol which arose
from a man's right to sell free persons in his potestas or manus by man-
cipation ; a person thus sold was said to be in mancipio to the purchaser.
The features in which his position differed from that of a slave are
pointed out by Mr. Poste on the sections of Gaius .referred to. What-
ever the free person in mancipio acquired belonged to his superior,
except perhaps possession, as he himself was not possessed, Gaius ii. 90.
Mandpium was not uncommon in Gaius' time ; it was a comparatively
permanent status in cases of ' noxae datio ' (Gaius iv. 79), but a merely ^
tempozary and fictitious one in emancipations and adoptions. Justinian
completely altered the form of the two latter, and abolished the noxal
surrender of free persons (Bk. iv. 8. 7 inf.), so that in his system manci-
pium altogether disappears.

126 INSTITUTIONUM LIBRI QUATTUOR. [Lib. I.

sed et maior asperitas dominorum eiusdem principis con-
stitutione coercetur. nam consultus a quibusdam praesidibus
provinciarum de his servis, qui ad aedem sacram vel ad
statuas principum confugiunt, praecepit ut, si intolerabiiis
videatur dominorum saevitia, cogantur servos bonis con-
dicionibus vendere, ut pretium dominis daretur,. et recte :
expedit enim rei publicae, ne quis re sua male utatur. cuius
rescripti ad Aelium Marcianum emissi verba haec sunt : * Do-
minorum quidem potestatem in suos servos illibatam esse
oportet nee cuiquam hominum ius suum detrahi. sed domi-
norum interest, ne auxilium contra saevitiam vel famem vel
intolerabilem iniuriam denegetur his qui iuste deprecantun
ideoque cognosce de querellis eorum, qui ex familia lulii
Sabini ad statuam confugerunt, et si vel durius habitos, quam
aequum est, vel infami iniuria affectos cognoveris, veniri iube,
ita ut in potestatem domini non revertantur. qui Sabinus, si
meae constitution! fraudem fecerit, sciet me admissum severius
exsecuturum/

IX.

DE PATRIA POTESTATE.
In potestate nostra sunt liberi nostri, quos ex iustis nuptiis

Tit IX. The children bom of lawful wedlock between an independent
citizen and a woman with whom he had connubium were born in his
potestas ; and unless he died first, or they were voluntarily released by
him, they remained under it, with trifling exceptions, to the day of their
death. The peculiarity of this, as compared with other peoples, is
noticed by many writers (Gaius i. 55 ; cf. Sextus Empir. Pyrrhon, iii. 34
o( re 'P^fiaimp pofioBtrai tov£ naidas viroxtipiov£ Koi dovkovs tw nartpcnr
K(\€vova'iP tunu . • . irap* mpoi'S dc ox rvpawviKov rovro (K^tPXrjraif Servius
ad Verg. Aen. xi. 143 *fiJii in potestate patris . . . servi loco'). What is
strange about it is not so much its stringency, as its survival, through
centuries of legal history, to the time of Justinian, and its deliberate
perpetuation in his legislation. This is explained in some degree by the
Roman aversion to any change in old established custom which the
advance in social conditions did not render absolutely necessary; stiil
more by the fact that the patria potestas of the sixth century of our own
era was a very different institution from that of the earlier period ; the
rights of the father over the person of the child had been largely curtailed
by both law and custom, and by the development of the different kinds
of peculium (Bk. ii. 9. i, and notes, inf.), the position of the son in respect,
of property and contract had been largely assimilated to that of an

Tit. 9.] DE P ATRIA POT EST ATE. \%^

procreaverimus. Nuptiae autem sive matrimonium est viri et 1
mulieris coniunctio, individuam consuetudinem vitae continehs.

independent person. But without doubt the chief reason why it had
never been found necessary to cut short, by legislative interference, the
duration of patria potestas at puberty or majority was the fact that to ^/
public matters it had no relation whatever. In respect of all public
functions the filiusfamilias was an independent person : in the field of
private law he was incapable of right, or power, or authority on his own
account, but in all other matters he was as capable of right as his father :
' fi]ius£unilias in publicis causis loco patrisfamilias habetur, veluti ut
magistiatum gerat, ut tutor detur' Dig. i. 6. 9, 'quod ad ius publicum
attinet, non sequitur ius potestatis' Dig. 36. I. 14; cf. Maine's Ancient
Law p. 139.

At first, perhaps, there was little to distinguish the power of a father
over his children from that of a master over his slaves, except the fact
that the filiusfamilias was always recognised as a ' persona ; ' accordingly,
though his pater could sell him, the purchaser could not own him as he
could own a slave, but could only hold him in mancipio. The absolute
control which the father possessed over him is best appreciated by consi-
dering the former's powers over his person, and the son's own position
in respect of property, contract, and capacity to sue.

Originally the paterfamilias had ius vitae necisque over those in his
power, so that, as Mr. Poste remarks, the lex Pompeia de parricidiis,
B.C. 52 (Bk. iv. 18. 6 inf.) omits the father from the list of persons who
could be guilty of ' parricide ' : a fortiori^ he possessed the right of uncon-
trolled corporal chastisement. But under the Empire these powers had
dwindled to the mere right of bringing serious domestic offences under
the cognisance of the magistrate, though in trifling matters the father
might still take the law into his own hands : Cod. viii. 47. 3. The killing
of a child was first made ' parricide ' by Constantine ; in the time of
Hadrian a father who had acted thus under great provocation had been
deported to an island. From Plautus (Plut. Amphitruo. i. 3. 3) it seems
to have then been common for parents to expose their infants to perish of
cold and hunger; this was strictly prohibited A.D. 374 (Cod. 8. 52. 2) and
a law of Diocletian and Maximian forbade children to be sold, pledged,
or given away by their 'pater, though Constantine permitted their sale
immediately after birth in cases of extreme poverty, reserving, however, /
an 'equity of redemption ' which could in no way be forfeited. Justinian
(Nov. 134. 7) found it necessary to repeat the prohibition of child-pledging, '*
and increased the penalties against creditors who attempted to enforce
rights thus acquired ; his abolition of noxal surrender of filiifamilias has
been noticed on Tit. 8 pr. supr. So, too, the pater could originally marry
his son or daughter to whomsoever he pleased, and divorce them at
pleasure, besides transferring them to another family by adoption ; * but
later in the imperial period the privilege of dictating marriage had de-
dined into a conditional veto; and adoption itself, destined to lose
almost all its ancient importance in the reformed system of Justinian,

128 INSTITUTIONUM UBRI QUATTUOR. [Lib. I.

t lus autem potestatis^ quod in liberos habemus, proprium est
ctvium Romanorum : null! enim alii sunt homines, qui talem

could no longer be effected without the assent of the child transferred to
the adoptive parentage' (Maine, Ancient Law p. 138). By a constitution
of Marcus Aurelius the pater was forbidden to divorce a son or daughter
in his power without the Iatter*s consent. Accordingly, Ulpian says in
I^ig* 43* 30. I. 5 'si quis filiam suam, quae mihi nupta sit, velit abducere,
vel exhiberi sibi desideret, an adversus edictum exceptio danda sit, si
forte pater concordans matrimonium, forte et liberis subnixum velit dis-
solvere? £t certo iure utimur, ne bene concordantia matrimonia iure
patriae potestatis turbentur.'

In the field of property, the original rule was that the filiusfamilias
could have no proprietary rights, and whatever he acquired by gift,
inheritance, or otherwise, belonged to his father only. This doctrine was
not broken in upon till the Empire, when, by the institution of peculium
castrense, the son was enabled to own property acquired in certain modes.
For this, and the later history of his proprietary rights, see Bk. ii. 9. i,
and notes inf.

In respect of contract the filiusfamilias had always been in a different
position from a slave. A slave could be a party to a contract, and any
advantage which was to be derived belonged to and could be sued for by
the master (Bk. iii. 17 inf.) ; but if he attempted to bind himself by a pro-
mise the resulting obligation was ' naturalis ' only, and neither he nor his
master could be sued upon it : ' melior conditio nostra per servos fieri
potest, deterior non potest' Dig. 50. 17. 133. Some alteration, however,
was made in this latter point by the introduction of the actiones adiectitiae
qualitatis, Bk. iv. 7 inf. But the promise of a filiusfamilias had always
given rise to civilis obligatio : ' filiusfamilias ex omnibus causis tanquam
paterfamilias obligatur, et ob id agi cum eo tanquam cum patrefamilias
potest ' Dig. 44. 7. 39. Thus, on the son's contracts, the pater took all
the gains, while for the debts the son was liable to be sued, the pater not
But it is not to be supposed that people would be over ready to contract
with a person who had no means wherewithal to satisfy the judgment in
case he was condemned; hence we may say generally that, in Roman
law, though the capacity to validly bind oneself by contract does not go
hand in hand with proprietary capacity, yet the practical exercise of that
capacity probably did : and accordingly it was not until the filius-
familias had acquired proprietary rights through the development of the
doctrine of peculium, and the introduction of the actiones adiectitiae
qualitatis had to some extent rendered a father liable on his son's en-
gagements, that the latter's contractual capacity was often called into
exercise.

As the filiusfamilias had no rights of property, so he could have no
rights of action in respect thereof, and therefore could not, as a rule, sue
in his own name in a court of justice. To this there were a few excep-
tions : ' filiusfamilias suo nomine nuUam actionem habet nisi iniuriarum^

Th. lo.] DE NUPTIIS. 129

in liberos habeant potestatem, qualem nos habemus. Qui 8
igitur ex te et uxore tua nasdtur, in tua potestate est : item
qui ex filio tuo et uxore eius nascitur, id est nepos tuus et
neptis, aeque in tua sunt potestate, et pronepos et proneptis
et deinceps ceteri. qui tamen ex filia tua nascitur, in tua
potestate non est, sed in patris eius.

X.

DE NUPTIIS.

lustas autem nuptias inter se cives Roman! contrahunt, qui
secundum praecepta legum coeunt, masculi quidem puberes

et qttod vi aut dam, et deposit! et commodati ut lulianus putat ' Dig. 44.
7. 9. For an explanation of this anomaly see Mr. Poste on Gaius i. 55.

Patria potest as could originate in three ways : (i) by birth, as men-
tioned in this Title ; (2) children not in the father's power at birth might
be afterwards subjected to it by legitimation or some analogous process,
Tit 10. 13, and notes, inf. ; (3) by adoption, Tit. 11 inf.

§ 8. Grandchildren by a son are in the power of their grandfather only
if their fiather was himself subject to it at the time of their conception : if,
before that time, he had been emancipated, they are bom in his potestas,
not in that of their grandfather : so too with great-grandchildren, by a
grandson, and so on. The children of a daughter, or of a granddaughter
by a son, etc., were never in the power of her father or grandfather, but
in that of their own father or paternal grandfather. This was expressed
in the maxim 'mulier familiae suae et caput et finis est' Dig. 50. 16. 195.
5 ; cC Maine, Ancient Law p. 148.

Tit. X. Nuptiae, matrimonium, or marriage, has been defined in the
preceding Title as 'viri et mulieris coniunctio, individuam vitae con-
saetudinem continens.' This definition was borrowed by Justinian from
Modestinus, who says (Dig. 23. 2. i), 'nuptiae sunt coniunctio maris et
feminae, et consortium omnis vitae, divini et humani iuris communication
The last words remind us that in the earliest days of Rome marriage was
a holy relation. In whatever form it took place, and not only in that of
confamatio, it founded a religious communion between husband and
wiie, and therefore received at its commencement a religious sanction.
But in his own age Modestinus' words were a mere reminiscence of the
primitive practice, and must not be understood to express the Christian
conception of the married state, Christianity not having become the
national rel^on till many years afterwards.

lostae nuptiae, legitimum matrimonium, or marriage which would give
patria potestas over the issue, required one special condition besides
those necessary for marriage in general, viz. connubium, and this belonged
to Roman citizens only, with the exception of certain communities on
whom it had been bestowed as a special boon ('connubium concessum'

K

J30 INSTITUTIONUM LIBRI QUATTUOR. [Lib, I.

feminae autem viripotentes, sive patres familias sint sive filii
familias, dum tamen filii familias et consensum habeant

Ulpian, reg. 5. 4). After Caracalla (ai 1-217 a.d.) had conferred the
civitas on all free subjects of the empire, of course absence of connubium
was rather the exception than the rule.

Apart from this, the general conditions of marriage were as follow.
(i) Certain persons were absolutely incapable of contracting marriage,
viz. slaves, castrati, lunatics and idiots, persons below the age of puberty,
those already married, and women whose husbands had not yet been dead
a certain time fixed by law. (2) The parties must not stand within cer-
tain degrees of relationship to one another, §§ i-ii inf., and must (3)
themselves consent to the marriage: *nuptias non concubitus sed con-
sensus &cit ' Dig. 50. 17. 30. (4) They must, if alieni iuris, have the
consent of the persons in whose power they are : cL with this paragraph
Dig. 23. 2. 2 ' nuptiae consistere non possunt, nisi consentiant omnes, id
est, qui coeunt, quorumque in potestate sunt.' For exceptional cases, in
which the parents' consent was required for the marriage even of emanci-
pated daughters, see Livy 4. 9, Cod. 5. 4. i, 18. 20. (5) Marriage was
forbidden by positive law between the members of certain ranks or orders
of society : e. g. between ingenuus and infamis, between senators and
libertae, members of the dramatic profession, etc., by the lex lulia et
Papia Poppaea. Other enactments of a similar kind were made by Con-
stantine. Cod. 5. 27. i, Leo and Anthemius (Nov. Anthem, i), and Justinus,
Cod. 5. 4. 23. On the religious ground marriage was forbidden between
Jew and Christian, and on account of official relation between the praeses
and his provincial subjects, between the tutor and his female ward, etc (6)
Persons convicted of adultery with one another might not subsequently
marry (Nov. 134. 14), and the same rule applied in cases of abduction,
Cod. 9. 13. I, Nov. 143. 150.

Marriage was contracted merely by consent, and no form was pre-
scribed by law. It is true that in the earlier period marriage was usually
accompanied by manus, which, as we have seen, was not completely
obsolete even in the time of Gaius ; but the former was independent
of the latter, which was superimposed on it by some additional ceremony
or fact— confarreatio, coeihptio, or usus. The agreement to marry was
usually entered into by mutual promises (sponsalia), originally made by
sponsio and restipulatio, Dig. 23. i. 2, a form which would always sup*
port an action, so that we may believe that (in an indirect way) the
action for breach of promise of marriage was not unknown to the early
Romans ; i. e. though they never allowed a direct action on the promise
to marry, they allowed the stipulation of a penalty in case of breach, and
this could be recovered. Finally, however, even this indirect form of
compulsion came to be deemed contra bonos mores, and by the intro-
duction of an exceptio doli even the exaction of the penalty was pre-
vented. Dig. 45. I. 134; and from this time onward the betrothal by
stipulation seems to have been discontinued in favour of an informal
engagement, and the principle was established, sufficit nudus consensus

Tit.io.] DE NUPTIFS. 1 31

parentum, quorum in potestate sunt, nam hoc fieri debere et
dvilis et naturalis ratio suadet in tantum, et iussum parentis

ad constituenda sponsalia. In earnest of the engagement mutual gifts
(arrha sponsalicia. Cod. 5. 1) were usual, which were foifeited by a de-
suiting party, who had aJso to restore those given by the other side ; and
this forfeiture seems, with the exception of some social disapprobation, to
have been the only penalty incurred for breach in the time of the classical
jurists.

The transition from tiie state of betrothal to that of actual marriage
•was not effected by any necessary form, religious or otherwise, but by
actual cohabitation, as evidenced by the wife going to live with the hus-
band, accompanied by maritalis affectio, of which the deductio in domum,
or taking home of the woman by the man, was regarded only as a proof.
By Nov. 74. 4. 5 Justinian prescribed certain conditions for the marriage
of imperial officiaJs, but fpr the rest of the Roman world the old rule was
kit standing.

From iustae nuptiae one has to distinguish nuptiae simply. Originally
the former was the only kind of marriage known at Rome. Even, how-
ever, in the time of the Republic there had grown into almost equal
recognition a matrimonium . iuris gentium, a lawful wedlock of persons
between whom there was not connubium, which, inferior to iustae nuptiae
only in not creating patria potestas, was held in great favour under the
empire. In Justinian's time every free subject of the empire practically
had connubium, so that the distinction between nuptiae and iustae
nuptiae, important before the edict of Caracalla, had ceased to have any
significance.

The marriage state was terminated (i) by either party dying or becom-
ing a slave. When the slavery resulted from captivity, postliminium
had not originally the effect of restoring the married condition, but a
fresh consensus was required if the parties still wished to be husband
and wife, Dig. 49. 15. 14. i. This rule, however, underwent a gradual
change, and eventually captivity was regarded as in no way different
from ordinary absence, proof being required of the absent party's death
before the other could contract another marriage, Nov. 117. 11. (2) By
^incestus superveniens ; ' e.g. if a man adopts his daughter's husband,
the latter thereby becomes his own wife's brother. Dig. 23. 2. 67. 3 ; cf.
this Title, passim. (3) By divorce. Upon this the Romans held that as
the essence of marriage lay in the maritalis affectio, it could be terminated
by the mere mind of either party no longer to live in wedlock with the
other ; the continuance of the marriage depended on that of the affectio.
Either party was thus free to terminate the connection at pleasure, and
^[reements surrendering this privilege were void: Mibera matrimonia
esse antiquitus placuit, ideoque pacta ne liceat divertere non valere
constat ' Cod. 8. 39. 2, If the separation was effected by mutual arrange*
ment, it was usually called divortium, if by the act of one party only,
repudium ; ' in repudiis vero, id est, renunciatione, comprobata sunt
haec verba: tuas res tibi habeto: item haec, tuas res tibi agito' Dig.

K 2

• 13a INSTITUTIONUM LIBRI QUA TTUOR. [Lib. L

praecedere debeat. unde quaesitum est, an furiosi filia
nubere aut furiosi filius uxorem ducere possit i cumque super

24. 2. 2. I. Persons who had been married by confarreatio could ori-
ginaUy not be divorced at all (Fest. £p. s. v. flammeo ; Cell. Noct. Att
la 15) ; but from the time probably of Domitian (Plut quaest. Rom. 50)
they could be separated by a religious form of divorce called diffarreatia
It seems uncertain, where manus was produced by usus or coemption
whether the wife was as free ' repudium mittere ' as when she was not in
manu mariti, though Gaius says (i. 137) 'a wife subject to manus can no
more compel her husband to release her therefrom without dissolution of
the marriage than a daughter can compel her father to emancipate hen'
A special form was prescribed for repudia by the lex Julia de adulteriis,
B.C. 17, which 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, Dig. 24. 2. 9.

The recklessness with which the right of divorce was exercised in the
darker days of the Empire is well known. For centuries the only attempts
made to check the evil consisted in imposing certain proprietary disad-
vantages on persons who unjustifiably divorced their consoits, or who
occasioned a divorce by their own infidelity. Thus a wife whose adultery
led to her dismissal forfeited a sixth of her dos, and an eighth for more
venial offences ; and if there were children bom of the marriage, the hus-
band might retain for their benefit a sixth of the dos for each, thoi^h the
whole amount thus retained might not exceed a half of the whole dos
(' retentio propter liberos,' Ulpian, reg. 6. 9. sq.). A husband who occa-
sioned a divorce had to restore the dos either at once, or at least before
the whole time had elapsed for which, under ordinary circumstances, he
would have been entitled to enjoy it. The acceptance of Christianity as
the State religion brought with it a large amount of imperial legislation on
this subject. On divorce by mutual consent no restraint was imposed
until Justinian (Novels, 117. 10, and 134. 11), as a penalty forced the
parties into the retirement of a religious house. Constantine enumerated
the grounds on which repudiation should be deemed justifiable, and addi-
tions to the list were made by his successors. The penalties inflicted on
the guilty parties, as fixed by Honorius, were loss of dos and donatio
propter nuptias respectively. Repudiation without any such good reason
was still more severely punished with enforced retirement to a cloister^
and forfeiture of the whole property in favour partly of the cloister, partly
of the guilty person's statutory heirs, Nov. 134. 11.

A few words are necessary on the proprietary relations of husband
and wife. If the latter passed in manum, of course such property as
she had went absolutely with her to the husband ; but if the marriage
was unaccompanied by manus, and the wife was not in potestas, her
property remained as completely under her own control, and as free
from that of the husband, as if she had never married at all. Yet the
Roman law imposed on the husband the burden of all domestic expenses^
and. of the rearing of the issue ; and it was doubtless this inequality which

Tit. la] DE NUPTIIS. 133

filio variabatur, nostra processit decisio, qua permissum est ad
exemplum filiae furiosi filium quoque posse et sine patris

led to the institution of dos, which was a contribution from the wife or
some one on her behalf towards defraying the expenses of the married
state, 'ad matrimonii onera ferenda.' The obligation to provide a dos
was imposed on the father or paternal grandfather partly by the lex Papia
Poppaea, partly by imperial constitutions, and this whether the daughter or
granddaughter was in power or not, Cod. 5. 1 1. 7. The mother was under
no such obligation until after an enactment of Diocletian and Maximian,
and then only under exceptional circumstances, Cod. 5. 12. 14; the wife
was never bound to provide a dos herself at all. This led to a difference
of terminology : ' dos aut profectitia dicitur, id est, quam pater mulieris
dedit, aut adventitia, id est ea, quae a quovis alio data est ' Ulpian, reg.
6. 3 : dos receptitia was a kind of adventitia, being a dos given by some
third person other than a male ascendant on the express condition that it
should be restored to him or some one else (dotis receptio) at the termin-
ation of the marriage. There could be no dos unless the wedlock were
lawful, 'neque enim dos sine matrimonio esse potest; ubicunque igitur
matrimonii nomen non est, nee dos est ' Dig. 23. 3. 3, ' ibi dos esse debet,
nbi onera matrimonii sunt ' ib. 56. i. If the husband were a filiusfamilias,
the dos went to his pater, on whom the onera matrimonii fell. Anything
could serve as dos whereby the property of the husband (or of his
pater) was augmented— ownership, iura in re (e.g. usufruct), rights in
personam, or release of a debt.

The modes of constituting a dos were three in number : dos aut datur,
aut dicitur, aut promittitur. ' Dotem dicere potest mulier, quae nuptura
est, et debitor mulieris, si iussu eius dicat, institutus, parens mulieris
virilis sexus, per virilem sexum cognatione iunctus, velut pater, avus
patemus : dare, promittere dotem omnes possunt ' Ulpian, reg. 6. i and 2 ;
cf. note on Bk. iii. 15. pr. inf. The general rule was that the dos existed,
as such, only during the continuance of the marriage, and at its termination
must be restored to the woman or other person jfrom whom it proceeded,
Dig. 24. 3. 2 ; but this might be modified by special agreement, e. g. so as
to give the husband a life interest. The latter became owner of the dotal
property, and so entitled to its absolute management : ' si res in dotem
dentur, puto, in bonis mariti fieri' Dig. 23. 3. 7. 3; in other passages,
however, the wife's reversion is recognised as strictly qualifying the hus-
band's ownership : e. g. ' quamvis in bonis mariti dos sit, mulieris tamen
est' Dig. loc. cit 75; and in Cod. 5. 12. 20 Justinian expresses an
opinion that the dos belongs to the husband only ' legum subtilitate,' and
iure naturali is the property of the wife.

It was considered a matter of public interest to secure the return of
the dos at the termination of the marriage, as a provision for the wife, or
in case she married a second time. The husband often guaranteed this
by stipulatio, but apart from this there was an action for recovery (dotis
exaction § 12 inf.) called actio rei uxoriae, which was bonae fidei in cha-
racter : for Justinian's changes in this matter see Bk. iv. 6. 29 inf. The

134 INSTITUTIOJVUM LIBRl QUATTUOR. [Lib. I.

interventu matriinonium sibi copulare secundum datum ex
' constitutione modum.

1 Ergo non omnes nobis uxores ducere licet : nam quarun-
dam nuptiis abstinendum est. inter eas enim personas, quae
parentum liberorumve locum inter se optinent, nuptiae con-
trahi non possunt, veluti inter patrem et (ilium vel avum et
neptem vel matrem et filitim vel aviam et nepotem et usque
ad infinitum : et si tales personae inter se coierint, nefarias
atque incestas nuptias contraxisse dicuntur. et haec adeo ita
sunt, ut, quamvis per adoptionem parentum liberorumve loco
sibi esse coeperint, non possint inter se matrimonio iungi in
tantum^ ut etiam dissoluta adoptione idem iuris maneat :
itaque eam, quae tibi per adoptionem filia aut neptis esse
coeperit, non poteris uxorem ducere, quamvis eam eman-
cipaveris.

2 Inter eas quoque personas, quae ex transverso gradu cog-
nationis iunguntur, est quaedam similis observatio, sed non
tanta. sane enim inter fratrem sororemque nuptiae prohibitae
sunt, sive ab eodem patre eademque matre nati fuerint, sive
ex alterutro eorum. sed si qua per adoptionem sorbr tibi esse
coeperit, quamdiu quidem constat adoptio, sane inter te et
eam nuptiae consistere non possunt: cum vero per emanci*
pationem adoptio dissoluta sit, poteris eam uxorem ducere :
sed et si tu emancipatus fueris, nihil est impedimento nuptiis.
et ideo constat, si quis generum adoptare velit, debere eum
ante iiliam suam emancipare : et si quis velit nurum adoptare,

wife was also by an enactment of Justinian (Cod. v. 13. i. i) a privileged
creditor in case of the husband's insolvency, and the provisions of the lex
lulia de fundo dotali, with Justinian's amendments (Bk. ii. 8. pr. inf.), were
directed to the same purpose. For this whole subject see Sir H. Maine's
chapter on the history of the settled property of married women, in the
Early History of Institutions ; and for the counterpart of dos, the donatio
ante or propter nuptias, Bk. ii. 7. 3, and notes, inf.

§ 1. This and the following sections contain the rules of Roman law
prohibiting certain marriages on the ground of kinship between the
parties. It will be observed that adoptive was as effectual as natural
relationship to bar such unions; and the same incapacity resulted in
Justinian's time (Cod. 5. 4. 26) from ' cognatio spiritualis,' the relation of
godparent and godchild, and to a still larger degree under the Canon
Law ; see some remarks of Sir H. Maine, Early History of Institutions,
p. 240 sq.

Tit. 10.] DE NUPTIIS. 135

debere eum ante filium emancipare. Fratris vel sororis filiam 3
uxorem ducere non licet, sed nee neptem fratris vel sororis
ducere quis potest, quamvis quarto gradu sint. cuius enim
filiam uxorem ducere non licet, eius neque neptem per-
mittitur. eius vero mulieris, quam jSater tuus adoptavit, filiam
non videris impediri uxorem ducere, quia neque naturali
neque civili iure tibi coniungitur. Duorum autem fi-atrum 4
vel sororum liberi vel fi-atris et sororis iungi possunt. Item 5
amitam licet adoptivam uxorem ducere non licet, item
materteram, quia parentum loco habentur. qua ratione
verum est magnam quoque amitam et materteram magnam
prohiberi uxorem ducere. Adfinitatis quoque veneratione 6
quarundam nuptiis abstinere necesse est. ut ecce privignam
aut nurum uxorem ducere non licet, quia utraeque filiae
loco sunt. quod scilicet ita accipi debeat, si fuit nurus
aut privigna : nam si adhuc nurus est, id est si adhuc nupta
est filio tuo, alia ratione uxorem eam ducere non possis, quia
eadem duobus nupta esse non potest : item si adhuc privigna
tua est, id est si mater eius tibi nupta est, ideo eam uxorem
ducere non poteris, quia duas uxores eodem tempore habere
non licet. Socrum quoque et novercam prohibitum est uxorem 7
ducere, quia matris loco sunt, quod et ipsum dissoluta
demum adfinitate procedit : alioquin si adhuc noverca est, id
est si adhuc patri tuo nupta est, communi iure impeditur tibi
nubere, quia eadem duobus nupta esse non potest : item si
adhuc socrus est, id est si adhuc filia eius tibi nupta est, ideo
impediuntur nuptiae, quia duas uxores habere non possis.

§ 8. Gaius (i. 62 ; cf. Tac. Ann. 12. 5. 7, Suetonius, Claud. 26) says that
marriage between a man and his brother's daughter was legalised by
Claudius, who married Agrippina under his own rule, though it was
always unlawful to marry a niece by a sister. Diocletian first (Cod. 5.
4. 17) and then Constantine restored the ancient law, and branded mar«
riage with a brother's daughter with the name of incest, Cod. Theod. i. 2.

§ 4. Marriage between first cousins, which originally was unknown,
gradually came to be permitted, Livy 42. 34, Tac. Ann. 12. 6, and after
being prohibited by Theodosius I, was again made lawful by Arcadius and
HonorittSy Cod. 5. 4. 19.

§ 7. Marriage with a deceased wife's sister was forbidden by Constan-
tine's sons in the East, and by Valentinian, Theodosius, and Arcadius in
the West, Cod. 5. 5. 5.

136 INSTITUTIONUM LIBRI QUATTUOR. [Lib. I.

8 Mariti tamen filius ex alia uxore et uxoris filia ex alio maiito
vel contra matrimonium recte contrahunt, licet habeant fratrem

9 sororemve ex matrimonio postea contracto natos. Si uxor
tua post divortium ex alio filiam procreaverit, haec non est
quidem privigna tua : sed lulianus huiusmodi nuptiis abstinere
debere ait : nam nee sponsam fiiii nurum esse nee patris
sponsam novercam esse, rectius tamen et iure facturos eos, qui

10 huiusmodi nuptiis se abstinuerint. Illud certum est serviles
quoque cc^nationes impedimento esse nuptiis, si forte pater

11 et filia aut frater et soror manumissi fuerint. Sunt et aiiae
personae, quae propter diversas rationes nuptias contrahere
prohibentur, quas in libris digestorum seu pandectarum ex
veteri iure collectarum enumerari permisimus.

12 Si adversus ea quae diximus aliqui coierint, nee vir nee
uxor nee nuptiae nee matrimonium nee dos intell^itur.
itaque ii, qui ex eo coitu nascuntur, in potestate patris non
sunt, sed tales sunt, quantum ad patriam potestatem pertinet,
quales sunt ii, quos mater vulgo concepit. nam nee hi patrem
habere intelleguntur, cum is etiam incertus est : unde solent
filii spurii appellari, vel a Gfaeca voce quasi airopi^riv concepti
vel quasi sine patre filiL sequitur ergo, ut et dissoluto tali
coitu nee dotis exaction! locus sit. qui autem prohibitas
nuptias coeunt, et alias poenas patiuntur, quae sacris con-
stitutionibus continentur.

§ 10. Slaves were incapable of marriage^ (sensu legal!) of any kind, but
a permanent connection between two slaves, or a slave and a free person,
was called contubemium, Paul. sent. rec. 2. 19. 6. Here the natural rela-
tion of father and child was to some extent recognised : e. g. as iusta causa
manuroissionis under the lex Aelia Sentia, Gaius i. 19. Accordingly, when
slaves had become free, and thus capable of intermarriage, they were held
to be within the rules as to prohibited degrees.

§ 12. Children bom of a connection which was not a legal marriage,
either because it was prohibited by some positive rule, or because there
was no maritalis affectio,* were deemed, as a rule, to have no father :
* vulgo concepti dicuntur, qui patrem demonstrare non possunt, vel qui
possunt quidem, sed eum habent quem habere non licet, qui et spurii
appellantur napa rrfv <nropav* Dig. I. 5. 23. Such a connection when it
amounted to stuprum, adulterium, or incestus, was visited with severe
penalties by the lex lulia de adulteriis (Bk. iv. 18. 4 inf.) ; 'stuprum com-
mittit, qui liberam mulierem, consuetudinis causa, non matrimonii, con-
tinet, excepta videlicet concubina' Dig. 48. 5. 35. i. From this it will be
understood that concubinatus, a permanent connection without affectio

Tit. lo.] DE NUPTIIS. 137

Aliquando autem evenit, ut liberi, qui statim ut nati sunt 13
in potestate parentum non fiant, postea tamen redigantur in
potestatem. qualis est is, qui, dum naturalis fuerat, postea
curiae datus potestati patris subicitur. nee non is, qui a
muliere libera procreatus, cuius matrimonium minime legibus
interdictum fuerat, sed ad quam pater consuetudinem habuerat,
postea ex nostra constitutione dotalibus instrumentis com-
positis in potestate patris efficitur : quod et aliis, si ex eodem
matrimonio fuerint procreati, similiter nostra constitutio
praebuit.

maritalisy was a relation tolerated by law : the Romans say of it, ' per
l^;es nomen assumpsit' Dig. 25. 7. 3. i ; i.e. it has received by statute
a legal significance. In many respects it was assimilated to marriage :
thus Ulpian says (Dig. 32. 49. 4) 'parvi autem refert, uxori an concubinae
quis legety quae eius causa emta parata sunt : sane enim, nisi dignitate,
nihil mterest.' But the position was thought a degrading one to the
woman ; no 'honesta femina' could become a concubine without an express >/
'testation' Dig. 25. 7. 3. pr. ; otherwise the relation was regarded as
stnprum. A man could have but one concubine at a time, and concu*
binatus was incompatible with marriage : ' eo tempore quo quis uxorem
habet, concubinam habere non potest : concubina igitur ab uxore solo
dilectu separatur' Paul. sent. rec. 2. 20. The connection was terminated
by insanity of either party, except between patronus and liberta. The
paternity of the children was recognised to a considerable extent : they
were capable of legitimation, section 13 inf. ; and in the law of Justinian
they were entitled to maintenance from the father, and under certain
circumstances to succeed him on intestacy. By the latbr emperors con-
cobinatus was discouraged. The amount which the father might leave in
his wOl to the mother and children was strictly limited by Arcadius and
Honorius, but these restrictions were removed by Justinian where there
were no legitimate children. The practice was altogether forbidden in
the ninth century by Leo Philosophus. If a dos were given in a marriage
which violated the rules as to prohibited degrees, it escheated, when the
marriage terminated, to the Treasury, Cod. 5. 5. 4.

i 18. In the time of Gaius children who were not in potestas at birth^
owing to the nuptiae not being iustae, could sometimes be afterwards sub-
jected to it by causae probatio, by which Latins and peregrin!, with their
consorts, obtained the civitas : their matrimonium thereby became legiti-
mom, and even the children already born were subjected, by a process
analogous to that of postliminium, to the resulting potestas. Among such
caosae were the birth of a child to a Latin father (Gaius i. 66), and justi-
fiable mistake (ib. 67) ; see generaUy, Gaius i. 29-32, 66-75.

In Justinian's time, natural children could be subjected to potestas by
legitimation, and this in three ways, two of which are mentioned in the
text: (1) by oblatio curiae: i.e. the father made a son a decurio, or

138 INSTITUTIONUM LIBRl QUATTUOR. [Lib. I.

XL

DE ADOPTIONIBUS.

Non solum tamen naturales liberi secundum ea quae dixi-

mus in potestate nostra sunt, verum etiam ii quos adoptamus.

1 Adoptio autem duobus modi's fit, aut principal! rescripto aut

imperio magistratus. imperatoris auctoritate adoptamus eos

married the daughter to a decurio, in a provincial town. The decuriones
formed a kind of town council, or body, which had to bear the burden
of the magistracies (honores) and other municipal expenses (munera) ;
though an honourable, it was an extremely costly function, and one which
it had become practicaDy necessary to either force or bribe persons to
undertake; in the Theodosian Code (12. 18) they were prohibited from
living in the country, lest the flavour of freedom should tempt them to run
away altogether. (2) Per subsequens matrimonium. Constantine and
some of his successors had enacted that marriage of a man with his
concubine should legitimise their (natural) offspring, provided the man
had no legitimate descendants. Justinian abolished the latter restriction.
The closing words of this section occasion considerable difficulty. To
interpret them so as to make Justinian say that he had, by express
enactment, conferred on children bom after the execution of dotalia
instrumenta identical privileges with those bestowed on children bom
before (and so in concubinatu) seems absurd : for the former class of
children would be bom of lawful wedlock, and so be in potestate any how,
without any necessity for legislative interference. The meaning of ' prae-
buit ' seems rather to be ' has been the occasion of their obtaining,' the
sense being * we have hereby done a service not only to the children bom
before the marriage, but also to those bom afterwards : for these too
would have been illegitimate had it not been for our enactment, which has
induced the man to make a wife of the woman who before was merely his
concubine ; and if he had not been induced to do so, he would have con-
tinued to live in concubinatu' : cf. iit. i. 2 inf. (3) Per rescriptum prin-
cipis. Anastasius had permitted the legitimation of natural children in this
manner, but it was forbidden by Justinus and Justinian : the latter, how-
ever, reintroduced it by two Novels (74 and 89), but allowed it only where
the marriage was no longer possible, owing to the death or disappearance
of the woman, and the man had no legitimate descendants.

Legitimation, owing to its consequences, could not take place without
the child's consent ; * . . . dum et filii hoc ratum habuerint Nam si
solvere ius patriae potestatis, invitis filiis, non permissum est patribus,
multo magis sub potestatem redigere invitum filium et nolentem, sive per
oblationem ad curiam, sive per instrumentorum celebrationem, sive per
aliam quamlibet machinationem, tanquam sortem metuentem patemam
iustum non est' Nov. 89. 11. pr.

Tit. XI. 1. 'Adoptionis nomen est quidem generale: in duas autem

Tit. If.] DE ADOPTIONIBUS. 139

easve, qui quaeve sui iuris sunt, quae species adoptionis
dicitur adrogatio. imperio magistratus adoptamus eos easve,
qui quaeve in potestate parentium sunt, sive primum gradum
liberorum optineant, qualis est filius filia, sive inferiorem,
qualis est nepos neptis^ pronepos proneptis. Sed hodie ex 2
nostra constitutione, cum filius familias a patre natural! ex-
traneae personae in adoptionem datur, iura potestatis naturalis
patris minime dissolvuntur nee quidquam ad patrem adoptivum
transit nee in potestate eius est, licet ab intestato iura sue-

species dividitur, quorum altera adoptio similiter didtur, altera adrogatio.
Adoptantur filiifamilias : adrogantur qui sui iuris sunt' Dig. i. 7. i. i.
Both parties in either kind of adoption must be cives, and the adopter,
of course, must be sui iuris. In the parallel passage of Gains (i. 98, 99)
adrogation is said to take place populi auctoritate, and the term is ex-
plained : *• quod et is qui adoptat rogatur, id est, interrogatur an velit eum
quem adoptaturus sit iustum sibi filium esse, et is qui adoptatur rogatur an
id fieri patiatur, et populus rogatur an id fieri iubeat :' cf. Gell. v. 19 ; Cic.
pro. dom. 29. Adrogation was thus originally effected by a legislative act
of the comitia curiata, after a preliminary enquiry which was held by the
pontifices because the adrogatus changed his family gods and worship
(sacrorum detestatio) and this might conceivably be a reason for refusing
to sanction the proposed adrogation. Subsequently the thirty curiae
dwindled down to thirty lictors, who represented the authority of the
people, and under the early empire the assent of the pontifices appears to
have been the material element in the transaction (Tac. hist. i. 15).
About the middle of the second century (see Gains in Dig. i. 7. 21)
adrogation by imperial rescript came into vogue, and no doubt rapidly
supplanted the older method. From this time onward, instead of the
preliminary pontifical enquiry, there was an investigation by a magistrate
thereto commissioned by the emperor, of which the main purpose was the
protection of the person to be adrogated, especially against the danger of
adoption by some one much poorer than himself, whose motive might be
mere avarice: ' adrogationes non temere nee inexplorate committuntur.
Nam comitia arbitris pontificibus praebentur, quae curiata appellantur,
aetasque eius, qui adrogare vult, an liberis potius gignendis idonea sit,
bonaque eius, qui adrogatur, ne insidiose appetita sint, consideratur '
Gellius, noct. Att. 5. 10 : this was particularly the case in the adrogatio of
impabes, § 3 inf. The effects of adrogatio were to bring adrogatus under
the potestas of adrogator, and with him all those persons who had before
been in his power : all his property passed to the adrogator per universi-
tatem (Bk. iii. 10 inf.) until Justinian allowed the latter only the usufruct,
ib. § 2 : as to the debts of adrogatus see ib. § 3, Gaius iii. 82-84. Women
could not be adrogated until the rescript form was introduced, because
they could not appear in the comitia : Dig. i. 7. 21.
§ 2, Adoption stricto sensu, where a paterfamilias gives a person in

140 INSTITUTIONUM LIBRI QUATTUOR. [Lib. I.

cessionis ei a nobis tributa sunt, si vero pater naturalis non
extraneo, sed avo filii sui matemo, vel si ipse pater naturalis
fuerit emancipatus, etiam patemo, vel proavo simili modo
paterno vel materno filium suum dederit in adoptionem : in
hoc casu quia in unam personam concurrunt et naturalia et
adoptionis iura, manet stabile ius patris adoptivi et natural!
vinculo copulatum et legitimo adoptionis modo constrictum,
ut et in familia et in potestate huiusmodi patris adoptivi sit.
3 Cum autem impubes per principale rescriptum adrogatur,
causa cognita adrogatio permittitur et exquiritur causa adro-
gationis, an honesta sit expediatque pupillo, et cum quibusdam
condicionibus adrogatio fit, id est ut caveat adrogator personac
publicae, hoc est tabulario, si intra pubertatem pupillus de-
cesserit, restituturum se bona illis, qui, si adoptio facta non
esset, ad successionem eius venturi essent. item non alias
cmancipare eos potest adrogator, nisi causa cognita digni

his power in adoption to some one else, seems not to have been prac-
. tised in the early time, and the law provided no direct means for effecting
it : hence the complicated nature of the process described by Gaius. The
child was mancipated by the paterfamilias to the adopting party (in the
case of a son this had to be repeated three times, the first two mancipa-
tions being followed by manumission at the hands of the alienee, Gaius
i. 134), the object of Uiis being the exdnction of the patria potestas ; he
(or she) was then usually remancipated to the father, and by him finally
ceded in iure to the adoptive parent. Another mode, practised only in
the case of a son, was for the third mancipation to be made to some
person different from both the patres (pater fiduciarius), by whom he wi^
ceded in iure to the pater adoptans. Adoption being thus a judicial act
was said to take place ' imperio magistratus.' In the earlier periods the
consent of the child was unnecessary, but later this was altered, Dig.
I. 7. 5. For this complicated system Justinian substituted a single de-
claration of the parties before a judge, which was registered in the acta.
Cod. 8. 48. II. Until the changes referred to in this section, the effect of
adoption had been the translation of the adopted child from the potestas
and family of the one parent to those of the other : to his old father he
became a stranger, but acquired compensating rights of succession, etc.,
in his new family. Justinian enacted that in future these consequences
should ensue only where the adoptive father was a natural ascendant of
the child (adoptio plena) ; if the adoptive father was an extraneus
(adoptio minus plena), the child remained in his old family, and subject
to the same potestas as before, but acquired a right of succeeding his
adoptive father ab intestato, Cod. 8. 48. la
§ 8. The old rule was that an impubes could not be adrogated, Gell.

Tit. II.] DE ADOPTIONIBUS. I4t

emandpatione fuerint et tunc sua bona eis reddat. sed et si
deoedens pater eum exheredaverit vel vivus sine iusta causa
eum emancipaverit, iubetur quartam partem ei suorum bo-
norum relinquere, videlicet praeter bona, quae ad patrem
adoptivum transtulit et quorum commodum ei adquisivit
postea. Minorem natu non posse maiorem adoptare placet : 4
adoptio enim naturam imitatur et pro monstro est, ut maior
sit filius quam pater, debet itaque is, qui sibi per adro«
gationem vel adoptionem filium facit, plena pubertate, id est
decem et octo annis praecedere. Licet autem et in locum 5
nepotis vel neptis vel in locum pronepotis vel proneptis vel
deinceps adoptare, quamvis filium quis non habeat. Et tarn 6
filium alienum quis in locum nepotis potest adoptare, quam
nepotem in locum filii. Sed si quis nepotis loco adoptet vel 7

5. 19, Ulpian, reg. 8. 5, no doubt for the same reason as women ; then it
was permitted in special cases, apparently by imperial favour (Gaius i.
102), and eventually an epistola of Antoninus Pius (Gaius ib.) allowed it
generally, though only after inquiry held, and under conditions : thus all
the pupil's g^uardians had to sanction the act. Cod. 5. 59. 5, and, as is
mentioned in. the text, the adrogator had to give security for restoration of '
adrogatus' property to his next heirs (legitimi or pupillariter substituti) if
he died below puberty ; this limit being fixed because at that date the
pupillary substitutions became void, and the child, if he had not been
adrogated, would have been able to make a will for himself. If on attain-
ing puberty he could show that the adrogation had been detrimental to
him he could demand emancipation, Dig. i. 7. 33. The tabularius to
whom security was given was a servus publicus. Dig. i. 7. 18, Cod. 8. 48.
2: c£ Gothoifredus ad Cod. Theod. 8. 2. i, and Cod. la 69. 3. The
fourth part of the adrogator's property, to which adrogatus became entitled
under the circumstances mentioned in the text, was called quarta Antonina
or quarta divi Pii, and the right to claim it seems to have been extin-
guished by the attainment of puberty.

% 4. The principle adoptio naturam imitatur, at least in this applica-
tion, was of comparatively late growth, for Gaius says (i. 106) ' sed et ilia
quaestio, an minor natu maiorem natu adoptare possit, utriusque adop-
tionis conmiune est. Cicero (pro domo 13. 14) accuses Clodius of having
been adrc>gated by a person younger than himself, though in c. 13 he says
it was done with the approval oi the pontifices : cf. Suetonius, Tib. 2.
The doubt was settled by the time of Modestinus, who says that in either
fonn of adoption the adoptans must be older by at least eighteen years,
Dig. I. 7. 40. I. For the definition of this age as plena pubertas cf.
Paul. sent, rec 3. 4* «, Dig- 4o- *• '3 : 35- i- loi* 2.

§ 6. o^ yap avayoff hrtfrBoi rfj raf ci TJj wiirji wapa r» <f)vo'iK^ narpi
Theoph.

14* JNSTITUTIONUM LIBRI QUATTUOR. [Lib. I,

quasi ex eo Alio, quern habet iam adoptatum, vel quasi ex
illo, quern naturalem in sua potestate habet : in eo casu et
Alius consentire debet, ne ei invito suus heres adgnascatur.
sed ex contrario si avus ex Alio nepotem dat in adoptionem,

8 non est necesse filium consentire. In plurimis autem causis
adsimiiatur is, qui adoptatus vel adrogatus est, ei qui ex
legitimo matrimonio natus est. et ideo si quis per impera*'
torem sive apud praetorem vel apud praesidem provinciae
non extraneum.adoptaverit, potest eundem alii in adoptionem

9 dare. Sed et illud utriusque adoptionis commune est, quod
et hi, qui generare non possunt, quales sunt spadones, adoptare

10 possunt, castrati autem non possunt Feminae quoque adop-
tare non possunt, quia nee naturales liberos in potestate sua
habent : sed ex indulgentia principis ad solatium liberorum

11 amissorum adoptare possunt. Illud proprium est illius adop-
tionis, quae per sacrum oraculum fit, quod is, qui liberos in
potestate habet, si se adrogandum dederit, non solum ipse
potestati adrogatoris subicitur, sed etiam liberi eius in eiusdem
fiunt potestate tamquam nepotes. sic enim et divus Augustus

§ 8. One could not readopt an adoptive child whom one had emanci-
pated or given in adoption, Dig. i. 7. 37. i, though this could be done
with a natural child, in which case the latter was, in most respects, as if
he had never left the family : but in relation to his own children, who
had remained in their grandfather's power, his position was different :
'. . . mortuo (avo) nepos in patris non revertitur potestatem' Dig. i. 7. 41.
Again, adoptive did not, like natural children, retain the ius liberorum
after emancipation, Bk. iii. 1. 1 1 inf. For other minor differences between
a natural and an adoptive child cf. Tit. 25 pr. inf., fragm. Vat. 169, 196,
Tac. Ann. 15. 19.

§ 9. After Justinian's changes, described on § 2 supr., it was of course
impossible for a spado to adopt plen^, because none could do this but a
natural ascendant, and ex vi termini he could have no issue, but he could
adrogate, Dig. i. 7. 40. 2.

§ 10. The earliest instance of this quasi-adoption by women of which
we know is that of Galba by his stepmother, Suet. Galba 4 : it was first
generally permitted by Diocletian and Maximian, in Cod. 8. 48. 5. Chil-
dren thus adopted could of course not be in potestas, but the act produced
the relation of parent and child, and thus conferred on the latter rights
of intestate succession, and to bring the querela inofticiosi testament!
(lik. ii. 18 inf.), if passed over in the adoptive mother's will.

§ 11. For the adoption of Tiberius by Augustus cf. Tac. Ann. 4. 57,
Suet. Tiberius 15.

.Tit, 11.] DE ADOPTIONIBUS. 143

non anteTiberium adoptayit, quam is Germanicum adoptavit:
ut protinus adoptione facta incipiat Germanicus August! nepos
esse, Apud Catonem bene scriptum refert antiquitas, servi si 12
a domino adoptati sint, ex hoc ipso posse liberari. unde et
nos eruditi in nostra constitutione etiam eum servum, quern
dominus actis intervenientibus iilium suum nominaverit, libe-
rum esse constituimus, licet hoc ad ius filii accipiendum ei non
suffictt.

§ 12. It is not clear whether Cato was thinking of adrogation of a slave
by his own dominus, or of the master's giving him in adoption to a third
person, though certainly the words read in favour of the former view.
According to that, his argument would seem to have been as follows : —
a slave can become free by a resolution of the people, without manu-
mission by bis dominus : consequently adrogation by his master (which
took place popuJi auctoritate) must make him free too. But possibly
Cato was thinking of the second case, which many of the older jurists
regarded as quite lawful : alioquin si iuris ista antiquitas servetur, etiam
servus a domino per praetorem dari in adoptionem potest, idque ait
(Sabinus) plerosque iuris veteris auctores posse fieri scripsisse, Gellius
5. 19. Adoption (until Justinian) involved a vindicatio, as the adoptans
claimed the adoptee as his son from his present father, and we may sup-
pose that the jurists referred to by Gellius inferred from this vindicatio
a tacit vindicatio * in libertatem,' and treated the giving in adoption as
equivalent to a manumission by vindicta. Possibly, however, Cato was
thinking of the slave being first mancipated by his master to another
person, and then being claimed from the latter by the former as his son.
The words of Gellius strongly suggest that under the later law slaves could
not be given in adoption by their masters. The constitution referred to
by Justinian is m Cod. 7. 6. 10.

The acta intervenientia were the official records of a magistrate or
judge. Even under the Republic it had not been unusual for magis-
trates to cooperate in private dispositions by entering a minute of them
in their records (gesta et acta), which entry served as irrefragable evidence
of the transaction. Later, a special effect was in some cases given to such
entries by statute (e. g. in testaments, and in the appointment of procura-
tors), and after Constantine ' insinuatio ' or entry in the acta was required
by statute to give validity to many dispositions. Thus in Dig. 2. 4. 17 we
have apud acta promittere (cf. Bk. ii. 7. 2 inf.) : actis mandatum insinuare
(Bk. iv. II. 3 inf.) : actorura testificatione conficere donationem (Cod. 8.
54. 27) : apud acta contestari (Dig. 50. 2. 7. 3) : interrogari et profiteri
(Cod. 7. 16. 24) ; and judicial appeals were also registered in the acta,
apud or inter acta appellare, Dig. 49. i. 2. The right to take acta be-
longed to municipal magistrates (Paul. sent. rec. i, 3. i. Cod. i. 56.2) as
well as to magistrates with jurisdiction.

144 INSTITUTIONUM LIBRT QUATTUOR. [Lib. I.

XII.

QUIBUS MODIS lUS POTESTATIS SOLVITUR.

Videamus nunc, quibus modis ii, qui alieno iuri subiecti
sunt, eo iure liberantur. et quidem servi quemadmodum
potestate liberantur, ex his intellegere possumus, quae de
servis manumittendis superius exposuimus. hi vero, qui in
potestate parentis sunt, mortuo eo sui iuris fiunt. sed hoc
distinctionem recipit. nam mortuo patre sane omnimodo filii
filiaeve sui iuris efficiuntur. mortuo vero avo non omnimodo
nepotes neptesque sui iuris fiunt, sed ita, si post mortem avi
in potestatem patris sui recasuri non sunt : itaque si moriente
avo pater eorum et vivit et in potestate patris sui est, tunc
post obitum avi in patris sui potestate fiunt : si vero is, quo
tempore avus moritur, aut iam mortuus est aut exiJt de po-
testate patris, tunc hi, quia in potestatem eius cadere non
1 possunt, sui iuris fiunt Cum autem is, qui ob aliquod male-
Tit. XH. What Justinian says about grandchildren not becoming sui
iuris on the grandfather's death, if their own father is in the same potestas
with them, must be qualified by what has been said above on Tit. ii. 8
in remarking upon Dig. i. 7. 41.

§ L Gaius (i. 128) speaks of condemnation to loss of ci vitas as taking
the form of aquae et ignis interdictio, which originally was merely a
solemn confirmation of voluntary exile by which an accused citizen
withdrew himself from a criminal prosecution, and only subsequently
came to be used, apart from that, as a form of punishment : see Livy,
25. 4 ; 26. 3 ; Cic. pro Caec. 33. 34. Deportatio in insulam, a sentence of
banishment for life either to an island or to some confined space on the
mainland (Dig. 32. i. 3) originated with Augustus (Dion. 55. 20), and was
a very common form of punishment with his successors : Tac. Ann. 3. 68 ;
4. 13. 21 ; 6. 30. Deportation of either child or father put an end to potes-
tas, because (Tit. 9. 2 supr.) * ius potestatis proprium est civium Romano-
rum:' by losing his ci vitas the child lost his capacity of being in potestas,
the father that of exercising it In case of restoration by imperial fevour,
as mentioned in the text, it seems that at first only such rights were
recovered as were expressly specified (Vitellius ab exilio reversis iura
libertorum concessit, Tac. Hist 2. 92), and this was true in particular of
patria potestas : ' in insulam filio deportato, hacque ratione vinculo
patemae potestatis exempto, si postea ex indulgentia divi Alexandri, ut
proponis, reditus in patrium solum praecedensque dignitas restituta sit,
potestas tamen patria repetita non videtur' Gordian in Cod. 9. 51. 6;
but this must probably be taken to have been overruled by Constantine

Tit. 13.] QUIBUS MODIS lUS POTESTATIS SOLVITUR. 145

ficium in insulam deportatur, civitatem amittit, sequitur ut,
quia eo modo ex numero civium Romanoram toUitur, pcrinde
acsi mortuo eo desinant liberi in potestate eius esse, pari
latione et si is> qui in potestate parentis sit, in insulam de- ;
portatus fuerit, desinit in potestate parentis esse, sed si ex
indulgentia principali restituti fuerint, per omnia pristinum
statum recipiunt. Relegati autem patres in insulam in po- 2
testate sua liberos retinent: et e contrario liberi relegati in
potestate parentum remanent. Poenae servus effectus Alios 3
in potestate habere desinit. servi autem poenae efficiimtur,
qui in metallum damnantur et qui bestiis subiciuntur. Filius 4
familias si militaverit, vel si senator vel consul fuerit factus,
manet in patris potestate. militia enimvel consularis dignitas
patris potestate iilium non liberat. sed ex constitutione
nostra summa patriciatus dignitas ilico .ab imperialibus codi-
cillis praestitis a patria potestate liberat. quis enim patiatur

in Cod. loc. cit. 139 * in quaestione testamenti, quod deportati filius re-
meante patie fecisset, remotis Ulpiani atque Pauli notis Papiniani placet
valere sententiam, ut in patris iilius sit potestate, cui dignitas ac bona
restituta sunt.' It will be observed that here the termination of the
patria potestas was accompanied by capitis deminutio. In one or two
anomalous cases^ however, the pater was deprived of his potestas as
a punishment, without the child being capite minutus: e.g. for ex-
posing his children. Cod. 8. 52. 2, for compelling them to prostitute
themselves, Cod. il. 40.6, and for contracting an incestuous marriage,
Nov. 12. 2.

§ 2. Rel^^ation was banishment unattended with any loss of civil
rights : ' relegati in insulam in potestate suos liberos retinent, quia et alia
omnia iura sua retinent: tan turn enim insula eis egredi non licet: et
bona quoque sua omnia retinent praeter ea, si quae eis adempta sunt '
Dig. 48. 22. 4. So too Ovid says (Trist 4. 9. 11) 'Omnia . . . Caesar
mihi iura reliquit, £t sola est patria poena carere mea.'

§ 8. For the poenae servus see on Tit. 3. 4 supr. Loss of liberty of
course entailed loss of citizenship, whether the master were ' poena ' or
any one else. Tit. 16. i inf.

§ 4. There had always been certain dignities, by the attainment of
which a child in power was released therefrom without undergoing ^
capitis deminutio : thus a son who became flamen Dialis, and a daughter
who became virgo Vestalis (Gains iii. 114, i. 130) were released from
power, though still remaining members of their old agnatic family. The
Patriciate of the later Empire seems to have originated in the old prac-
tice of calling persons of advanced age pater as a compliment or token
of respect, Horace, £p. 1. 6. 54-5 5f Nc/mov . . . waripa avrbv aei 6voyuai»¥

L

146 TNSTITUTIONUM LIBRI QUATTUOR. [Lih. I.

patrem quidem posse per emancipationis modum suae potes-
tatis nexibus filium relaxare, imperatoriam autem celsitudinem
non valere eum quern sibi patrem elegfit ab aliena eximere
5 potestate ? Si ab hostibus captus fuerit parens, quamvis
servus hostium fiat, tamen pendet ius liberorum propter ius.
postliminii : quia hi, qui ab hostibus capti sunt, si reversi
fuerint', omnia pristina iura recipiunt. idcirco reversus et
liberos habebit in potestate, quia postliminium fingit eum
qui captus est semper in civitate fuisse : si vero ibi decesserit>.
exinde, ex quo captus est pater, filius sui iuris fuisse videtur-
ipse quoque filius neposve si ab hostibus captus fuerit, similiter
dicimus propter ius postliminii ius quoque potestatis parentis
in suspenso esse, dictum est autem postliminium a limine et
post, ut eum, qui ab hostibus captus in fines nostros postea
pervenit, postliminio reversum recte dicimus. nam limina
sicut in domibus finem quendam faciunt, sic et imperii finem

Dio Cass. 63. 17, *ad Ulpianum praefectum praetorio et patentem meum '
Alexander in Cod. 4. 65. 4. Besides the Patriciate, Justinian attached
this effect also to elevation to sundry other high dignities, especially that
of consul and bishop, Nov. 81. pr. 3.

6. The ius postliminii was an institution by which rights which under
ordinary circumstances would have been destroyed (by captivity) were
merely suspended for an indefinite time, until the occurrence of some
event. It has two aspects, passive and active. In the former, a person
returning, or a thing recovered, from captivity is restored to the power
in which he or it was previous to the capture: e.g. free persons in
power (Bk. ii. i. 17 inf.), slaves, land, ships of war, horses and mules,
Dig. 49. 15. 2. 3 and 19. 10, Cic. Top. 8, In its active aspect, a person
who has been in captivity recovers all his previous rights, provided (i)
that this was the intention of his return, Dig. 49. 1 5. 5. 3 : (2) that he did
not desert, or voluntarily surrender, or was not surrendered by the state :
i. e. he must have been bona fide captured with arms in his hands : and
(3) that the return did not take place during an armistice, Dig. 49. 15*
19. 1. In Gains' time the exact position of children whose father died in
captivity was not settled : ' si vero 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, dubitari potest ' 1. 129.' The deriva*
tion of the word given in this section originated with Scaevola, and was
accepted by Festus, Boethius, and Isidorus, but rejected by Sulpicius,
Cic. Top. 8.

For the recovery of his tutela by a tutor under the ius postliminii
see Tit. 20. 2. inf. ; and for the application of the doctrine to testaments,'
Bk. ii. 12. 5 inf.

Tit. 13.] QUIBUS MODIS lUS POTEST ATIS SOLVITUJR. 147

Kmen esse veteres volu'erunt. hiric et limes dictus est quast
finis quidam et terminus, ab eo postliminium dictum, qui%
eodem limine revertebatur, quo amissus erat. sed et qui victis
hostibus recupcratur, postliminio rediisse existimatur. Prae-6
terea emancipatione quoque desinunt liberi in potestate
parentum esse, sed ea emahcipatio antea quidem vel per
antiquam legis observationem procedebat, quae per imagi*
narias venditiones et intercedentes manumissiones celebra-
batur, vel ex imperiali rescripto. nostra autem providentia et
hoc in melius per constitutionem reformavit, ut fictione pristina
explosa recta via apmd competentes indices vel magistratus
parentes intrent et filios suos vel filias vel nepotes vel neptes

ac deinceps sua manu dimitterent. et tunc ex edicto praetoris

■ ■ ..... , , ^

§ 6. Emancipation was not efTectual unless three conditions were satis-^
fied: (i) The consent of the pater; the general rule is stated in § 10 inf.,
to which a few exceptions are noticed in Dig. i. 7. 33. 33 ; 27. 10. 16, 2 ;
35. I. 92 ; 37. 12. 1. 3 ; ib. 5. (2) The consent of the child : it was sufficient,
however, if he did not protest against the emancipation : ' solvere ius
potestatis invitis filils non est permissum patribus ' Nov. 89. 1 1 pr. (3) Due
performance of the act of emancipation. This, as described by Gain?
(i. 132), was effected by the pater's mancipating the child to a friend fidu-
dae causa, who remancipated him to the pater, and by the latter's then
manumitting him, like a slave, vindicta. If it were a son three mancipa-
tions were necessary, owing to the rule of the XII Tables, ^ si pater filium
ter venumduit, a patre filius liber esto : ' after each of the two first man- '
dpadons he was manumitted by the alienee, whereby he again fell under
the patria potestas ; the third mancipation was made cum fiducia, and was
followed by remancipation to, and manumission by, the emancipating
&ther, unless the remancipation were dispensed with, and the child were
actually manumitted by the alienee, usually under an agreement to hold
the iura patronatus in trust for the father ; see on 6k. iii. 2. 8 inf. For
this clumsy form Justinian substituted (Cod. 8. 49. 6) a simple declaration
before a judge or magistrate, which was registered in the acta. < Recta
via,' in the text, is explained by Cod. 8. 49. 6 *sine sacro rescripto,* a
reference to emandpation by imperial rescript, which was introduced by
Anastasius (Cod. loc. cit 5), and was mainly resorted to when absence of
the child prevented the old form from being employed. For the effect
of emandpation on filiusfamilias' property see Bk. ii. 9. 2, and notes inf. :
he was allowed to retain his peculium profectitium unless it was ex-
pressly taken from him, fragm. Vat. 261. Of the iura patronatus, said
in the text to have been given to the emancipating pater by the edict,
the most important was the right of succession, guaranteed by the
praetor through the system of bonorum possessio ; see Bk. iii. 2. 6 inf.,
and Dig. 37. 12. i.

L %

148 INSTITUTIONUM LIBRI QUATTUOR. [Lib. 1.

in huius filii vel iiliae, nepotis vel neptis bonis, qui vel quae a

parente manumissus vel manumissa fuerit, eadem iura prae-

stantur parenti, quae tribuuntur patrono in bonis liberti : et

V. praeterea si impubes sit filiusvel filia vel ceteri, ipse parens ex

7 manumissione tutelam eius nanciscitur. Admonendi autem
$umus liberum esse arbitrium ei, qui jRlium et ex eo nepotem
vel neptem in potestate habebit* fUium quidem de potestate
dimittere, nepotem vero vel neptem retincre: et ex diverse
filium, quidem in potestate retinere, nepotem vero vel neptem
manumittere (eadem et de pronepote vel pronepte dicta esse

8 intellegantur), vel omnes sui iuris efficere. Sed et si pater
filium, quem in potestate habet, avo vel proavo naturali se-
cundum nostras constitutiones super his habitas in adoptionem
dederit, id est si hoc ipsum actis intervenientibus apud com-
petentem iudicem manifestavit, praesente eo qui adoptatur et
non contradicente nee non eo qui adoptat, solvitur quidem ius
potestatis patris naturalis, transit autem in huiusmodi paren-
tem adoptivum, in cuius persona et adoptionem plenissimam

9 esse antea diximus. Illud autem scire oportet, quod, si nurus
tua ex filio tuo conceperit et filium postea emancipaveris vel
in adoptionem dederis praegnante nuru tua, nihilo minus
quod ex ea nascitur in potestate tua nascitur : quod si post
emancipationem vel adoptionem fuerit conceptum, patris sui

10 emancipati vel avi adoptivi potestati subicitur : et quod neque
naturales liberi neque adoptivi ullo paene modo possunt cogere
parentem de potestate sua eos dimittere. \

§ 9. This is only an illustration of the rule that the status of children
bom of lawful wedlock was determined at the time of their conception,
because they followed the condition of their father : ' hi qui legitime con-
cipiuntur ex conceptionis tempore statum sumunt ' Gaius i. 89. On the
other hand, illegitimate children followed the condition of their mother,
being ' spurii,' Tit. 10. 12 supr., and accordingly in the time of Gaius their
condition was determined by her status at the time of birth : for the later
modification of this rule see Tit. 4, and note supr.

If the potestas were terminated in some mode by which the filius-
familias underwent capitis deminutio, he ceased to belong to his previous
agnatic family, and thereby lost all his rights of intestate succession and
guardianship to its members : consequently the distinction between
modes in which this occurred and those in which it did not is important.
The former are three in number : loss of libertas or civitas (apart from
the ius postliminii), emancipation, and subjection to some other power^

Tit. 13J DE TVTELIS. 149

XIIL
DE TUTELIS.

Transeamus nunc ad aliam divisionem. nam ex his per-
sonis, quae in potestate non sunt, quaedam vel in tutela sunt

whether potestas, manos, or mancipium (e. g. the latter as produced in
noxal surrender before Justinian).

Tit. XTTT. Tutela was originally conceived rather as a right than as
a duty (whence the phrase 'tutelam nancisci,' Tit. 12. 6. supr., Tit. 19.
pr. inf.), but in Justinian's time it had become a publicum munus (Tit. 25.
pr. inf.), a function which the state required all its qualified members to
discharge if called upon, and from which they could be excused only
on definite grounds enumerated in Tit. 25. inf. Women, however, pere*
grini, slaves, minors (Tit. 25. 13. inf.) and soldiers (ib. 14) were absolutely
incapacitated from serving the office, though under the earlier Emperors
this rule was sometimes relaxed by special favour on behalf of the mother
or grandmother of the ward : and in the time of Justinian it was settled
diat a modier or grandmother could after the death of her husband
demand the tutela of her children or grandchildren, provided (i) she
engaged 'apud acta' (see on Tit. 11. 12 supr.) not to marry again;
(2) resigned the benefits of the SC. Velleiannm and other enactments
passed in favour of the weaker sex, and (3) gave an express hypothec
to the children over her whole property. A second marriage caused
immediate forfeiture of the tutela.

Under the later law, the leading idea in the conception of tutela is
the puplPs imperfect capacity of disposition, to supply which is the
guardian's main duty (Tit. 21 inf.). According to modem ideas, in-
capacity of disposition results only from deficiency of intellectual powers,
and this was the view which prevailed in the later Roman law ; but it
seems clear that in the earlier period the purpose of tutela was far less
the protection of the ward than that of the ward's family : it was regarded
as a right to look after his property, and to prevent any alienation by
which it would leave the funily in case of his decease before the tutela
determined : hence the association between rights of guardianship and of
succession: 'quo tutela redit, eo hereditas pervenit, nisi cum feminae
heredes intercedunt ' Dig. 50. 17. 73. pr. This conception of tutela is well
illustrated by an institution which had become obsolete before Justinian,
the ' perpetua tutela mulierum.' Justinian speaks only of impuberes as
under guardianship (§ i), but the earlier Roman law maintained in the
interest of the family the fiction of a woman's imperfect capacity of
disposition, and retained her, if sui iuris, under the supervision of a
tutor throughout her life: Mtaque si quis filio filiaeque testamento
tutorem dederit, et ambo ad pubertatem pervenerint, filius quidem
desinit habere tutorem, filia vero nihilominus in tutela permanet ' Gains
I 145. This mulierum tutela, at least in Gaius' time, was of two kinds.

J 50 INSTITUTIONUM LIBRI Q UA TTUOR. [Lib. I.

vel in curatione, quaedam neutro iure tenentur. videamus
igitur de his^ quae in tutela vel in curatione sunt : ita enim

Its main object was to secure to the patron and the agnates their right to
the woman's property at her death, not to protect the woman herself;
thus, where the tutela was legitima, i. e. vested in the agnates or patron,
she could neither make a will, manumit a slave, alienate res mancipi,
bring a legio actio or iudicium legitimum, nor incur a contrs^ctual obliga-
tion without their auctoritas or sanction, Gains i. 192, Ulp. reg. 11. 27.
The XII Tables had appointed as a woman's guardian her patron if she
were libertina or had been emancipated : failing a patron, her nearest
agnates — all of these being the persons first in succession to her property
on her decease. But, besides the tutela of the patron and agnates
(tutores legitimi), other forms in course of time came into existence
{'alterius generis tutores ' Gains i. 194), viz. (i) tutores optivi, selected by
the woman herself under a power given by the will of a husband in whose
manus she had been ; (2) tutores fiduciarii, in case of a freebom woman's
manumission e mancipio (Gains i. iiS a) : (3) tutores cessicii ; (4) tutores
Atiliani, appointed by the magistrates. Testamentary guardians were as
old as the XII Tables (note on § 3 inf.) ; but in relation to women they
resembled the four kinds just specified in possessing but the shadow of
those powers of veto and control which belonged to a tutor legitimus.
The sanction of a tutor who was not legitimus was required to validate the
woman's dispositions, wherever that of a statutory guardian would have
been necessary: 'tutoris auctoritas necessaria est mulieribus quidem in
his rebus : si lege aut legitimo iudicio agant : si se obligent, si civile
negotium gerant, si libertae suae permittant in contubemio alieni servi
morari, si rem mancipi alienent ' Ulpian, reg. 11. 27 ; in 20. 15 he adds
the execution of a will. But in all these cases the sanction was merely
formal : ' pupillorum pupillarumque tutores et negotia gerunt, et auc-
toritatem interponunt: mulierum autem tutores auctoritatem duntaxat
interponunt' Ulpian, loc. cit. 25, and the auctoritas of a non-statutory
guardian could be demanded by the woman as a nuitter of right : * loqui-
mur autem de his scilicet feminis quae non in legitima parentium aut
patronorum tutela sunt, sed de his quae alterius generis tutores habent,
qui etiam inviti coguntur auctores fieri' Gains ii. 120^ 'saepe etiam
{tutor] invitus auctor fieri a praetore cogitur ' i. 190.

It was in respect of making a will that the woman was most restricted,
the original rule being that no woman could do this who had not sub*
jected herself to capitis deminutio by coemption, followed by remanci-
pation and manumission, or, in other words, by a fictitious marriage.
Gains i. 115a; she thus obtained a tutor fiduciarius, who authorized
the testament 'dids causa,' ib. 190, though in all this business the in*
terests of the patron or agnates were completely secured, for without their
sanction at the first the coemption could not have taken place at all.

The only independent women who were exempted by the older law
from perpetual guardianship were the vestal virgins, on whom this privi-

Tit. 13.] DE TUTELIS. 151

intellegemus ceteras personas, quae neutro lure tenentur. ac
prius dispiciamus de his quae in tutela sunt. Est autem 1
tutela, ut Servius definivit, ius ac potestas in capite libero ad

lege had been bestowed by the XII Tables, Gaius i. 145 ; but after the
fall of the Republic important changes were made, especially in respect
of testaments. The lex lulia and Papia Poppaea, A.D. 9, released from
guardianship all women who had borne a certain number of children (ius
iiberorum), and this boon must have benefited a considerable proportion
of married women who were sui iuris. Not many years later a law of
Claudius entirely abolished the legitima tutela of agnates over women,
Gaius i. 157, and by a senatusconsult passed under Hadrian they were
enabled to make a will without the necessity of a coemption, though the
auctoritas of the guardian was not dispensed with. Thus, in the time of
the classical jurists, every woman who was sui iuris, and who was not
a vestal virgin or exempted under the lex Papia, must have a guardian :
but his auctoritas was not requisite for the validity of all dispositions, and
even where it was he could not refuse it unless he were a patronus or
parens manumissor. The whole institution in fact had ceased to have
any significance, and the jurists themselves seem to have thought it an
absurdity : ' feminas vero perfectae aetatis in tutela esse fere nulla
pretiosa ratio suasisse videtur : nam quae vulgo creditur, quia levitate
animi plerumque decipiuntur, et aequum erat eas tutorum auctoritate
regi, magis speciosa videtur quam vera' Gaius i. 190. It is not, how-
ever, till after Diocletian that guardianship of women entirely disap-
pears. Cf. Mr. Posters note on Gaius i. 189, and Savigny, vermischte
Schriften i. 10.

§ L Thoi^h the power of the tutor was data ac permissa by the civil
law, tutela was not regarded by the Romans as an institution iuris
civilis : * impuberes autem in tutela esse naturali iure conveniens est, ut
is qui perfectae aetatis non sit, alterius tutela regatur' Tit. 20. 6 inf.,
^impuberes quidem in tutela esse omnium civitatium iure contingit'
Gaius i. 189, the latter contrasting guardianship in this respect with
patria potestas. Mr. Poste, on the other hand, ascribes it to ius civile,
on the ground that no institution containing numerical definitions can
be supposed to belong to natural law, if this is the less arbitrary element
of the positive code. But this does not show that the institution is not
iuris gentium, but only that each state fills up voids in the 'natural
theory ' by rules of its own, e. g. as to age, the persons who are to act,
their precise powers, etc.

A guardian's responsibilities commenced immediately he was aware
that the office had been cast upon him: ^ex quo innotuit tutori se
tutorem esse, scire debet periculum tutelae ad eum pertinere' Dig.
26. 7. 5. 10, and if he had a valid excuse it had to be stated within the
time allowed by law, or else it was of no avail. Dig. ib. i. I. The main
purpose of the tutela impuberum, at least in the later Roman law, wajs
the supplementing of the ward's imperfect capacity of disposition, and

1 5a INSTITUTIONUM LIBRl QUATTUOR. [Lib. I.

tuendum eum, qui propter aetatem se defendere nequitj iure

2 civili data ac permissa. Tutores autem sunt, qui earn vim ac
potestatem habent, ex qua re ipsa nomen ceperunt. itaque
appeliantur tutores quasi tuitores atque defensores, sicut

3 aeditui dicuntur qui aedes tuentur. Permissum est itaque
parentibus liberis impuberibus, quos in potestate habent, testa-
mento tutores dare, et hoc in filio filiaque omnimodo procedit ;
nepotibus tamen neptibusque ita demum parentes possunt
testamento tutores dare, si post mortem eorum in patris sui
potestatem recasuri non sunt, itaque si iilius tuus mortis tuae
tempore in potestate tua sit, nepotes ex eo non poterunt

the guardian's functions related- to both his person and his property.
He was responsible for his maintenance and education, so iax as. his
means sufficed, unless exempted from this by special direction of the
appointing parent or magistratie. In relation to the property, his sphere
of action depended gready on the pupil's age. If he were infans (for
which see on Bk. iii. 19. 10 inf.) he was incapable of any act or dis*
position, and the tutor was said ' negotia pupilli gerere * and to have the
administratio. In this respect his freedom of acdon was largely cur-
tailed by imperial legislation : ^ imperatoris Severi oradone prohibid
sunt tutores et curatores praedia rustica vel suburbana distrahere (sell) '
Dig. 27. 9. I. pr. Constantine extended the prohibidon sdll further:
'iam ei^o venditio tutoris nulla sit nisi interpositione decreti, exceptis
duntaxat his vestibus, quae detritae usu, aut comiptae servando servari
non potuerint. Animalia quoque supervacua minorum, quin veneant, non
vetamus ' Cod. 5. 37. 22. 6 and 7. Justinian forbade tutors and curators
to intermeddle in the ward's affairs until they had caused a complete
inventory of his property to be made, Cod. 5. 51. 13. a. But on ceasing
to be infans the pupil was held to acquire a power of volition, and thereby
capacity of disposition ; yet his lack of intellectual powers was thought
likely to betray him into transactions by which he might be injured, and
thus the rule was established, that for all acts by which the pupil could
possibly injure his proprietary interests the guardian's auctoritas was
necessary, though the former was regarded as himself the acting party,
especially in dispositions which were iuris civilis, and therefore ' procura-
torem non recipiebant ; ' see Tit. 21. pr. inf., and cf. the note on Bk. iii,
19. 10 referred to. The relation between guardian and pupil was quasi
ex contractu, Bk. iii. 27. 2 inf., q. v.

§ 8. The right of the paterfamilias to appoint by his will tutors to such
females in his power as would become sui iuris on his decease, and to
such males in the same position as were impuberes, was established, if
not for the first time conferred, by the XII Tables : ' testamento quoque
nominatim tutores dati confirmantur eadem lege duodedm tabularumf
his verbis : uti legassit super pecunia tutelave suae rei, ita ius esto : qui

Tit. 13.] DE TUTELIS. 153

testamento tuo tutorem habere, quamvis in potestate tua
fuerint ; scilicet quia mortuo te in patris sui potestatem re-
casuri sunt. Cum autem in compluribus aliis causis postumi 4
pro iam natis habentur, et in hac causa placuit non minus
postumis quam iam natis testamento tutores dari posse, si
modo in ea causa sint, ut, si vivis parentibus nascerentur, sui
et in potestate eorum fierent. Sed si emancipato filio tutor 5
a patre testamento datus fuerit, confirmandus est ex sententia
praesidis omnimodo, id est sine inquisitione.

tutores dativi appellantur' Ulpian, reg. 11. 14. The intended tutor must
have testamentifkctio with the testator, and Latini luniani could not be
thus appointed, Gains i. 24. It would seem that a testamentary guardian
could at one time decline the office, or even lay it down after acceptance,
Ulpian, reg. 11. 17 : this right is not mentioned in Justinian, which marks
the transition from the conception of tutela as a right to that of a munus
publicum. For the formulae by which testamentary guardians were
appointed see Gaius i. 149 ; for the effect of placing such appointment
before the institution of the heir, Gaius ii. 231 : cf. Tit. 14. 3 inf. A
testamentary guardian might be appointed by codicils testamento con-
firmati, Dig. 26. 2. 3 : ib. 8. pr.

§ 4. Postumi liberi are children bom after the execution of the will :
whether after the death of the testator or in his life-time is immaterial.
A paterfamilias could not give a testamentary guardian to a posthumous
grandson, i^ supposing he had died immediately after the execution of
the will, the grandson would have been bom in the potestas of his own ^
father, the testator's son : for in that case, the father being in the same
potestas, the child would not have been a suus heres to the testator.
Guardianship was only intended as a substitute for patria potestas, and
the existence of the latter barred the possibility of the former.

§ 6. There were five other cases in which magisterial confirmation of
a testamentary appointment was required, viz. (i) where a father gave by
will a guardian to his natural child. Dig. 26. 3. 7 ; (2) where the appoint-
ment was made in unconfirmed codicils or in an invalid will, Dig. ib.
I- I ; (3) where the appointment violated the SC. Libonianum by being
written by the guardian himself; here a 'praevia inquisitio* was neces-
sary. Dig. 26. 2. 29 : 48. 10. 18. I ; (4) where a mother attempted to give
a testamentary guardian to her child, the appointment would be confirmed
only * ex inquisitione,' and only if the child were instituted heir in the will,
Dig. 26. 3. 2 ; (s) if a man appointed a testamentary guardian to the
child of some other person, the appointment would be confirmed ex
inquisitione if the child were instituted heir in the will, and had no other
property. Dig. ib. 4. 5. In all these cases, or at any rate where an inqui-
sitio was held, the appointment was deemed magisterial rather than
testamentary. Dig. 26. a. 26. 2 : 48. 10. 18. i.

154 INSTITUTIONUM LIBRI QUATTUOR. [Lib. I.

XIV.
QUI DARI TUTORES TESTAMENTO POSSUNT.

Dari autem potest tutor non solum pater familias, sed

1 etiam filius familias. Sed et servus proprius testamento
cum libertate recte tutor dari potest, sed sciendum est eum
et sine libertate tutorem datum tacite et libertatem directam
accepisse videri et per hoc recte tutorem esse, plane si per
errorem quasi liber tutor datus sit, aliud dicendum est servus
autem alienus pure inutiliter datur testamento tutor : sed ita
* cum liber erit ' utiliter datur. proprius autem servus inutiliter

2 eo modo datur tutor. Furiosus vel minor viginti quinque annis
tutor testamento datus tutor erit, cum compos mentis aut maior
viginti quinque annis fuerit factus.

3 Ad certum tempus et ex certo tempore vel sub condicione
vel ante heredis institutionem posse dari tutorem non dubitatur.

4 Certae autem rei vel causae tutor dari non potest, quia per-
sonae, non causae vel rei datur.

Tit. XIV. The two main rules of testamentary appointments are,
(i) there must be testamentifactio (Bk. ii. 19. 4 inf.) between testator
and the intended guardian, Dig. 26. 2. 21, and (2) the person must be
clearly specified, Bk. ii. 20. 27 inf.

§ 1. Ulpian (Dig. 26. 2. 10. 4) and Paulus (Dig. ib. 32. 2) both say that
the appointment of a servus proprius as tutor implied a gift of freedom.
But this was not so if the slave was instituted heir until Justinian's own
time, Tit. 6. 2 supr., Cod. 6. 27. 5. i.

The words ' libertatem directam ' are possibly a reference to Dig. 26. 2.
28. 1 ' verbis fidei commissi manumissus non iure tutor testamento datur.'
' But it seems doubtful whether this was really the law : see Cod. 7. 4. 10,
Dig. 26. 2. 10. 4.

Ulpian says in Dig. 26. 2. 10. 4 that even an unconditional (pur^) ap-
pointment of a servus alienus as testamentary guardian implied the con-
dition *cum liber erit,* and a gift of fidei-commissaria libertas * si voluntas
apertissime non refragetur.' It seems impossible to reconcile this with
the text.

§ 2. Until the minor reached twenty-five or the lunatic recovered his
senses, a tutor or curator would be appointed by the magistrate ad
interim, Tit. 23. 5 inf.

§ 4. It is possible that the rule ' certae rei vel causae tutor dari non
potest ' is true only of testamentary appointments (cf. the analogy in in-
stitution : * heredis institutio ex certa re inutiliter fit ') : at any rate there
are many cases in which a guardian was appointed certae causae, Gaius

Tit. 15.] DE LEGITIMA ADGNATORUM TUTELA. 155

Si quis filiabus suis vel filiis tutores dederit, etiam postumae 5
vel postumo videtur dedisse, quia filii vel filiae appellatione et
postumus et postuma continentur. quid si nepotes sint, an
appellatione filiorum et ipsis tutores dati sunt ? dicendum est,
ut ipsis quoque dati videantur, si modo liberos dixit, ceterum
si filios, non continebuntur : aliter entm filii, aliter nepotes
appellantur. plane si postumis dederit, tarn filii postumi quam
ceteri liberi continebuntur.

XV.

DE LEGITIMA ADGNATORUM TUTELA.

Quibus autem testamento tutor datus non sit, his ex lege
duodecim tabularum adgnati sunt tutores, qui vocantur legitimi.
Sunt autem adgnati per viriiis sexus cognationem coniuncti, 1
quasi a patre cognati, veluti frater eodem patre natus, fratris
filius neposve ex eo, item patruus et patrui filius neposve ex

i. 1 50 'vel in omnes res, vel in unam forte aut duas optare/ib. 176 'ad
heieditatem adeundam,' ib. 1/8. 180 'dotis constituendae causa,' Ulpian,
reg. II. 22 'ad nuptias contrahendas,' ib. 24 for a specific suit, cf. Tit. 21.
3 inf. : fragm. Vat. 229, Dig. 26. 5. 9 : 27. i. 21. 2 and 4, Cod. 5. 62. 11 :
$. 44. 3 and 4. Some passages even go so far as to suggest that the tutor
was given rei rather than personae, 'non numerus pupillorum plures
tutelas facit, sed patrimoniorum separatio' Dig. 27. i. 3, 'non rebus dun-
taxat, sed etiam moribus' Dig. 26. 7. 12. 3. One explanation is that
originally the guardian was appointed to the person and whole patrimony
of the ward, but* that gradually the practice grew up of allowing him to ^
look after specific matters only; this being thought 'inelegans,' and
inconsistent with the true nature of the institution, was discouraged, and
the later lawyers inclined to support the rule stated in the text, treating
the charge of specific matters as cura rather than tutela; cf. Tit. 21. 3 inf.
*non praetoritts tutor, ut olim, sed -curator in eius locum datur,* Tit. 23. 2
* curator enim et ad certam causam dari potest' It cannot, however, be
inferred from the word * personae ' that the guardian's main duty was the
maintenance and education of the pupil : for this is absolutely untrue of
the tutela mulierum, and even with impuberes he bad, generally speaking,
nothing to do with the child's education, which was managed by the
nearest relatives under magisterial supervision : the tutor had only to
provide the means in proportion to the pupil's property, as determined
by the magistrate.

Tit. XV. Agnates are also defined in Bk. iii. 2. i, from which we may
apply here too the rule 'non tamen omnibus simul adgnatis dat lex
hereditatem (tutelam), sed iis qui tunc proximiore gradu sunt cum certum
esse coeperit aliquem intestatum decessisse,' for which cf. also Tit. 16. 7

156 INSTITUTIONUM UBRI QUATTUOR. [Lib. I.

eo. at qui per feminini sexus personas cognatione iunguntur,
non sunt adgnati, sed alias naturali iure cognati. itaque
amitae tuae filius non est tibi adgnatus, sed cognatus (et
invicem scilicet tu illi eodem iure coniungeris), quia qui

2 nascuntur patris, non matris familiam sequuntur. Quod '
autem lex ab intestato vocat ad tutelam adgnatos, non hanc
habet significationem, si omnino non fecerit testamentum is
qui poterat tutores dare, sed si quantum ad tutelam pertinet
intestatus decesserit. quod tunc quoque accidere intellegitur,

3 cum is qui datus est tutor vivo testatore decesserit. Sed
adgnationis quidem ius omnibus modis capitis deminutione
plerumque perimitur : nam adgnatio iuris est nomen. cogna-

inf. The definition, to be made perfectly accurate, requires both exten*
sion and restriction. It must be extended so as to include ii) adoptive
relations, e.g. brothers and uncles : for these cannot properly be said to
be cognati at all if cognates are persons related naturali iure, by the tie
of blood : and (2) women who by passing in manum came to be filiae
loco to their husbands, and thus (by a process analogous to adoption)
became agnates to their own children and to their husband's agnates in
general. It must, on the other hand, be restricted so as to exclude
cognates who, even though per virilis sexus personas coniuncti, had by
capitis deminutio left their (agnatic) family. This last error of Gaius'
and Justinian's definition is avoided by Ulpian, reg. 11. 4, who adds
* eiusdem familiae.' Agnates, in fact, are persons related to one another
through males, whether the relationship be natural, adoptive, or quasi-
adoptive as produced by manus, and between whom no barrier has
been interposed by capitis deminutio ; and agnation is the tie between
two or more persons which is based on the potestas or manus to which
all of them would be subject if the head of the familia were still alive :
see Maine, Ancient Law pp. 146-8. For the reason why the descendants
of a woman were not agnates of her blood relations see on Tit. 9. 3 supr.

The praetorian changes in the law of intestate succession (between
which and the tutela legitima there was such an intimate connection)
were not accompanied by corresponding changes in the law of guardian-
ship. By Nov. 118. c. 4 and 5, Justinian revolutionized the former branch
of law by substituting title by cognation for title by agnation, and modified
the law of guardianship in accordance therewith, cognatic relationship
alone in future conferring a claim to tutela legitima.

§ 3. This passage is borne out by Bk. iii. i. 11 inf. ' naturalia enim iura
civilis ratio perimere non potest,* but (as is observed by Mr. Poste on
Gaius i. 158) is almost completely contradicted by Tit. 16. 6 inf., which
expressly (and truly) says that the two higher kinds of capitis deminutio
destroyed naturalia iura based on cognatio no less than civilia iura based
on adgnatio.

Tit. i60 DE CAPITIS MINUTIONE. 157

tionis vero ius non omnibus modis commutatur, quia civilis
ratio civilia quidem iura-corrumpere potest, naturalia vero non
utique. »

XVI.

DE CAPITIS MINUTIONE.

Est autem capitis deminutio prions status commutatio.
eaque tribus modis accidit: nam aut maxima est capitis
deminutio aut minor, quam quidam mediam vocant, aut
minima. Maxima est capitis deminutio, cum aliquis simul 1
et civitatem et libertatem amittit. quod accidit in his, qui
servi poenae efficiuntur atrocitate sententiae, vel liberti ut
ingrati circa patronos condemnati, vel qui ad pretium par-
ticipandum se venumdari passi sunt. Minor sive media est 2

m. XVX By status, in a general sense, the Romans denote a man's
position in respect of l^al rights, and this is usually determined by
reference to three ' momenta,' libertas, civitas, and familia, the importance
of which in this connection was so great that they came to be regarded
as specific status themselves, cf. p. 87 supr. Hence the dictum that no
man can have a status unless, to begin with, he is free ; and the statement
of Paulus, servDe caput nullum ius habet, practically adopted in § 4 inf., is
amplified by Modestinus, Dig. 4. 5. 4, who adds, ^ hodie enim incipit statum
habere : ' a slave, until he is manumitted, has no more a ' status ' than he
has a ' ius ' or ' caput.' It is in this specific sense that status is used here :
by defining capitis deminutio as prioris status commutatio Justinian
means that when a man 'capite minuitur' he either (i) loses the freedom
which he possessed before, or (2) though retaining his freedom, ceases to
be a citizen of Rome, or finally (3) while remaining liber and civis, ceases
to belong to the familia of which he has hitherto been a member. Simi-
larly caput, in the expression capitis deminutio, bears a close analogy to
status in this specific sense : it means the rights a man enjoys in virtue of
being free, or a dvis, or a member of a fieunily : by being ' capite deminu-
tns' he loses some or all of these rights.

§ 1. For some modes of capitis deminutio maxima which were obsolete
in Justinian's time see Tit 3. 4 supr. : to them may be added surrender
by the pater patratus to a foreign state for an offence against International ^
Law, Livy 5. 36. For the cases mentioned here in the text see the note
referred to.

§ 2. For deportatio and aquae et ignis interdictio see on Tit. 12. i supr.
Capitis deminutio media occurred also when a Roman citizen became
dvis of another town, e. g. a civitas peregrina or a Latin colony, between
jrbich and Rome there was not a complete community of dvil rights, Cic.
pro Balbo 1 1. 12, pro Caec. 33. 34, de Orat. i. 40. In his note on Gaius i.

158 INSTITUTIONUM LIBRI QUATTUOR. [Lib. !•

capitis deminutio, cum civitas quidem amittitur, libertas vero
retinetur. quod accidit ei, cui aqua et igni interdictum fuerit,
ivel.ei, qui in insulam deportatus est. Minima est capitis
deminutio, cum et civitas et libertas retinetur, sed status
hominis commutatur. quod accidit in his, qui, cum sui iuris

161 Mr. Poste supposes that there was a capitis deminutio media when
a Latinus was degraded to peregrinus by interdiction or deportation,
and this is not improbable, as Latinus had many of the rights of civita§
(see on Tit. 5. 3 supr.), but there is no. express authority for the state^
ment.

§ 8. The essence of capitis deminutio minima is the leaving, by the
minutus, of his previous agnatic family. It is defined in this pass£^
(which is taken from Gains i. 162) as a status commutatio, a change of
status unaccompanied by any loss of liberty or citizenship. Similarly
Paulus says in Dig. 4. 5. 11' cum et libertas et civitas retinetur, familia
tantum mutatur, minimam esse capitis deminutionem constat,' ib. 3
'liberos, qui adrogatum parentem sequuntur, placet minui caput, quum
in aliena potestate sunt, et quum familiam mutaverint,' ib. 7 'tutelas
etiam non amittit capitis minutio : sed legitimae tutelae ex duodedm
tabulis intervertuntur eadem ratione, qua et hereditates exinde legitimae,
quia adgnatis deferuntur, qui desinunt esse familia mutati ; ' cf. * minima
capitis deminutio est, per quam et civitate et libertate salva status dun*
taxat hominis mutatur' Ulpian, reg. 11. 13. The practical coincidence
of Gaius and Ulpian with Paulus in describing capitis deminutio minima
as a mere change, and not necessarily a change for the worse, involving
a degradation, and the fact that they differ from him only in being less
clear and emphatic in their definition, is noteworthy, because writers
who take a different view upon this subject from that here adopted
contend that Paulus is the only jurist by whose writings the latter is
supported.

In the law of Justinian's time, then, capitis deminutio minima occurred
in the following cases : (i) where a person sui iuris became alieni iuris
by adrogatio or legitimatio. It may be objected that a person who is
adrogated or legitimated may stand by himself in the world, and there-
fore have no familia to leave : but to this it may be replied that the
Roman law regarded such a person as having a familia in virtue of his
capacity to create one by marrying and begetting children, * . . . idemque
eveniet et in eo qui emancipatus est : nam et hie sui iuris effectus pro*
priam familiam habet' Dig. 50. 16. 195. 2. (2) Where a person alieni
iuris entered a new family, e. g. the filiusfamilias given in adoptio plena^
and the children of an adrogatus or legitimatus. (3) Where a person
alieni became sui iuris by emancipation. For a discussion of another
view upon this subject see Excursus I at the end of Book I, and for the
effect of capitis deminutio minima on adrogatus' property, debts, etc. see
Bk. iii. 10. 3 and notes inf.

Tit. i6.] DE CAPITIS MINUTIONE. 159

fuerunt, coeperunt alieno luri subiecti esse, vel contra^ Servus 4
autem manumissus capite non minuitur, quia nullum caput
habuit. Quibus autem dignitas magis quam status permutatur, 5
capite non minuuntur : et ideo senatu motos capite non minui
constat.

Quod autem dictum est manere cognationis ius et post 6
capitis deminutionem, hoc ita est, si minima capitis deminutio
interveniat: manet enim cognatio. nam si maxima capitis
deminutio incurrat, ius quoque cognationis perit, ut puta ser-

§ 5. So status and dignitas are distinguished by Ulpian in Dig. i. 5. 20
* qui furere coepit, et statum et dignitatem in qua fuit et magistratum et
potestatem videtur retinere, sicut rei suae dominium retinet.'

Every Roman citizen was held in virtue of his citizenship to possess
a certain dignity called his existimatio, which remained untarnished and
unimpaired «o long as he did nothing to incur reproach from his fellow
burghers, but which was capable of being either entirely destroyed or
partially lost : ^ existimatio est dignitatis lUaesae status, legibus ac mori-
bus comprobatus, qui ex delicto nostro auctoritate legum aut minuitur
aot oonsumitur ' Dig. 50. 13. 5. 1. Existimatio was said to be ' consumed'
if its foundation, the dvitas, were forfeited by either maxima or media
capitis deminutio. Dig. 50. 13. 5. 3. In other cases, where a man had v'
been guilty of such conduct as was held to justify a deprivation of some
portion of his civil rights and privileges, he was said to be branded with
ignominia or nota, and his existimatio to be ' diminished : ' *' minuitur
existimatio quotiens manente libertate circa statum dignitatis poena
plectimur, sicuti cum relegatur quis, vel cum ordine movetur, vel cum
prohibetur honoribus publicis fungi, vel cum plebeius fustibus caeditur,
vel in opus publicum datur, vel cum in eam causam quis incidit, quae
edicto perpetuo infamiae causa enumeratur' Dig. 50. 13. 5. 2, The oldest
form of minutio existimationis can be traced back to an enactment prob*
ably comprised in the XII Tables, which declared citizens who committed
certain crimes improbi and intestabiles : ^ cum lege quis intestabilis
iubetur esse, eo pertinet, ne eius testimonium recipiatur, et eo amplius,
ut qtiidam putant, neve ipsi dicatur testimonium ' Dig. 28. i. 26. Simi-
larly a man's existimatio was affected, though perhaps less permanently,
by the subscriptio or nota censoria, for which see General Introd. p. 22.
The conmionest cause of minutio, however, was infamia, an institution
doubtless known to the old civil law, but which, as may be gathered from
the passage cited supr. from the Digest, was raised to an honourable
prominence by the care with which the praetor used it as an instrument
of morality and justice, and defined in the edict the circumstances under
which it would attach, and the penalties and disabilities which it would
entail, for both of which see on Bk. iv, 16. 2 inf. For a discussion of the
question whether infamia ever operated as a capitis deminutio see Mr.
Poste's note on Gaius i. 161.

l6o INSTITUTIONUM LIBRI QUATTUOR. [Lib. I.

vitute alicuius cognati, et ne quidem, si manumissus fuerit,
recipit cognationem. sed et si in insulam deportatus quis sit,
7 cognatio solvitur. Cum autem ad adgnatos tutela pertineat,
non simul ad omnes pertinet, sed ad eos tantum, qui proximo
gradu sunt, vel, si eiusdem gradus sint, ad omnes.

XVII.

DE LEGITIMA PATRONORUM TUTELA.

Ex eadem lege duodecim tabularum libertorum et liber-
tarum tutela ad patronos Hberosque eorum pertinet, quae et
ipsa legitima tutela vocatur : non quia nominatim ea lege de
hac tutela cavetur, sed quia perinde accepta est per inter-
pretationem, atque si verbis legis introducta esset. eo enim
ipso, quo hereditates libertorum libertarumque, si intestati
decessissent, iusserat lex ad patronos liberosve eorum per-
tinere, crediderunt veteres voluisse legem etiam tutelas ad eos
pertinere, cum et adgnatos, quos ad hereditatem vocat, eosdem
et tutores esse iussit et quia plerumque, ubi successionis est
emolumentum, ibi et tutelae onus esse debet, ideo autem
diximus plerumque, quia, si a femina impubes manumittatur,
ipsa ad hereditatem vocatur, cum alius est tutor.

Tit. XVII. Where a libertus civis died intestate, having no suus heres
(the meaning of intestati in the text), the patron took his property as (by
a fiction) his nearest agnate, and the tutela went in the same way on the
analogy of the legitima adgnatorum tutela. But when a Latinus lunianus
(who could neither have a suus heres nor make a will) died, the patron
took the property by a different title, iure peculii (Bk. iii. 7. 4 in£). Hence
the succession and the tutela did not necessarily go together : ^ unde si
ancilla ex iure Quiritium 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 competit : nam ita lege lulia cavetur' Gaius i. 167.
This is another exception to the rule here stated by Justinian, * plerumque
ubi successionis est emolumentum, ibi et tutelae onus esse debet' If a
free person in mancipio were manumitted while impubes by his superior,
there having been no fiducia (note on Tit. 12. 6 supr.) between the latter
and the father, the superior became patronus, and thus tutor legitimus.
For some remarks on the ' interpretatio ' of the XII Tables and other old
statutes see General Introd. p. 49 supr.

Tit. 19,] DE FWUCIARIA TUTELA. 161

XVIII.

DE LEGITIMA PARENTIUM TUTELA.

Exemplo patronorum recepta est et alia tutela, quae et ipsa
legitima vocatur, nam si quis filium aut filiam, nepotem aut
neptem ex filio et deinceps impuberes emancipaverit, l^itimus
eorum tutor erit,

XIX.

DE FIDUCIARIA TUTELA.

Est et alia tutela, quae fiduciaria appellatur. nam si parens
filium vel filiam, nepotem vel neptem et deinceps impuberes
manumiserit, legitimam nanciscitur eorum tutelam : quo de-
functo si liberi virilis sexus extant, fiduciarii tutores fillorum
suorum vel fratris vel sororis et ceterorum efficiuntur. atqui
patrono legitime tutore niortuo, liberi quoque eius legitimi
sunt tutores : quoniam Alius quidem defuncti, si non esset a
vivo patre emanclpatus, post obitum eius sui iuris efficeretur
nee in fratrum potestatem recideret ideoque nee in tutelam,
libertus autem si servus mansisset, utique eodem iure apud
liberos domini post mortem eius futurus esset. ita tamen ii ad
tutelam vocantur, si perfectae aetatis sint. quod nostra con-
gtitutio generaliter in omnibus tutelis et curationibus observari
praecepit.

Tit. XVm. It does not seem that any express statute had conferred
on the parens manumissor the tutela of children whom he emancipated
while impuberes. It is said ^ vicem legitimi tutoris sustinet' Dig. 26. 4. 3.
10, Megitimus tutor habetur' Gaius i. 172 ; the latter stating as the reason
' quia non minus huic quam patronis honor praestandus est.'

Tit. XIX. Tutores fiduciarii are the male agnatic children of the parens
manumissor, Gaius i. 175. As long as the old form of emancipation was
in use the term was also applied to the extraneus manumissor, i. e. the
person into whose mancipium the coemptionator or pater had conveyed
the woman or child in power with the fiducia ' ut manumittatur,' and (on
his death) to his male agnatic descendants proximiore gradu, Gaius i. 166,
Ulpian, reg. 1 1. 5. As Justinian expressly enacted that the father who
emancipated a child in the new form introduced by him should have pre-
dsely the same rights as the old parens manumissor (Bk. iii. 2. 8 inf.), the
legitima parendum tutela and the tutela fiduciaria of the parens manu-
missor's children were untouched : nor were they affected by the reforms
of Nov. 118, which introduced a legitima cognatorum tutela only as a sub-
stitute for the old tutela of the agnates.

M

1 6a INSTITUTIONUM LIBRI QUATTUOR. [Lib. I^

XX.

DE ATILIANO TUTORE VEL EO QUI EX LEGE lULIA
ET TITIA DABATUR.

Si cui nullus omnino tutor fuerat, ei dabatur in urbe

quidem Roma a praetore urbano et maiore parte tribunonim

plebis tutor ex lege AtiHa, in provinciis vero a praesidibus

1 provinciarum ex lege lulia et Titia. Sed et si testamento

Tit. XX. The business of appointing guardians to persons who re-
quired them, and who were not already provided) was not an ordinary
function of any magistrate, and could therefore be exercised only in virtue
of special statutory authorization : ' tutoris datio neque imperii est neque
iurisdictionis, sed ei soli competit cui nominatim hoc dedit vel lex vel
senatusconsultum vel princeps' Dig. 26. i. 6. 2. The lex Atilia (the date
of which was certainly earlier than 188 B.C., cf. Livy 39. 9) conferred this
power, in the city of Rome, on the praetor urbanus acting in conjunction
with the majority of the tribuni plebis (for other examples of joint action
among the tribunes cf. Cic. in Verr. 2. 2. 41, Gellius 7. 19, Valerius Max.
6. 1. 7. 5, 4) ; by the lex lulia et Titia B.C. 31 it was extended to the prae-
sides of provinces within their respective jurisdictions. Guardians thus
appointed were called dativi, a term applied by Gains (i. 154) and Ulpian
(reg. II. 14) to those appointed in a testament. Under Justinian they
were thus given in the following cases : (i) When there was no other tutor,
testamentary, statutory, or fiduciary. (2) When the person to whom the
tutela naturally belonged was excluded by an ' excusatio necessaria,' or
had some valid ground for exemption, Gains i. 182, Ulpian, reg. il. 23.
(3) The cases referred to in § i of this Title. (4) Where a tutor was
incapacitated, acquired a ground of excuse, or was removed on suspicion
after .actually entering on his functions : but if a testamentary guardian
died, or was capite minutus, the tutela devolved on the legitimi. Dig. 26.
2. II. 3 and 4. (5) In one or two cases where an exception was allowed
to the rule tutorem habenti tutor non datur, viz, (a) if there were several
testamentary guardians of whom one died or was capite minutus a substi-
tute was given by the magistrate. Dig. 26. 2. 11. 4; {b) where the tutor
legitimus was a minor, deaf, dumb, insane, or absent : for a case obsolete
under Justinian see Tit 21. 3 inf.

§ L When the effect of a disposition is made to depend on the occur-
rence or non-occurrence of some uncertain event in the future, even
where that event is the ascertainment of some past or present fact, it is
said to depend on a condition : where it is an occurrence, the condition
is positive or affirmative : where a non-occurrence, it is negative. It may
depend on a condition in two ways ; a man may say, ' my disposition
shall not take effect unless so and so occurs,' in which case the condition
is suspensive ; or, ' my disposition shall take effect at once, but that efl^ct
shall be stopped and cancelled if so and so occurs,' in which case the

Tit. 20.] DE ATIUANO TUTORE, ETC. 163

tutor sub condicione aut die certo datus fuerat, quamdiu
condicio aut dies pendebat ex isdem legibus tutor dari
poterat. item si pure datus fuerit, quamdiu nemo ex testa-
condition is resolutive. The importance of the latter class is mainly in
relation to dispositions involving a transfer of property, in particular to
the law of sale : the condition referred to in the text is suspensive. Some
dispositions were by the Roman law completely void if made to depend
on a condition or dies (for which see below) ; ' actus legitimi, qui non
redpiunt diem vel condicionem, velut emancipation acceptilatio, heredi-
tatis aditio, servi optio, datio libertatis, in totum vitiantur per temporis
vel condicionis adiectionem' Dig. 50. 17. ^j. When the condition was
satisfied or fulfilled, it was said, condicio existit : when it was certain
that it had not been fulfilled, conditio deficit. Negative conditions are
fulfilled when the &ct or event whose non-occurrence is contemplated
has become impossible ; and in some cases a condition was regarded as
fulfilled when in point of fact it had not been : (i) Mure civili receptum
est, quotiens per eum, cuius interest condicionem non impleri, fiat quo-
minus impleatur, perinde haberi ac si impleta condicio fuisset ' Dig. 50.
17. 161. (2) If the fulfilment of the condition is prevented by some other
person's arbitrarily refusing consent or co-operation, 'plerumque haec
condicio, si uxorem duxerit, si dederit, si fecerit, ita accipi oportet, quod
per eum non stet, quominus ducat, det aut faciat ' Dig. 28. 7. 23 : or if the
person entitied on fulfilment is prevented from fulfilling by other acci-
dental circumstances.
As regards the effect of a condition annexed to a disposition :

(a) If suspensive, the disposition, until it is fulfilled, is there and in
existence, and does not come into existence only on its fulfilment : accord-
ingly, it may have legal consequences even though, through failure of the
condition, it is subsequently annihilated : e. g. a second wilU in which the
heir is instituted conditionally, revokes a prior one, even though the con-
dition is never fulfilled and the will as a whole thus never takes effect.
Dig. 28. 3. 16. But rights conferred by the disposition are merely condi-
tional, and can have no practical effect until the condition is fulfilled :
speaking precisely, there is only a chance of having the right, which
chance by the fulfilment of the condition becomes an actuality : a con-
tingent becomes a vested right.

(b) If resolutive, the disposition has presently all the effects which it
would have, had it been unconditional, though these are liable to be can-
celled and rendered null by the future fulfilment of the condition.

On the fulfilment of a suspensive condition, the disposition which has
hitherto been conditional becomes unconditionally operative, and its
operation is carried back to the time at which it was made : ' cum enim
semel condicio extitit, perinde habetur ac si illo tempore, quo stipulatio
interposita est, sine condicione facta esset' Dig. 20. 4. 11. i : this rule is
expressed in the formula ' condicio existens ad initium negotii retrotra-
bitur,' On the fulfilment of a resolutive condition, the whole effect of the

M %

l64 INSTITUTIONUM UBRI QUATTUOR. [Lib. I.

mento heres existat, tamdiu ex isdem legibus tutor petendus
erat, qui desinebat tutor tss^, si condicio existeret aut dies

2 veniret aut heres existeret. Ab hostibus quoque tutore capto
ex his legibus tutor petebatur, qui desinebat esse tutor, si is
qui captus erat in civitatem reversus fuerat: nam reversus

3 recipiebat tutelam iure postliminii. Sed ex his legibus pupillis

disposition is nullified, the condition operating retroactively so as to place
the parties as far as possible in the position in which they would have
been* had the disposition never been made ; Dig. 6. i. 41 ; 13. 7. 13 pr. ;
18. 2. 4. 3. For the effect of impossible conditions see on Bk. ii. 14. 10
inf. and cf. Bk. iii. 19. li.

By dies, in connection with dispositions, is meant the fixing of a time,
which may mark either {a) the conmiencement of a right : (b) its termina-
tion : or {c) both its termination and commencement, i. e. its duration :
' vel ex die incipit obligatio aut confertur in diem : ex die, veluti Kalendis
Martiis dare spondes ? in diem autem, usque ad Kalendas Manias dare
spondes?' Dig. 44. 7. 44. i (the language in Bk. iii. 15. 2 inf. differs from
this and is inaccurate). The dies may be limited by express reference to
the calendar (dies certus) or to some event certain to happen, though
when it will actually happen is uncertain : e. g. (as in wills) ^ after my
death,' or ' a year after my death ' (dies incertus quando) : finally dies
and condicio may be combined : e. g. ^ three months after so and so shall
happen, if it ever shall * (dies incertus an et quando). Dies ex quo may
be described as suspensive, dies in quem as resolutive. In the latter,
the disposition is completely operative, and has its full effect until the
dies comes, after which it has no effect whatever : e. g. the grant of a
usufruct till this day five years. In dies ex quo, on the other hand, the
disposition has no jural effect until the dies arrives ; ' dies adiectus efficit
ne praesenti die debeatur' Dig. 45. i. 41. i. Still, it is certain that the
jural effect will come into existence sooner or later ; ' pecunia, quam in
diem certum dan stipulamur . . . cenum est eam debitum in, licet post
tempus petatur' Gains iii. 124, cf. Dig. 7. 9.9. 2 ; so that it is not improper
to speak of the right as already existing : as a vested right, though it may
not be realized as yet in possession. It is this which distinguishes dies
from condicio : it does not, like the latter, leave it uncertain whether a
legal relation will be established or not, but it fixes the relation, only post-
poning the time at which the right can be realized in action : see Bk. iii.
15. 2 inf. 'quod in diem (ex die.^) stipulamur, statim quidem debetur
sed peti prius quam dies veniat non potest : ' so too Dig. 45. i. 46. pr.
* centesimis Kalendis dari utiliter stipulamur, quia praesens obligatio est,
in diem autem dilata solutio.' For other passages in which condicio and
dies occur together see Bk. iii. 15. 2, ib. 16. 2, ib. 19. 5, ib. 26. 12, ib. 29.
3 ; Bk. iv. 6. 33. inf., and for the expression * heres existere' sec Bk. ii.
X9. 5 inf.

§ 2. For 'postliminium' see on Tit. 12. 5 supr.

§ 8. The functions of the consuls in appointing tutors are alluded to

Tit. ao.] DE ATILIANO TUT ORE, ETC. 1 65

tutores desierunt dari, posteaquam primo consules pupillis
utriusque sexus tutores ex inquisitione dare coeperunt, deinde
praetores ex constitutionibus. nam supra scriptis legibus neque
de cautione a tutoribus exigenda rem salvam pupillis fore
neque de compellendis tutoribus ad tutelae administrationem
quidquam cavetur. Sed hoc iure utimur, ut Romae quidem 4
praefectus urbis vel praetor secundum suam lurisdictionem, in
provinciis autem praesides ex inquisitione tutores crearent, vel
magistratus iussu praesidum, si non sint magnae pupilli facul-
tates. Nos autem per constitutionem nostram et huiusmodi 5
difficultates hominum resecantes nee exspectata iussione prae-
sidum disposuimus, si facultas pupilli vel adulti usque ad
quingentos solidos valeat, defensores civitatum una cum eius-
dem civitatis religiosissimo antistite vel apud alias publicas
personas, id est magistratus, vel iuridicum Alexandrinae civi-
tatis tutores vel curatores creare, legitima cautela secundum
eiusdem constitutionis normam praestanda, videlicet eorum
periculo qui eam accipiant.

Impuberes autem in tutela esse naturali iure conveniens 6
est, ut is qui perfectae aetatis non sit alterius tutela regatur.

in fragm. Vat. 155 : of. Sueton. Claudius 23 'sanxit ut pupillis extra ordi-
nem tutores a consulibus darentur.' The scope of the ' inquisitio ' is
explained by Theophilus, c2 €(hropoi €l<riv . . . ct xP'l^^^^ (xovo-i fiiov, fj bwa-
§upoi dtoMciy aXXorpiav mpiova-iay. Subsequently a special praetor tutelaris
was established for the purpose by M. Aurelius : ' praetorem tutelarem
primus fecit, cum antea a consulibus poscerentur, ut diligentius de tutori-
bus tractaretur' Capitol. Marc. 10: the date of this change is fixed as
about i6i~9 A.D. by a tablet found in Venice. For the cautio given by
tutors see Tit. 24 inf*

§ 4. ' Secundum suam iurisdictionem ' is explained by the glossators
thus : ' iurisdictio eorum est haec : ut puta a patriciis usque ad illustres
praefectus urbi tutores dat, ab illustribus usque ad inferiores praetor.'
But it seems just as probable that the praetor's functions related only to
pupilli whose property fell below a certain maximum value— possibly 500
solidi : at least (§ 5) municipal magistrates in the provinces were authorized
to appoint when the pupil's fortune was less than this.

§ 5. The reference is to Cod. i. 4. 30. The iuridicus of Alexandria re-
ceived the power of appointing tutors from M. Aurelius, Dig. i. 20 : cL
Cod« I. 57 ; magistrates of the same name exercised the same functions in
Italy (Capitol. Marc. 11) and perhaps elsewhere, Apul. metam. i. 5, but
they seem to have been extinct before the time of Justinian.

§ a See on Tit. 13. i supr.

l66 INSTITUTIONUM LIBRI QUATTUOR. [Lib. I.

7 Cum igitur pupillonim pupillarumque tutores negotia gerunt,
post pubertatem tutelae iudicio rationem reddunt.

XXI.

DE AUCTORITATE TUTORUM.

Auctoritas autem tutoris in quibusdam causis necessaria
pupillis est, in quibusdam non est necessaria. ut ecce si quid
dan sibi stipulentur, non est necessaria tutoris auctoritas:
quod si aliis pupilli promittant, necessaria est : namque placuit
meliorem quidem suam condicionem licere eis'facere etiam
sine tutoris auctoritate, deteriorem vero non aliter quam
tutore auctore. unde in his causis, ex quibus mutuae obli-
gationes nascuntur, in emptionibus venditionibus, locationibus

§ 7. For * negotia gerere * see the note last referred to. On the ward's
attaining the age of puberty the tutor could be compelled by the actio
tutelae directa to lay before him full accounts of his income and expendi-
ture for the years during which he had administered the property (df. note
on Bk. iii. 27. 2 inf.) : condemnation entailed infamia, Bk. iv. 16. 2. inf.
Where the charge was one of conversion to his own use the proper remedy
was the actio de rationibus distrahendis, a penal action dating from the
XII Tables, Cic. de Off. iii. 15. pr. and 6, by which double damages could
be recovered, Dig. 26. 7. 55. i : 27. 3. I. 19.

Tit XXT. The administration of property in general is carried on by
dispositions such as alienation, contract, release, and so forth ; but the
functions of a tutor relate in the main only to acts or dispositions by
which the ward's property might be diminished : with an act of the ward
by which he is merely enriched the tutor need have nothing to do. The
most important acts of the former class are alienation and contract :
these might (' si procuratorem recipiebant *) be the acts of the tutor alone :
but if the actus were legitimus the ward must act in person. But when-
ever the latter attempted to make a disposition by which his proprietary
position might be prejudiced, it could confer no rights on other parties
unless the tutor 'auctoritatem suam interposuit :' it was this alone that
gave the act a full legal character : * tutoris auctoritas necessaria ... si
lege aut legitimo iudicio agant, si se obligent, si civile negotium gerant
(e. g. hereditatis aditio, note on § i) si rem mancipi alienent . . . etiam in
rerum nee mancipi aJienadone tutoris auctoritate opus est ' Ulpian, reg.
II. 27. There were in fact only three cases in which a pupil could be
sued on an act of his own which had not been sanctioned by his tutor :
(i) for his own delict. Dig. 9. 2. 5. 2; (2) si actio ex re venit, i.e. where
the obligation is merely one of restitution, Dig. 44. 7. 46: 13. 6. 3 ; and
(3) where and so far as he had been enriched by the transaction, Dig.
26. 8. 5. pr. There is also considerable authority for saying that the

Tit.ai.] T>E AUCTORITATE TUTORUM. 167

conductiontbus, mandatis, depositis, si tutoris auctoritas non
interveniat, ipsi quidcm qui cum his contrahunt obligantur, at
invicem pupilli non obligantur. Neque tamen hereditatem 1
adire neque bonorum possessionem petere neque hereditatem
ex fideicommisso suscipere aliter possunt nisi tutoris auc-
toritate, quamvis lucrosa sit neque ullum damnum habeat.
Tutor autem statim in ipso n^otio praesens debet auctor2
fieri, si hoc pupillo prodesse existimaverit. post tempus vero
aut per epistulam interposita auctoritas nihil agit. Si inters
tutorem pupillumve iudicium agendum sit, quia ipse tutor in
rem suam auctor esse non potest, non praetorius tutor ut olim

contract of a pupillus infantia major bound him naturaliter even though
not authorised by the guardian : cf. with iii. 29. 3 inf. Dig. 46. 2. i. i : 12.
2. 42. pr. : 46. 3. 44, ib. 95. 4 : 39. 5. 19. 4 : 36. i. 66. pr. If this view is
correct we must supply a word in the last sentence of this section, and
understand it *at invicem pupilli [civiliter] non obligantur.' But other
passages besides the text above say that no obligation whatever arose
from the unauthorised promise of a pupillus : e. g. Dig. 26. 8. 9. pr. : 16.
I. 8- 15 : Cod. 8. 39. I. The commentators take different views of the
antinomy, some believing in the superior authority of the passages first
cited, others in that of those last referred to, and others attempting to
reconcile them.

§ 1. The reason of the rule here stated is' that hereditas, bonorum pos-
sessio, and hereditas fideicommissaria always comprised liabilities as well
as rights, and though the latter might more than outbalance the former,
yet on the general principle the pupil could incur no liability whatever
without his tutor's auctoritas : cf. Seneca, nat. quaest. 2. 49, Dig. 29. 2.
8. pr. The aditio of an inheritance had always been an actus legitimus,
an act which by law was required to be personally performed, and which
consequently could not be undertaken by the tutor alone on the pupil's
behalf. In bonorum possessio, on the contrary, which being a praetorian
institution was governed by more liberal rules, free representation was
always permitted. By imperial enactment (Cod. 6. 30. 18. ^-4) the tutor
was allowed to make aditio for the pupil without any co-operation on the
latter's part.

§ 8. Suits in which a pupil was a party might be undertaken by the
tutor alone, or by the pupil himself with the former's auctoritas : * sufficit
tutoribus ad plenam defensionem, sive ipsi iudicium suscipiant, sive
pupillus ipsis auctoribus . . . ita tamen, ut pro his, qui fari non possint
vel absint, ipsi tutores iudicium suscipiant, pro his autem, qui supra
septimum annum aetatis sunt et praesto fuerint, auctoritatem praestent'
Dig. 26. 7. I. 2.

The suit between tutor and ward contemplated in the text is one
arising out of other matters than the guardianship, e.g. a will or in-

l68 INSTITUTIONUM LIBRI QUATTUOR. [Lib. I.

constituitur, sed curator in locum eius datur, quo interveniente
iudicium peragitur et eo peracto curator esse desinit.

XXII.

QUIBUS MODIS TUTELA FINITUR.

Pupilli pupiUaeque cum puberes esse coeperint, tutela
liberantur. pubertatem autem veteres quidem non soluih ex
annis, sed etiam ex habitu corporis in masculis aestimari
volebant. nostra autem maiestas dignum esse castitate tem-
porum nostrorum bene putavit, quod in feminis et antiquis
impudicum esse visum est, id est inspectionem habitudinis
corporis, hoc etiam in masculos extendere : et ideo sancta
constitutione promulgata pubertatem in masculis post quartum
decimum annum completum ilico initium accipere disposuimus,
antiquitatis normam in feminis personis bene positam suo
ordine relinquentes, ut post duodecimum annum completum

1 viripotentes esse credantur. Item finitur tutela, si adrogati
sint adhuc impuberes vel deportati: item si in servitutem

2 pupillus redigatur vel ab hostibus fuerit captus. Sed et si
usque ad certam condicionem datus sit testamento, aeque

3 evenit, ut desinat esse tutor existente condicione. Simili

testacy under which both claimed to succeed. For the tutor praetorius
see Gaius i. 173-187, Cod. 5. 44, and note on Tit. 14. 4 supr.

Tit. XXII. The precise age at which a male pupillus became pubes
had been disputed by the two schools of jurists : the Sabinians were
in favour of determining it in each individual by reference to actual
physical maturity, the Proculians of fixing fourteen years as the age in all
cases : Javolenus Priscus inclined to combine both requirements, Ulpian,
reg. II. 28, Gaius i. 196. The constitution referred to by Justinian is in
Cod. 5. 60. 3.

§ L The release of a pupillus from guardianship on being deportatus
might bet taken to support the theory that tutela was iuris civilis ; see
note on Tit. 13. i supr. If the ward was taken captive a curator was
usually appointed to look after his property, on the chance of his restora*
tion by postliminium, Dig. 4. 6. 15. pr.

§ 2« The office of a testamentary guardian, who was appointed su1>-
ject to a resolutive condition or a dies in quem (§ 5 inf.), determined on
the fulfilment of the condition or the arrival of the dies. So too if he
were appointed by a magistrate certae rei vel causae, he ceased to be
guardian as soon as the purpose for which he had been nominated was
atUtned^ Dig. 26. 2. 10, Cod. 5. 44.

Tit. 23.] . DE CURATORIBUS. 169

modo finitur tutela morte vel tutorum vel pupillorum. Sed 4
et capitis deminutione tutoris, per quam libertas vel civitas
eius amittitur, omnis tutela perit. minima autem capitis
deminutione tutoris, veluti si se in adoptionem dederit, legi-^
tima tantum tutela perit, ceterae non pereunt: sed pupilli
et pupillae capitis deminutio licet minima sit, omnes tutelas
toUit Praeterea qui ad certum tempus testamento dantur 5
tutores, finito eo deponunt tutelam. Desinunt autem esse 6
tutores, qui vel removentur a tutela ob id quod suspecti visi
sunt, vel ex iusta causa sese excusant et onus administrandae
tutelae deponunt secundum ea quae inferius proponemus. ,

XXIII,

DE CURATORIBUS.

Masculi puberes et feminae viripotentes usque ad vice-
simum quintum annum completum curatores accipiunt: qui,
licet puberes sint, adhuc tamen huius aetatis sunt, ut negotia

§ 4. The tutela legitixna of an agnate was extinguished by his under-
going capitis minutio minima, because thereby he lost his agnatic charac-
ter, so that the whole reason for his being tutor in that particular case
fell away. The legitima tutela of cognates was not destroyed by this
event : *ex novis autem legibus . . . tutelae plcrumque sic deferuntur, ut
peisonae naturaliter designentur' Dig. 4. 5. 7. pr.— A tutor who lost his
liberty by capture in war might recover his office lure postliminii, Tit. 20.
3 supn

In Dig. 4. 5. 7. pr. Paulus writes 'tutelas autem non amittit capitis
minutio, except is his quae in iure alieno personis positis deferuntur.'
Literally, these words would seem to mean that the tutela exercised by a
fiJiusfamilias (under a testament or magisterial appointment) was ex-
tinguished by cap. dim. minima : but this is contradicted by Dig. 27. 3. .
II, which expressly says that emancipation did not have this effect.
Consequently, the commentators have either restricted the sense of the
passage to capitis deminutio by datio in adoptionem (though that this
should destroy tutela seems quite unreasonable) or have attempted to
correct the passage so as to make it r^er only to agnatic guardianship.
An explanation of this kind is given without any emendation by a
scholiast, who interprets the disjputed words by saying rowrcori to« hia*
fuiwaaty virtiov<riot§ fi^xP*' ^5* ^^^ narphs rfXtvrrjg (hoc est, qui remanserunt
in potestate usque ad mortem patris : i. e. the agnates).

Tit. XXm. Cura, like tutela, was a munus publicum. A tutor's func-
tions were pardy of administration, partly of auctoritas : those of a
curator related to administration only, so that he was not said, like the

I70 INSTITUTIONUM LIBRI QUATTUOH. [Lib. I,

1 sua tueri non possint. Dantur autem curatores ab isdem
magistratibus, a quibus et tutores. sed curator testamento

2 non datur, sed datus confirmatur decreto praetoris vel prae-
sidis. Item inviti adulescentes curatores non accipiunt prae-

tutor, to be ^ personae datus,' and it is the auctoritatis interpositio which
forms the characteristic difference between the two : ' si tutoris auctoritas
fuerit necessaria . . . tutor ei necessario dabitur, quoniam curatoris auc-
toritas ad hoc inutilis est' Dig. 49. i. 17. i. The exact scope of the
curator's administratio of course depended on the circumstances of the
case: sometimes he entirely managed the ward's property: sometimes
he allowed him practically to manage it himself, and here he took no
personal part in the business, having no power to interpose auctoritas :
but his consensus was presumed, and his responsibility in no way dimi-
nished : sometimes, as in the x:ase of lunatics, he had charge of the
ward's person also.

The cura of adulescentes or minors — i.e. persons between the ages of
puberty and twenty-five years — originated in the lex Plaetoria, often
mentioned by Plautus, who died B.c. 183, which subjected those who
fraudulently overreached minors to a iudicium publicum entailing a
pecuniary mulct and infamia on conviction. In the face of such a pro-
secution few people would be likely to give credit to minors or even to
have any dealings with them whatsoever (Plautus, Pseudolus i. 3. 68,
Rudens 5. 3. 24) : hence the rule was established (it is uncertain whether
by the praetor or by the statute itself: Capitolinus Marc. 10 is in favour
of the latter view) that minors who wished to contract or deal with others
should be compellable to receive a curator on their application, by whose
assent to the transaction the penal consequences of the lex Plaetoria
would be avoided. M. Auielius ordained that any minor, apart from
such special occasion, should be able to obtain from the praetor a gene-
ral curator to undertake the general administration of his property. A
further protection afforded to minors against the consequences of their
own inexperience or indiscretion was the praetorian practice of in in-
tegrum restitutio, for which see on Bk. iv. 6. 33 inf.

§ 1. Dio Cassius (44. 35) says that Julius Caesar appointed in his will
imrp^novi to Augustus 'qui propter provectiorem aetatem curatores
fuerint :' these must have been magisterially confirmed. The reason why
testamentary appointment of ciu'ators was never allowed was perhaps
that in the earliest form of the institution (the cura of furiosi and prodigi)
a causae cognitio was required in order to settle whether the person
actually was furiosus and prodigus, and this would have seemed to admit
an undue interference of the magistrate with testamentary power.

% 2. This means only that a general curator could not be forced on a
minor: but he could be compelled to have one temporarily, ad certam
causam (i) in litem, as is observed in the text, for no judgment could be
given against a minor unless the litigation were sanctioned by a curator,
Dig. 42. 1. 45. 2: (2) that his tutor's accounts might be passed, Cod. 5.

Tit. 23.] DE CURATORIBUS. 171

terquam in litem : curator enim et ad certain causam dari
potest. Furiosi quoque et prodigi, licet maiores viginti 8
quinque annis sint, tamen in curatione sunt adgnatorum ex
lege duodectm tabularum. sed solent Romae praefectus urbis
vel praetor et in provinciis praesides ex inquisitione eis dare
curatores. Sed et mente captis et surdis et mutis et qui 4
morbo perpetuo laborant, quia rebus suis superesse non

31* 7 : (3) when his debtor wished to discharge a debt and obtain a
release, Dig. 4. 4. 7. 2 : (4) if he wished to give himself in adrogation,
Dig. I. 7. 8.

Whether a minor who had a general curator couJd bind himself by
contract without the latter*s consent is disputed. The general rule, even
as late as the time of Modestinus, seems to have been that he could, "^
Dig. 45. I. loiy but of course he could not be effectively sued without it.
A rescript, however, of Diocletian and Maximian shows that a little later
the rule had been altered (Cod. 2. 21. 3), a minor with a curator being
put on a par with an interdicted prodigal. The same passage states that
against a contract made without such consent he could get himself in
integrum restitutus, and from Cod. 2. 24. 2 and 3 it appears that he could
avail himself of the same remedy if he could show that even with it he
had made any disposition detrimental to himself.

§ 8. The cura of furiosi and prodigi, which the XII Tables had given to
the agnates, went doubtless on default of the latter to the Gentiles,
on the analogy of intestate succession: Cic. de invent. 2. 50, Varro,
de re rust. i. 2. Appointment by the magistrate does not seem to have
superseded this legitima cura, which is often spoken of as still in exist-
ence ('eo (legitimo) cessante, aut non idoneo forsitan existente, ex iudi-
ciaii electione curatorem ei dare necesse fuerit ' Cod. 5. 70. 7. 6 : cf. Dig.
27. 10. 13) : it was resorted to only when the legitimi failed.

The interdiction of prodigals had been a matter of customary law even
before the XII Tables, Dig. 27. 10. i. pr. The prodigus was subjected to
cura on an application to that effect being made to the praetor by his
near relations : the form of interdiction is given by Paulus, sent rec 3.
4 a. 7 ^ moribus per praetorem bonis interdicitur hoc modo : quando tua
bona patema avitaque nequitia tua disperdis liberosque tuos ad eges-
tatem perducis, ob earn rem tibi ea re commercioque interdico.' Under
the early law the office belonged to the agnates only if the prodigus had
succeeded his father ab intestato, Ulpian, reg. 12. 3. As to when furiosi
and prodigi were released from cura cf Dig. 27. 10. i pr. 'Et tamdiu
ambo enmt in curation^, quamdiu vel furiosus sani tatem vel ille (pro-
digus) sanos mores receperit : quod si evenerit, ipso iure desinunt esse in
potestate curatorum.'

§ 4. By mente capti, as distinct from furiosi, is meant to be expressed
imbecility or weakness of intellect, in contrast with actual insanity:
synonymoos terms are stultus, &tuus, insanus. Such persons can have

17a INSTITUTIONUM LIBRI QUATTVOR. [Lib. I.

5 possunt, curatores dandi sunt. Interdum autem et pupilli
curatores accipiunt, ut puta si l^timus tutor non sit idoneus,
quia habenti tutorem tutor dari non potest, item si testament©
datus tutor vel a praetore vel a praeside idoneus non sit ad
administrationem nee tamen fraudulenter n^otia administrat,
solet ei curator adiungi. item in locum tutorum, qui non in
perpetuum, sed ad tempus a tutela excusantur, solent curatores
darL

6 Quodsi tutor adversa valetudine vel alia necessitate im-
peditur, quo minus negotia pupilli administrare possit, et
pupillus vel absit vel infans sit, quern velit actorem periculo
ipsius praetor vel qui provinciae praeerit decreto constituet.

XXIV.

DE SATISDATIONE TUTORUM ET CURATORUM.

Ne tamen pupillorum pupillarumve et eorum, qui quaeve
in curatione sunt, n^otia a tutoribus curatoribusve consu-
mantur aut deminuantur, curat praetor, ut et tutores et
curatores eo nomine satisdent. sed hoc non est perpetuum ;
nam tutores testament© dati satisdare non coguntur, quia
fides eorum et diligentia ab ipso testatore probata est : item
ex inquisitione tutores vel curatores dati satisdatione non

curators given them on application, because they cannot manage their
own affairs, or even be relied on in the selection of agents : for Paulus
says (sent rec. 4. 12. 9) 'caeco curator dari non potest, quia ipse sibi
procuratorem instituere potest.*

§ 6. For the maxim * tutorem habenti tutor dari non potest' see on
Tit 20. pr. supr.

§ 6. For the 'actor' mentioned in this section see Dig. 26. 7. 24. pr.,
ib. 32. 7 ; 26. 9. 6 ; 46. 8. 9.

Tit. XXTV. The squandering of pupils' fortunes by their tutors is often
dwelt upon by old writers : * divitias . . . . ut ferme evenit, tutor immi-
nuit' Apuleius apol., 'multiformis plerumque perfidiatutorum' Symmach.
£p. 7. 65, 'cottidie suspecti tutores postulantur* Dig. 26. 10. i. pr.
Tutors and curators, with the exceptions mentioned in the text, had to
give security 'rem pupilli salvam fore' Bk. iii. 18. 4 inf., their own en-
gagement always being supported by sureties. It was a question whe-
ther the patron and his sons were exempted from sadsdatio : the better
view seems to have been that it depended on the circumstances of the
particular case^ Dig. 26. 4. 5. 1.

Tit.a4*] lyE SATISDATIONE TUTORUM, ETC. 173

onerantur, quia idonei electi sunt. Sed et si ex testamento 1
vd inquisitione duo pluresve dati fuerint, potest unus offerre
satis de indemnitate pupilli vel adulescentis et contutori vel
concuratori praeferri, ut solus administret, vel ut contutor
satis offerens praeponatur ei, ut ipse solus administret. itaque
per se non potest petere satis a contutore vel concuratore suo,
sed offerre debet, ut electionem det contutori suo, utrum velit
satis accipere an satis dare, quodsi nemo eorum satis offerat,
si quidem adscriptum fuerit a testatore, quis gerat, ille gerere
debet : quodsi non fuerit adscriptum, quem maior pars elegerit,
ipse gerere debet, ut edicto praetoris cavetur. sin autem ipsi
tutores dissenserint circa eligendum eum vel eos qui gerere
debent, praetor partes suas interponere debet, idem et in
pluribus ex inquisitione datis probandum est, id est ut maior
pars eligere possit, per quem administratio fieret.

Sciendum autem est non solum tutores vel curatores pupillis 2
et adultis ceterisque personis ex administratione teneri, sed
etiam in eos qui satisdationes accipiunt subsidiariam actionem

§ 1. Where there were several joint tutors or curators (i) the business
might be entrusted specially to one of them, and that either by direction
of the appointing testator or magistrate, or by mutual arrangement : the
mode in which this last was settled is described in this section. The
managing tutor or curator was then called tutor or curator gerens, the
others honorarii : ' sunt quidam tutores, qui honorarii appellantur : sunt,
qui rei notitiae gratia dicuntur : sunt, qui ad hoc dantur, ut gerant, et hoc
vd, pater adicit, ut unus puta gerat, vel voluntate tutorum uni committitur
gestus, vel praetor ita decemit. Dico igitur, cuicunque ex tutoribus
fuerit solutum, etsi honorariis — nam et ad hos periculum pertinet —
recte solvi, nisi interdicta iis a praetore fuerit administratio : nam si
interdicta est, non recte solvitur' Dig. 46. 3. 14. I : cf. Dig. 26. 7. 3. i.
The tutores honorarii were responsible for the gerens' faults of commis-
aon and omission, and therefore had to keep an eye on his administra-
tion (cf. Bk. iii. 19. 20 inf.). (2) Each one might have been specially
assigned to look after certain kinds of the ward's property, or his pro-
perty in some specific locality; in this case he was, within his sphere
of action, possessed of all the rights and subject to all the duties of a,
single guardian. (3) The administration might be undivided : in which
case each had a complete right to manage the ward's affairs subject to
his colleagues' right of veto, and the liability was joint throughout, even
where loss was occasioned by the act or omission of a single member.

§ 2. When inferior magistrates appointed tutors or curators to persons
whose fortunes fell below a certain minimum (Tit. 20. 4 supr.), they did

174 INSTITUTIONUM LIBRI QUATTUOR. [Lib. I.

esse, quae ultimum eis praesidium possit afferre. subsidiaria
autem actio datur in eos, qui vel omnino a tutoribus vel
curatoribus satisdari non curaverint aut non idonee pass! essent
caveri. quae quidem tarn ex prudentium responsis quam ex
constitutionibus imperialibus et in heredes eorum extenditur.

3 Quibus constitutionibus et illud exprimitur, ut, nisi caveant

4 tutores vel curatores, pignoribus captis coerccantur. Neque
autem praefectus urbis neque praetor neque praeses provinciae
neque quis alius cui tutores dandi ius est hac actione tenebitur,
sed hi tantummodo qui satisdationem exigere solent

so sine inquisitione, and therefore were bound to make the selected per-
son give satisdatio in the usual manner. If they exacted insufficient
security, they were made liable in person for all loss resulting from their
negligence by a senatusconsult of Trajan, Cod. 5. 75. 5, and this liability
was extended to their heirs by Antoninus Pius, Dig. 27. 8. 6. Higher
magistrates who appointed ex inquisitione were never thus responsible,
§ 4 inf.

This title deals with only one of the modes in which persons in tutela
or cura were secured against loss from the dishonesty or negligence of
their tutors or curators. They were also protected (1) by the possibility
of remotio, Tit. 26 inf. (2) By statutory restrictions on the tutor's or
curator's powers, especially in respect of alienation : see on Tit. 13. i
supr. (3) By a statutory hypothec over the tutor's or curator's whole
property, which had certainly been established as early as the time of
Constantine, Cod. 5. 37. 20. (4) By responsibility of other persons for
the tutor or ciuator (in addition to his sureties and the appointing magis-
trate). These were the affirmatores, who had at the inquisitio borne
witness to the character of the person appointed, and the nominatores,
persons who proposed or suggested a tutor or curator in any particular
case ; this might happen {a) at the petitio tutoris. If a pupil had no
tutor, anyone could apply for or suggest one, and some persons were
bound to do this: e.g. the mother (Bk. iii. 3. 6 inf.), and other heirs
presumptive ab intestato, under penalty, in default, of forfeiting their
rights of succession if the pupil died impubes, Dig. 26. 6. 2. 2 : also
the libertus, under a pecuniary penalty, {b) In cases where a man was
appointed tutor or curator by a magistrate, he could usually procure
exemption by suggesting some one better qualified (potions nominatio)
by reason of relationship. This right of nominatio was in nulny cases
restricted (fragnL Vat. 158, Paul. rec. sent. 2. 29 'qui potiores nominate
non possunt '), and was altogether abolished by Justinian.

Tit 25.] DE EXCUSATIONIBUS. 175

XXV.

DE EXCUSATIONIBUS.

Excusantur autem tutores vel curatores variis ex causis:
plerumque autem propter Hberos, sive in potestate sint sive
emanCipati. si enim tres liberos quis superstites Romae
habeat vel in Italia quattuor vel in provinciis quinque, a tutela
vel cura possunt excusari exemplo ceterorum munerum : nam
et tutelam et curam placuit publicum munus esse, sed
adoptivi liberi non prosunt, in adoptionem autem dati naturali
patri prosunt. item nepotes ex filio prosunt, ut in locum
patris succedant, ex filia non prosunt. filii autem superstites
tantum ad tutelae vel curae muneris excusationem prosunt,
defunct! non prosunt. sed si in bello amissi sunt, quaesitum
est, an prosint. et constat eos solos prodesse qui in acie
amittuntur: hi enim, quia pro re publica ceciderunt, in
perpetuum per gloriam vivere intelleguntur. Item divus 1'
Marcus in semestribus rescripsit eum, qui res fisci administrat,
a tutela vel cura quamdiu administrat excusari posse. Item 2
qui rei publicae causa absunt, a tutela et cura excusantur.

Tit. XXV. For the Eastern Empire Romae means Constantinople,
and Italia Thrace, schol. Theoph. By *ut in patris locum succedant'
is meant that any number of grandchildren by one dead son count only
as one, Zvtn d* h» ^iv tyyovoi t§ h6s v2oi), am Ms riofov dpiBfiovvraty Dig.
27. 1. 2. 7. For the sentiment at the end of the section cf. Tyrtaeus,
Carm. i. i ; iii. 31, Plautus, Capt 3. 5. 32, Cic pro Balbo 17. 21, Plane.
77 y Seneca, controv. x. 8.

§ 1. Persons employed by the emperor on his own affairs could also
claim exemption : * hi vero, quibus princeps curam alicuius rei iunxit, ex-
cusantur a tutela, donee curam gerunt* Dig. 27. i. 22. i ; ib. 41. pr., Cod.
5. 62. 10. The semestria was a collection of decisions delivered by M.
Aurelius in his privy council — so called perhaps because the latter was
subject to reconstitution half yearly, Dig. 2. 14. 46; 18. 7. 10; 29. 2. 12.
But a gloss says ' semestria sunt codex, in quo legislationes per sex menses
prolatae in unum redigebantur.*

§ 2. Persons absent rei publicae causa were exempt from newly-ten-
dered guardianships during their absence and for a year after their return :
when sent abroad on such state business they were excused from any
tutela which they were invested with at the time, but on their return they
had to resume it without any 'anni vacatio' Dig. 27. i. 10. 2, Cod. 5.
64. 1.

176 INSTITUTIONUM UBRI QUATTUOR. [Lib. I.

sed et si fuerunt tutores vel curatores, deinde rei publicae
causa abesse coeperunt, a tutela et cura excusantur, quatenus
rei publicae causa absunt, et interea curator loco eorum datur.
qui si reversi fuerint, recipiunt onus tutelae nee anni habent
vacationem, ut Papinianus responsorum libro quinto scripsit :

3 nam hoc spatium habent ad novas tutelas vocati. Et qui
potestatem aliquam habent, excusare se possunt, ut divus
Marcus rescripsit, sed coeptam tutelam deserere non possunt.

4 Item propter litem, quam cum pupillo vel adulto tutor vel
curator habet, excusare se nemo potest : nisi forte de omnibus

5 bonis vel hereditate controversia sit. Item tria onera tutelae
non affectatae vel curae praestant vacationem, quamdiu
administrantur : ut tamen plurium pupillorum tutela vel
cura eorundem bonorum, veluti fratrum, pro una computetur.

6 Sed et propter paupertatem excusationem tribui tarn divi
fratres quam per se divus Marcus rescripsit, si quis imparem

7 se oneri iniuncto possit docere. Item propter adversam vale-

§ 3. Potestas means any magistracy, superior or inferior. Dig. 27. i. 6.
14-16 ; ib. 17. 4-5. Fragm. Vat. 146 ('qui Romae magistratu funguntur,
quamdiu hoc funguntur, dan tutores non possunt') is not meant to exclude
municipal magistrates.

§ 4. ' Propter litem, quam quis cum pupillo habet, excusare se a tutela
non potest, nisi de omnibus bonis aut plurima parte eorum controversia
sit' Dig. 27. I. 21. pr., 'volumus .... si quis obligatum habuerit mino-
rem aut eius res, hunc non omnino ad curationem eius, vel si a kgibus
vocetur, accedere* Nov. 72. i.

§ 6. Yet if, even where a man already had three independent tutelae,
they gave him but little trouble, or if one of them was near its termina-
tion, he would not be easily excused ; while conversely a single tutela of
great difficulty or responsibility would be regarded as ground for exemp-
tion, Dig. 27. I. 17. pr. ; ib. 31. 24. It was not necessary that the three
tutelae should be vested in the same person, provided they were 'in
domo una,' and the paterfamilias was pecuniarily liable on them all. Dig.
ib. 2. 9. ' [AfTectata est] si vel appetita videatur, vel, cum posset quis se
excusare, se non excusavit,' fragm. Vat 188.

§ 6. The excusandus must apparently be so poor as to require sdl his
time to earn his own living, Dig. 27. i. 7 ; ib. 40. i. Persons too poor to
give security if required were removed. Cod. 5. 42. 2. The divi fratres
are M. Aurelius and Lucius Verus (a.D. 161-169).

§ 7. In a case of merely temporary illness a curator would be appointed
ad interim. Dig. 27. i. 10. 8. Physical defects, such as blindness, deaf-
ness, or dumbness, were also g^rounds of excuse (fragm. Vat. 238), though
the last two are said in Dig. 26. i. i. 2 and 3 to incapacitate.

Tit. as.] DE EXCUSATIONIBUS. 1 77

tudinem, propter quam nee suis quidem negotiis interesse
potest, excusatio locum habet. Similiter eum qui litterasS
nesciret excusandum esse divus Pius rescripsit : quamvis et
imperiti litterarum possunt ad administrationem negotiorum
sufficere. Item si propter inimicitiam aliquem testamento 9
tutorem pater dederit, hoc ipsum praestat ei excusationem :
sicut per contrarium non excusantur, qui se tutelam patri
pupillorum administraturos promiserunt. Non esse autem 10
admittendam excusationem eius, qui hoc solo utitur, quod
ignotus patri pupillorum sit, divi fratres rescripserunt. Inimi- 11
citiae, quas quis cum patre pupillorum vel adultorum exercuit,
si capitales fuerunt nee reconciliatio intervenit, a tutela solent
excusare. Item si quis status controversiam a pupillorum 12
patre passus est, excusatur a tutela. Item maior septuaginta 13
annis a tutela vel cura se potest excusare. minores autem
viginti et quinque annis olim quidem excusabantur : a nostra

§ 8. In Dig. 27. I. 6. 19 Paulus and Modestinus cite a rescript of Ha-
drian and A. Pius, 'eius qui neget literas se scire excusatio accipi non
debet, si modo non sit expers negotiorum.' Perhaps the best way of
reconciling this with the text is to take § 8 in close connection with § 7 >/
(similiter) : ' ignorance of reading and writing is not, as a rule, a ground
of excuse, any more than mere ill health : in both cases there must be
absolute inability to cope with business.'

§ 9. The last sentence of this section requires some such addition as
^etiamsi alias excusationem habeant' Dig. 27. i. 15. i ; 26. 2. 29.

§ IL For this use of ' capitalis ' cf. Cod. 2. 20. 7, ' capitales minae.'

§ 12. A suit relating to a person's status (status controversia) might be
undertaken on political grounds (quaestio de civitate) by reason of the
public rights which citizenship conferred: more often it arose through
the connection between it and some private right, to enjoy which the
civitas of some individual was asserted or denied. In this case the con-
troversia was usually made up into an independent issue in the form of
a praeiudicium, though in effect only incidental to another (and the main)
question. Thus (e.g.) the validity of a will might be disputed on the
ground that the testator was no civis. Sometimes the status controversia
was in reality, as well as in show, an independent suit, undertaken to
establish dominium over a slave, or potestas over a filiusfamilias ; and
here the person whose status was in question could not appear person-
ally, but must be represented (as e. g. the slave by an adsertor liber-
tatis). Another not uncommon subject of this kind of suit was free-
birth, ingenuitas.

§ 18. If, before Justinian's enactment (Cod. 5. 30. 5), a minor became
tutor (e. g. legitimus or testamento) he was not disqualifiedi but a tutor

N

178 INSTITUTIONUM LIBRI QUATTUOR. [Lib, I.

autem constitutione prohibentur ad tutdam vel curam aspi-
rare, adeo ut nee excusatione opus fiat qua constitutione
cavetur, ut nee pupillus ad l^itimam tutelam vocetur nee
adultus : cum erat incivile eos, qui alieno auxilio in rebus suis
administrandis egere noscuntur et sub aliis reguntur, aliorum

14 tutelam vel curam subire. Idem et in milite observandum

15 est, ut nee volens ad tutelae munus admittatur. Item Romae
grammatici rhetores et medici et qui in patria sua id exercent
et intra numerum sunt, a tutela vel cura habent vacationem.

IB Qui autem ise vult excusare, si plures habeat excusationes

praetorius was pat in until he came of age (Dig. 27. 3. 9. i). The result
of his law (nemo in tutelam vocetur, antequam quintum et vicesimum
suae aetatis annum impleat) was that, if the nearest agnate was a
minor, he was completely passed over in favour of the next legitimus
who was of age. Yet if a minor were appointed by will a tutor dativus
was still nominated ad interim, as is dear from Tit 4. 2 supr., and Dig.
26. 2. 32. 2.

§ 14. Soldiers on actual service, i.e. before dischai^ge, were absolutely
disabled from being tutors or curators, Cod. 5. 34. 4. If honourably dis-
charged at the end of the full term of service (twenty years) they were
permanently entitled to exemption, except from the tutela or cura of
children of soldiers, as to whom their excusatio lasted one year only. In
case of honourable discharge after less than five years' service no exemp-
tion was allowed : after five years they were excused for one year, after
eight for two, after twelve for three, and after sixteen for four, Dig. 27.
1.8.

§ 16. ' Grammatici sunt, qui aliquid diligenter et acute scienterque
possint aut dicere aut scribere, proprie poetarum interpretes' (Com. Nepos
apud Suet, de ill. gramm. 4), 'grammatica professio recte loquendi
scientia et poetarum enarratio' Quintil. Inst. or. i. 4.2, 'grammatica
circa curam sermonis versatur, circa historias, circa carmina' Seneca, ep.
88. 2. The ' numerus ' was determined by the size of the town, and a
grammaticus, physician, or rhetorician, was admitted into it by magis-
terial decree : * est autem etiam niunerus definitus eorum, qui in singulis
civitatibus immunitatem habeant, et condiciones quaedam adiectae in
lege: quod intelligitur ex epistola Antonini quae data est ad commune
Asiae, sed pertinet ad orbem universum, cuius est caput infra scriptum :
civitates minores possunt habere immunes medicos quinque et sophistas
tres eodemque numero grammaticos : maiores civitates septem qui me-
deantur, quattuor sophistas, quattuor qui doceant literas utrasque:
maximae vero medicos decem et rhetores quinque eodemque numero
grammaticos, super hunc autem numerum ne maxima quidem civitas
immunitatem confert' Dig. 27. i. 6. 2-3.

§ 16. So, too, Ulpian says in Dig. 49. 4. i. i 'si quis tutor datus

Tit. asO DE EXCUSATIONIBUS. 179

ct de quibusdam non probaverit> aliis uti intra tempora non
prohibetur. qui excusare se volunt, non appellant : sed intra
dies quinquaginta continuos, ex quo cognoverunt, excusare se
debent (cuiuscumque generis sunt, id est qualitercumque dati
fuerint tutores), si intra centesimum lapidem sunt ab eo loco,
ubi tutores dati sunt : si vero ultra centesimum habitant, dinu-
meratione facta viginti millium diumorum et amplius triginta
dierum. quod tamen, ut Scaevola dicebat, sic debet compu-
tari, ne minus sint quam quinquaginta dies. Datus autem 17
tutor ad universum patrimonium datus esse creditur. Qui 18
tutelam alicuius gessit, invitus curator eiusdem fieri non com-
pellitur, in tantum ut, licet pater, qui testamento tutorem de-
dent, adiecit se eundem curatorem dare, tamen invitum eum
curam suscipere non cogendum divi Severus et Antoninus
rescripserunt. Idem rescripserunt maritum uxori suae cura- 19

fuerit vel testamento vel a quo alio qui ius dandi habet, non oportet eum
provocare ; hoc enim divus Marcus effecit : sed intra tempora praesti-
tuta excusationem allegandam habet, et si fuerit pulsa, tunc demum
appellare debebit, caeterum ante /rustra appelktur.' It must not be
inferred from ' datus ' in this passage, or from ' id est, qualitercunque dati
fuerint ' in the text, that the exemptions did not extend to tutores legitimi.
Theophilus explains rttrrafuvrdpioi . • Xtylrifioi . . xmh apxovros M6fitvoi,
For the time within which the excuse must be proved df. Dig. 27. i. 38
^quinquaginta dierum spatium tantummodo ad contestandas excusa-
tionum causas pertinet: peragendo enim negotio ex die nominationis
continui quattuor menses constituti sunt.'

Besides the classes of person^ mentioned in this Title, the following
could daim exemption : (i) Spiritual persons who were not already inca-
pacitated (bishops and monks, Nov. 123. 5) Cod. i. 3. 52. (2) Jurists
who belonged to the emperor's consilium. Dig. 27. i. 30. (3) Persons
not domiciled in the place where their tutorial functions were to be
exercised. Dig. 27. i. 46. 2. Similarly a tutor or curator could claim to
be excused from the management of property in another province, or at
least 100 miles from his usual place of residence. Dig. ib. 10. 4. (4) Mem-
bers of a corporation on which this privilege had been conferred by
special enactment, Dig. ib. 17. i. Finally, a tutor or curator could lay •
do¥m an office which he had already begun to administer (i) when he
was made a member of the imperial council, Dig. 4. 4. 11. 2 ; (2) when
be changed his domicile with the emperor's sanction, provided the latter
knew he was a tutor or curator. Dig. 27. i. 12. i ; (3) on occasion of ill-
ness so severe as to entirely incapacitate him for the discharge of his
duties, J3ig. ib. 10. 8 ; ib. 45. 4.

§ 10. Immixtio was an implied promise to undertake the office, and

N 2

l8o INSTITUTJONUM UBRl QUATTUOR. [Lib. I.

20 torem datum excusare se posse, licet se immisceat. Si qum
autem falsis all^^tionibus excusationem tutelae meruit, non
est liberatus onere tutelae.

XXVI.

DE SUSPECTIS TUTORIBUS ET CURATORIBUS.

1 Sciendum est suspecti crimen e lege duodecim tabularum
descendere. Datum est autem ius removendi suspectos tutores
Romae praetori et in provinciis praesidibus earum et legato

2 proconsulis. Ostendimus, qui possunt de suspecto cognoscere :
nunc videamus, qui suspecti fieri possunt. Et quidem omnes
tutores possunt, sive testamentarii sint sive non, sed alterius
generis tutores. quare et si legitimus sit tutor, accusari po-
tent, quid si patronus? adhuc idem erit dicendum: dum-
modo meminerimus famae patroni parcendum, licet ut suspectus

8 remotus fuerit. Consequens est, ut videamus, qui possint sus-
pectos postulare. et sciendum est quasi publicam esse banc
actionem, hoc est omnibus patere. quin immo et mulieres
admittuntur ex rescripto divorum Severi et Antonini, sed hae
solae, quae pietatis necessitudine ductae ad hoc procedunt, ut
puta mater : nutrix quoque et avia possunt, potest et soror :
sed et si qua mulier fuerit, cuius praetor perpensam pietatem

those who had promised were as a rule debarred from urging any ground
of excuse whatever, see on § 9 supr.

Tit. XXVI. 8. The actio suspecti tutoris was not a genuine crimen
publicum (for which see Bk. iv. 18 inf.), and though it resembles the
actiones populares in lying at the suit of any one (except infames) the
object of these was properly rather the recovery of a penalty, see Bk. iv.
5. I ; ib. 9. I inf. There is evidence, however, Aat the magistrate some-
times inflicted a fine, of which a half went to the accuser. Colleagues of
the tutor gerens were legally bound to accuse him as suspectus, if they
saw cause ; and in default of an accuser the magistrate might take
measures for his deposition virtute oflicii, Dig. 26. 10. 3. 4.

Some further information as to the meaning of suspectus is given in
§§ 9 and 13 inf. Ulpian thought that a person proposed as tutor might
be rejected on the ground of some misconduct of which he had been
guilty before entering on the office, but that until he had done so he
could not be proceeded against as suspectus, even though the wrong
had affected the pupils' interests, Dig. 26. la 3. 4 and 5. Julianus (Dig*
27. I. 20) held the opinion maintained in the text, that even before enter-*
ing oa his duties he could be charged as suspectus.

Tit. 26.] DE SUSPECTIS TUTORIBUS, ETC. t8l

intellexerit non sexus verecundiam egredientis, sed pietate
productam non continere iniuriam pupillorum, admittit earn ad
accusationem. Impuberes non possunt tutores suos suspectos 4
postulare : puberes autem curatores suos ex consilio necessa-
riorum suspectos possunt arguere : et ita divi Severus et An- 5
toninus rescripserunt Suspectus est autem, qui non ex fide
tutelam gerit, licet solvendo est, ut et lulianus quoque scripsit.
sed et ante, quam incipiat gerere tutelam tutor, posse eum
quasi suspectum removeri idem lulianus scripsit et secundum
eum constitutum est Suspectus autem remotus, si qui- 6
dem ob dolum, famosus est : si ob culpam, non aeque. Si 7
quis autem suspectus postulatur, quoad cognitio finiatur, inter-
dicitur ei administratio, ut Papiniano visum est. Sed si sus- 8
pecti cognitio suscepta fuerit posteaque tutor vel curator 9
decesserit, extinguitur cognitio suspecti. Si quis tutor copiam
sui noil faciat, ut alimenta pupillo decernantur,cavetur epistula
divorum Severi et Antonini, ut in possessionem bonorum eius
pupillus mittatur: et quae mora deteriora futura sunt, dato
curatore distrahi iubentur. ergo ut suspectus removeri potent
qui non praestat alimenta. Sed si quis praesens negat propter 10
inopiam alimenta posse decerni, si hoc per mendacium dicat,
remittendum eum esse ad praefectum urbis puniendum placuit,

§ 6. 'Suspectos tutores ex dolo, non etiam eos, qui ob neglegentiam
remoti supt, infames fieri manifestum est ' Cod. 5. 43. 9. It seems, how-
ever, that removal for lata culpa entailed infamia: 'si fraus non sit
admissa, sed lata neglegentia, quia ista prope fraudem accedit, removeri
hunc quasi suspectum oportet ' Dig. 26. 10. 7. i, ' si negligentia et nimia
cessatio obiciatur . . . removendum eum, qui dignus tali nota videbitur'
Dig. 27. 2. 6.

§ 9. It has been already mentioned that as a general rule the tutor
bad nothing to do with the rearing and education of his pupil ; this was
entrusted to the tatter's nearest relations, to whom the tutor made a pay-
ment of so much per annum for this purpose, the precise sum being fixed
by the magistrate in proportion to the pupiPs fortune as estimated by
the tutor himself. If, after the annual allowance being thus fixed, the
tutor failed to provide it regularly, there was prima facie evidence of
maladministration sufficient to warrant removaL The object of the
pupil's being 'missus in possessionem' of the tutor's property was partly
to induce the latter to appear, partly to guarantee the former against
losses which might haVe occurred in his fortune through the tutor's fraud
or carelessness, Dig. 26. la 7. 2.

l82 INSTITUTIONUM LIBRI QUATTUOR.

sicut'ille remittitur, qui data pecunia ministerium tutelae re-

11 demit. Libertus quoque, si fraudulenter gessisse tutelam
filiorum vel nepotum patroni probetur, ad praefectum urbis

12 remittitur puniendus. Novissime sciendum est eos, qui frau-
dulenter tutelani vel curam administrant, etiamsi satis offerant,
removendos a tutela, quia satisdatio propositum tutoris male-
volum non mutat^ sed diutius grassandi in re familiari faculta*

18 tern praestat. Suspectum enim eum putamus, qui moribus
talis est, ut suspectus sit : enimvero tutor vel curator quamvis
pauper est, iidelis tamen et diligens, removendus non est quasi
suspectus.

EXCURSUS I.

CAPITIS DEMINUTIO.

Upon the nature of capitis deminutio minima a different view is
maintained by Savigny from that adopted in the note on Bk. i. i6. 3.
He argues that the essence of all capitis deminutio is a degradation,
or * downward step on the ladder of status.' As applied to the two
higher modes (maxima and media) this theory is not out of accord
with the fects : there can be no doubt that a free man who became a
slave, or a civis who became Latinus or peregrinus, was thereby
degraded to a lower civil position. As applied, however, to capitis
deminutio minima it presents insuperable difficulties : it is neither
established by the authorities, nor can the inferences which must
logically be drawn from it be reconciled with the statements of the
jurists and other writers.

(i) On Savigny's hypothesis capitis deminutio minima occurred
only in two cases : {a) where a person sui iuris passed into potestas
or manus : (3) where a filiusfamilias, or woman in manu, was con-
veyed into the condition of mancipium in order thereby to be emanci-
pated or given in adoption. Accordingly, the children of an adrogatus,
will not be capite minuti when they pass along with him into the
potestas and fEunilia of the adrogator : yet the very opposite of this
is stated by Paulus in Dig. 4. 5. 3 * liberos qui adrogatum parentem
sequuntur placet minui caput, cum in aliena potestate sunt, et cum
£uniliam mutaverint' Savigny boldly says that Paulus was wrong,
that his view is unsupported by any other jurist, and is in fact
peculiar to himself : but he seems to have overlooked the force of
the word ' placet,' which certainly means * is the received doctrine '
(• verbum de iure antea controverso, iurisconsultorum responsis sta-
bilito, sollemne ' Schrader), and it can hardly be doubted that if Paulus
bad been stating his own individual opinion he would have said ' puto,'
or * videtur mihi.' On this point Savigny is altogether unsupported
by textual authority.

(2) On Savigny's hypothesis a woman who passed in manum was
capite minuta only if she were sui iuris before the conventio in manum,
not if she were already in potestas. But this distinction is quite

l84 EXCURSUS J.

unknown to the authorities : Gaius says (i. 115 a, 162 ; iv. 38) that
a woman who passed in manum underwent capitis deminutio, and
does not add that this occurred only when she had been sui iuris, and
there is the same silence as to the assumed distinction in Ulpian,
reg. II. 13, and Cic. Top. 4. Savigny affirms that though in these
passages there is no express limitation to the case of independent
women, yet this limitation must be understood, in which supposition
Mr. Poste (note on Gaius i. 162) thinks there is nothing * outrageous/

(3) In reply to the question why a child, on being emancipated or
given in adoption, was capite minutus, Savigny answers * because a
necessary step in these processes was the assumption of the condition
of mancipium, a semiservile condition (" cum emancipari nemo possit
nisi in imaginariam servilem causam deductus" Dig. 4. 5. 3), and it
was this degradation, not the emancipation or adoption itself, which
produced the capitis deminutio.* Assuming the truth of this for the
sake of argument, it follows that when for the old forms of emancipa-
tion and adoption Justinian substituted new forms (notes on Bk. i.
Tit. II. 2, Tit. 12. 6 supr.) in which there was no approach to * degra-
dation,' ^mancipation and adoption must have ceased to be attended
by capitis deminutio. But the passages in the Corpus iuris which
affirm that capitis deminutio still accompanied emancipation (e.g. £k. i.
16. 3. supr. * vel contra : ' Dig. 4. 5. 3, ib. 9 etc.), are too numerous to
allow us to believe, as Savigny supposes, that they were admitted into
the Corpus by an oversight of the compilers : and as adoptio plena
extinguished patria potestas, we may almost certainly conclude that
this extinction was still attended by change of agnatic family, which
(except in one or two anomalous cases) always went hand in hand
with any extinction of patria potestas which was produced by act of
the parties.

There are certain legal facts upon which Savigny relies as abso*
lutely irreconcileable with the view adopted in the notes referred to,
and which are supplied by the cases of the Vestal Virgin and the
Flamen Dialis. As regards the former Gellius says (i. 2) 'viigo
autem Vestalis simul est capta atque in atrium Vestae deducta et
pontificibus tradita, eo statim tempore sine emancipatione ac sine
capitis minutione e patris potestate exit et ius testamenti faciendi
adipiscitur .... virgo Vestalis neque heres est cuiquam intestato
neque intestatae quisquam, sed bona eius in publicum redigi aiunt.
Id quo iure fiat, quaeritur.* From this passage Savigny infers that
— though, as is expressly stated, she had not been capite minuta — a
Vestal Virgin left her previous agnatic family. It is to be observed

CAPITIS DEMINUTIO. 1 85

that this is merely an inference : all that is stated in the text is that
on a vestal's dying intestate she had no heir ab intestato, but that her
estate escheated to the treasury, and the lawyers were puzzled to
explain this : ' id quo iure fiat quaeritur.' Savigny says the explana-
tion is simple : ' The reason why a vestal had no intestate heirs was
that a woman could have no suus heres, and that she, in particular,
had no agnates to take in default, because she had left her agnatic
family.' But if this had been the true solution, can we believe that
the Roman lawyers were unable to discover it ? It would have sug-
gested itself to the veriest tyro ; and it is inconceivable that had this
been the case Gellius could have written the words * id quo iure fiat
quaeritur.' A better explanation is perhaps to be found in the
vestal's immediate relation to the gods : her life had been devoted to
their service, and it was only consistent that, on her dying without
disposing of her property by will, it should go to the treasury for
sacrificial purposes. The case of the Flamen Dialis is exactly
parallel: see Gains iii. 114.

The real fact seems to be that Savigny has been misled by his
desire to establish ' a harmonious system of legal conceptions ' into
adopting a view against which there is an irresistible weight of
textual authority ; he has been overpowered by the word * deminutio,*
and by the analogy which, according to him, there ought to be
between deminutio maxima, media, and minima. Not to speak of
the impropriety of arguing from words in the face of the clearest
authority to the contrary, it may be observed that the jurists agree in
describing the essence of capitis deminutio as a mere change rather
than a deterioration of condition : it is a * status mutatio.' It is true
that in many cases of capitis deminutio minima (e.g. often in adop-
tion) the agnatic rights which were lost were more than outbalanced
by the rights acquired in the new family ; but the prominent idea,
the feature on which the legal mind is concentrated, is usually the
immediate loss, not the compensatory gain. Savigny himself would
not deny that there was a capitis deminutio (media) when a Roman
citizen lost his civitas, even though he acquired citizenship in another
city whereby he enjoyed far greater advantages : and similarly, it is
always a capitis deminutio (minima) if a man loses his previous
agnatic rights, even though he acquires in exchange a perhaps better
and more advantageous position in another family.

INTRODUCTION TO BOOK II.

With the second Book of the Institutes we enter upon the discus-
sion of the ius quod ad res pertinet. Instead of giving a plain state-
ment of the contents of this branch of the l^al system, Justinian
follows Gains in presenting us with a number of very perplexing cross
divisions of res, which, however, only partially correspond with those
of the earlier writer, and from which we are left to infer the meaning
in which they both use the term when they make it their basis of
classification. In three of these divisions there is no divergence
between the two writers. Res are, firstly, either in patrimonio nostro
or extra patrimonium nostrum (G. ii. i, Inst. ii. i. pr.); secondly,
they are either corporales or incorporates (G. ii. 12, Inst ii. 2. pr.);
thirdly (though this classification is rather matter of inference than
of direct statement), they are either res singulae or universitates
(G. ii. 97, Inst, ii 9. 6).

The main point wherein Justinian differs from Gaius is his further
treatment of the res in patrimonio and extra patrimonium. This dis-
tinction Gaius hardly seems to consider of much importance, for,
after stating it, he proceeds : ^ Summa itaque rerum divisio in duos
articulos deducitur, nam aliae sunt divini iuris, aliae humani;' res
divini iuris, as he goes on to remark, comprising res sacrae, religiosae,
and sanctae; res humani iuris being either publicae or privatae.
Justinian, however, makes it the basis of a further subdivision ; he
arranges the res which are extra patrimonium in subordinate classes
— ^res communes, res universitatis, res publicae, and res nuUius— the
last corresponding with Gaius' res divini iuris. Res in patrimonio,
on the other hand, either belong, or can belong, to private individuals
(res singulorum) ; they seem to be identical with the res privatae of
Gaius, and (the subject of the treatise being Private Law) are alone
important for the purpose in hand. For the ascertainment of the
meaning of the ius (privatum) quod ad res pertinet, the classifications
of res as communes, sacrae, religiosae, publicae, and universitatis
may be regarded as eliminated.

If we cast our eyes over the contents of the second and third
books of Gaius and Justinian, we shall find that, so far as the

l88 INTRODUCTION TO BOOK II.

system is concerned, the only divisions of res which are of primary
importance are, first, that into res corporales and incorporates, and,
second, that into res singulae and universitates. Res corporales
having been defined (G. ii. 13, Inst. ii. 2. i) as tangible objects, and
such tangible objects as cannot be in singulorum dominio having
already been excluded, the modes in which ownership (and inciden-
tally possession) of them can be acquired, natural (Tit. i) and civil
(Tit. 6 and 7), are explained. Res incorporales having been defined
(G. ii. 14, Inst. ii. 2. 2), the nature of some of them (viz. servitudes)
and their modes of acquisition are described in Titles 3-5 : others,
viz. obligations, occupy the greater portion of the third Book. These
are all res singulae : universitates and their modes of vesting are
examined under the heads of hereditas, whether testamentary (iL
10-25) ^^ intestate (iii. 1-9), adrogation (iii. 10), and bonorum
addictio libertatis causa (iii. 11).

Speaking briefly, then, the ius quod ad res pertinet, extending over
the whole of the second and third Books and part of the fourth Book
of the Institutes, treats of tangible external objects of property, with
their titles; real rights over them of less orbit than dominium;
inheritance, comprising the subject of legacies : two less considerable
forms of universal succession ; and finally obligations, under the two
heads of contracts and delicts or torts. All these are * res ; ' the
question still remains. What is the common property in virtue of
which they are classed together, and the law relating to them set
apart as one of the three great departments of the private code ? To
this question Mr. Poste (Gaius p. 159), following Austin, answers
that the law relating to res is set apart because it is the law of equal
rights. By this he appears to mean, that in it all persons are regarded
as equal, in the sense that exactly the same capacity of right and of
disposition is ascribed to all, and that differences in such capacity are
left out of sight, as belonging properly to the law of Persons or
unequal rights. If this is his meaning, we cannot but reject it as
entirely misleading. The division of law into law of equal and law
of unequal rights is no older than Austin, and to attribute an
acquaintance with it to Gaius is a mere anachronism. If by the ius
quod ad res pertinet Gaius had meant to express the law of equal
rights, he would not, in it, have noticed incapacities of disposition
(as he does in ii. 47. 80 sq. : cf. Inst. ii. 8. 2), incapacities of right
(as he does in ii. 87 sq. : cf. Inst. ii. 9. i and 2), disabilities in cer-
tain classes to take benefits of a particular kind (as he does in ii. 1 1 1)
pr exceptions from the ordinary rules for the execution of testaments

INTRODUCTION TO BOOK IL . 189

(ii. 109, Inst. ii. 11): it would be superfluous to multiply instances
from the law of contract tiSC delict, for the objection that nearly the
whole of the law relating to remedial rights, which as a matter of fact
is placed under the head of actions^ would on his hypothesis belong
to the law of res, is fatal by itself.

A far truer explanation of this branch of the system is given by
Professor Holland (Jurisprudence p. 85), who, following Savigny
(System § 53), defines it as the department of law which treats of
such modifications of rights as result from varieties in the objects
or in the acts with which they are concerned. * " Res " (the Roman
lawyers tell us), are either " corporeal," things which can be touched,
such as a farm, a slave : or ** incorporeal," which cannot be touched,
consisting in right only, such as a right of servitude, a right of action,
a right arising out of contract. Now " corporeal " things are obviously
what we have called the "objects" of the right; "incorporeal"
things are the advantages which the person entitled can insist upon ;
in other words, "the acts or forbearances" to which he is entitled.'
Though this may be true in the abstract, it seems erroneous to credit
Gains, to whom Justinian owed his classification, with a conscious
juristic analysis of which there is no clear indication in his writings,
and whose importance, though familiar to us, seems to have first been
placed in clear light by the continental jurists from whom it was
derived by Austin.

The true point of contact between the various res seems in reality
to be the fact that whoever has a res is, actually or prospectively, so
much the better off. If then we embrace everything by acquiring
which a man is materially better off — be it an estate or a five-pound
note, a ius in re aliena or an inheritance, a right of action on a con*
tract or a delict — under the general notion of property, we shall find
in the ius quod ad res pertinet the law of proprietary relations, which
is treated under the heads of Ownership, real rights less than Owner^
ship. Possession, Inheritance, other universal successions, Contracts
and Delicts. Of ownership or dominium, as a right or aggregate of
rights, we are told little in the abstract ; we have to gather its content
from isolated passages. That it includes the rights of use and en«
joyment is clear from the power of the dominus to separate them
off from his dominium, and vest them in other persons as distinct and
independent iura in re aliena (Tit 4. i) : from Tit. i. 12 we gather
that the owner has the ^elusive right to the thing, and may lawfully
prohibit others from interfering with his own enjoyment of it ; the
r%ht of alienation inter vivos is stated emphatically in Tit. i. 40 ;

190 . INTRODUCTION TO BOOK IT.

that of testamentary disposition is attested by the phrase of the
Twelve Tables — uti legassit super pecunia tutelave suae rei, ita ius
esto — and is expounded at length in Titles 10-25. Certain abnormal
cases, in which a person, though not owner, may, or, though owner,
may not alienate, are noticed in Tit. 8 But the bulk of the text
relating to dominium is taken up by the modes, natural and civil,
original and derivative, in which it may be acquired, the preponder-
ance of natural over civil titles, as compared with the law of Gains'
age, being particularly noteworthy. Titles 3-5 relate to the fragments
of ownership called servitudes, which correspond very roughly to the
easements and profits of English Law. Title 9 discusses the ques-
tion of agency in the acquisition of ownership, and states the changes
which had taken place since Gains in the proprietary capacity of
filiifamilias ; here too we get a reference to Possession, which is not
treated in extenso, but a knowledge of its rules is presupposed in the
Title on Usucapio, and is supplied in an Excursus below.

The transition from modes ' quibus res singulae adquiruntur ' to
those 'quibus adquiruntur per universitatem,' brings us to the law of
Inheritance ; the rules which prescribe the devolution of a man's
universitas iuris on his decease. This may take place either ex
testamento or ab intestato : the exposition of testamentary succession
occupies the remainder of the Book. Firstly (Title 10), are described
the solemnities necessary for the execution of a valid will, the qualifi^
cation required in the witnesses taking up some considerable space ;
but from these formalities soldiers, while on actual service, are exempt,
and Title 11 points out the chief anomalies involved in this exemp-
tion. In Title 1 2 are stated the qualifications required in the testator,
such as puberty and ' testamentifactio,' and the special precautions to
be observed in the execution of a blind man's will are alluded to.
Four successive Titles then explain the most ordinary contents of a
testament, viz. exheredation of issue whom the testator wishes to
exclude from all share in his succession (Title 13) ; the institution of
heres or universal successor (Title 14); substitutions 'vulgar' (Title
15) and 'pupilkry' (Title 16), answering in some degree to the
remainders so familiar in English deeds and wills. Title 17 enumer-
ates the modes in which a testament might be or become void, such
as original informality, revocation, subsequent birth of a suus heres,
and capitis deminutio of the testator : and in Title 18 is discussed
the querella inofficiosi testamenti, the right of certain relatives of the
deceased to impeach and upset his will, for not having left them
a certain minimum of his property. The division. of heredes inta

INTRODUCTION TO BOOK II. I9I

necessarii, sui et necessarii, and extranei, the necessary qualifications
of the last, and the modes in which they can accept the inheritance,
follow in Title 19, which also contains a reference to the vast revolu-
tion effected in the character of heres by Justinian's own introduction
of the * inventory.' Legacies are treated at length in Titles 20 and
and 21, and the successive limitations placed upon their amount in
Title 22. The last three Titles are occupied with the subject of
fideicommissa, trust successions and bequests, the legislation relating
to them, and codicilli, a form of disposition resembling a will, but
incapable of directly passing the deceased's universitas iuris, and
employed for the purpose of creating fideicommissa, or of adding to
or modifying a previously executed testament.

No small amount of criticism has been passed upon the grouping
together in one department of a legal system of the topics which are
comprised under the ius quod ad res pertinet, and which, we may
truly say, would not be co-ordinated upon any other principle of
classification. The most solid objection is the inclusion of the law
of Inheritance and that of obligations in the same division with that
of property and other real rights. The place of the first is due to its
character as one of the modes of universal succession, among which
it ranks with adrogation, bonorum addictio libertatis causa, and (in
Gains) conventio in manum, hereditatis in iure cessio, and venditio
bonorum. Through this false idea of proportion the importance of
Testamentary and Intestate succession, as an independent branch of
law, is altogether obscured : moreover, as Savigny has remarked,,
these modes 'quibus res per universitatem adquiruntur' are ex?
dusively regarded as titles to rights, whereas they are equally sources
of obligations. Accordingly, the German jurists, in their systematic
treatises on Roman law, here abandon the Roman classification, and
make Inheritance one of their main divisions, instead of subordinating
it to that between titles to res singulae, and titles to universitates.

Why obligations are * res ' has been already pointed out. When
an obligatio is said to be a res, the active, or creditor's side of the
relation is intended. The promisee in a contract, unless the promise
is performed, and the plaintiff in an action on delict, have the power
of recovering damages by action ; this partial control over another's
freedom of action is money's worth, and falls under the category of
property, in the wide sense in which the term has been used above.
An even more intimate point of contact between the law of owner-
ship and the law of obligations may be found in the ultimate purpose
of the largest and most important class of the latter, viz. the creation

ig2 INTRODUCTION TO BOOK IL

of real rights, or the communication of their exercise and enjoyment^.
This co-ordination however of obligations with rights in rem is re-
garded by the Austinian school as an egregious error of arrangement,
on the ground that the distinction between rights, according as they
are real or personal, is a radical one for purposes of classification :
yet it is adopted by the continental writers on Roman law, who sub-
divide Vermogensrecht, or Property law, into Sachenrecht, com-
prising ownership, possession, and iura in re aliena, and the law of
obligations, whether arising ex contractu or ex delicto. Indeed, the
very treatment of contracts and delicts together, as facts or events
from which obligations arise, is considered faulty by Mr. Hunter,
because, as he alleges, the sole connection between them was that
they formed two subdivisions of actiones in personam. * In the state-
ment of claim it was alleged that the defendant ought to do or pay
something. In an action, then, upon a contract or delict, the for-
mulae were very similar, while both stood in marked contrast to the
formula in an actio in rem. It was easy to understand, therefore, why
the Roman writers included contract and delict under the common
designation of obligatio ' (Roman Law, Introduction p. xxxvi). It is
not however the action, but the right which the action is designed
to enforce, to which attention should be directed; and whether a
man refuses to perform his contract, or violates a right in rem, the
right which arises from the refusal or the violation is a right in per-
sonam. It may be replied that this involves a confusion between
antecedent and remedial rights : but this is a purely party objection
which Gaius could not have been expected to answer. On the other
hand, Mr. Hunter may himself be met by the charge that he regards
contracts from the wrong point of view. A contract may be analysed
into two elements, the agreement or promise, and the obligation which
is annexed to it by law. Now Roman and modem law differ as
regards the importance which they respectively attribute to these two
elements : the former bringing the obligation into the foreground,
the latter rather dwelling on the consensus of the parties. Yet the
Roman view here seems to be strictly correct and lawyer- like, for a
promise without an obligation, such as English lawyers call a nudum
pactum, is in the eye of the law non-existent, while an obligation has
an independent legal existence : it is the obligation, consequently,
which for legal purposes should be deemed of primary importance,
and constituted a summum genus for purposes of classification. If
contracts are not to stand isolated and out of all connection with
* Cf. Savigny, System i. p. 37a.

INTRODUCTION TO BOOK It. 1 93

other parts of the system, they must, in reason, be co-ordinated with
other facts from which the same kind of legal relation, namely
obligation, arises. And from this point of view Mr. Hunter is him-
self inconsistent, for he co-ordinates with contracts certain other
sources of obligation, viz. quasi-contract, and what he calls Status,
while he omits delict from this connection altogether. Under Status,
as a source of obligation, he groups the ^Etmily relations of husband
and wife, and parent and child ; but the incorrectness of this had
been long before shown by Savigny (System § 58), who remarks that
these relations, and that produced by contract or delict, are altogether
disparate ; the latter being the partial and temporary subjection of one
person to the will of another, the former being permanent, and having
a content natural and moral as well as legal : its legal content being
not so much the personal right against the other party as a real right
to non-disturbance by the world at large \

Important changes had taken place in the law comprised in this
second Book since the time of Gaius. In respect of modes of
acquisition the ius gentium had reaped another triumph ; in iure
cessio and mancipatio, the oldest titles of the ius civile, had already
become practically obsolete, and the latter was formally abolished by
Justinian, who also swept away, in its train, a troublesome distinction
and much antiquated learning. The simplification of law effected by
the recognition of traditio or mere delivery as the universal mode of
conveying res singulae is however perhaps no more to be admired
than Justinian's masterly codification, or more properly reform, of the
law of Usucapio or Prescription, which had hitherto consisted of two
different sets of rules, the one civil, the other praetorian, whose
divergence had been occasioned by the absurd survival of the doc-
trine that provincial soil could not be owned by private individuals.
The great change in the proprietary rights of filiifamilias, initiated
under Constantine by the institution of quasi-castrense and adventi-
tium peculium, was consummated by Justinian himself \ the survival
of the patria potestas was thus made tolerable by the partial surrender
of one of its most valuable privileges. The direct acquisition of
possession, and so of ownership through agents, had been sanctioned
by a constitution of Severus, based upon a consensus among the
jurists, who in Gaius' time had been divided upon the question ; and
the interests of mortgagors were carefully guarded by Justinian's
regulations as to the exercise of powers of sale and foreclosure. In
the law of wills, apart from changes in their form, and the introduc-
^ Cf. Holland's Jarisprudence pp. iia and 165.
O

194 INTRODUCTION TO BOOK 11.

tion, already noticed, of the * inventory,' by far the most important
development was that effected by Justinian's assimilation of legacies
and fideicommissa. When Gaius wrote, prescribed forms were still
required for the former, which were also recovered by different
remedies; but, by requiring the observance of certain evidentiary
solemnities in the creation of fideicommissa, by freeing legacies from
the trammels of language, and by the abolition of the formulary pro-
cedure, later emperors had removed many of the distinctions between
them, and such as had remained were swept away by Justinian's
ordinance, that in future the rules and remedies of each should apply
to both indifferently, which also presented an opportunity for con-
structing one consistent enactment from the provisions of the senatus
consulta Trebellianum and Pegasianum, the latter of which had
half undone the judicious rule introduced by the former for the
assimilation of fideicommissarii to directi heredes. Many unreason-
able prohibitions, such as those of legacies to incertae personae,
poenae nomine, and post mortem heredis, were also abolished by
Justinian, whose changes in connection with the querella inofiiciosi
testamenti, both before and after the publication of the Institutes, are
noticed in the notes to Title i8.

LIBER SECUNDUS.
I.

DE RERUM DIVISIONE.

SUPERIORE Hbro de iure personarum exposuimus: modo
videamus de rebus, quae vel in nostro patrimonio vel extra
nostrum patrimonium habentur. quaedam enim natural! iure
communia sunt omnium, quaedam publica, quaedam universi-
tatis, quaedam nulHus, pleraque singulorum, quae variis ex
causis cuique adquiruntur, sicut ex subiectis apparebit.

Et quidem natural! iure communia sunt omnium haec : aer
et aqua profluens et mare et per hoc litora maris, nemo igitur
ad litus maris accedere prohibetur, dum tamen villis et monu- 1
mentis et aedificiis abstineat, quia non sunt iuris gentium,
sicut et mare. Flumina autem omnia et portus publica sunt :
ideoque ius piscandi omnibus commune est in portubus

Tit. I. By res extra patrimonium seems to be meant a thing which is
legally incapable of being owned by a private person, i.e. it does not
cease to be in patrimonio by not having, or by ceasing to have, a private
owner. Extra patrimonium is thus equivalent to extra commercium :
but in the former the res is viewed as incapable of private dominium,
in the latter rather as incapable of acquisition by a private person.
Having drawn the distinction, Justinian proceeds to classify res extra
patrimonium under four heads.

§ 1. Cf. Plautus, Rud. 4. 3. 36 ' mare quidem commune certo'st omni-
bus,' Cicero, pro Rose. 26 ' quid tam est commune, quam spiritus vivis,
mare fluctnantibus, litus eiectis?' Seneca, benef. 4. 28, Ovid, metam. 6.
349. The seashore up to the line of the highest tide in flood or storm
(hibemus~per hiemem, vel ventis excitatus), § 3, was communis because
incapable of appropriation, though if by driving piles one erected a
building upon any part of it he acquired property in the structure (but
not in the soil, § 5 inf.) so long as it stood. This, however, could not
be done without a decretum of the praetor. Dig. 41. i. 50. The modem
doctrine that the seashore between high and low tide belongs to the
state is derived from Celsus, Dig. 43. 8. 3.

O 2

196 INSTJTUTIONUM UBRI QUATTUOR. \Ub. II.

2 fluminibusque. Est autem litus maris, quatenus hibemus
fluctus maximus excurrit. Riparum quoque usus publicus

3 est iuris gentium, sicut ipsius fluminis : itaque navem ad eas

4 appellere, funes ex arboribus ibi natis religare, onus aliquid in
his reponere cuilibet liberum est, sicuti per ipsum flumen
navigare. sed proprietas earum illorum est, quorum praediis
haerent : qua de causa arbores quoque in isdem natae eorun-

5 dem sunt. Litorum quoque usus publicus iuris gentium est,
sicut ipsius maris : et ob id quibuslibet liberum est casam ibi
imponere, in qua se recipiant, sicut retia siccare et ex mare
deducere. proprietas autem eorum potest intellegi nuUius esse,
sed eiusdem iuris tsse^ cuius et mare et quae subiacent man,

6 terra vel harena. Universitatis sunt, non singulorum veluti
quae in civitatibus sunt, ut theatra stadia et similia et si qua
alia sunt communia civitatium.

§ 2. Res pubiicae seem to be divisible into two classes, (i) Things
which belong to and are used by the state as by a private person : e. g.
public slaves, money, stores, etc. : these are not properly extra patri-
monium nostrum. (2) Things which are publico usui destinatae, (i.e.
not communes generally, but only to cives), e.g. roads, harbours, public
rivers (i. e. * flumina perennia ' Dig. 43. 12. 3) and their beds. The banks
oi public rivers were private property, subjected by the law to a kind of
servitude in favour of all members of the state, § 4 inf.

§ 6. Universitas here seems to be used as equivalent to ci vitas, i. e. a
Roman city or municipium. Taken in this sense, res universitatis are
analogous to res pubiicae, and are divisible in the same manner. Such
property only of a provincial city as is municipum usui destinatum is
extra patrimonium : a res publica is a thing which any civis may use :
a res universitatis is one which may be used as of right only by the
members of the universitas.

Taken in its widest sense, universitas is fairly equivalent to the 'juristic
person' of modem writers. For the definition and characteristics of
juristic persons in general reference may be made to Holland^s Juris-
prudence p. 225 sq. : those recognised by Roman law may be sub-
divided into universitates personarum and universitates bonorum. [The
latter should not be confounded with so-called universitates rerum (dis-
tantium), such as a flock of sheep, which have no independent legal
existence apart from the elements which go to make them up:— here
both whole and parts are actual and corporeal ; see Dig. 7. i. 70. 3 : 41.
I. 7-11 : 41.3-23. pr.]

A universitas personarum (or corporation) is an aggregate of natural
persons forming an ideal whole, regarded by the law as a * person ' distinct
from its members for the time being, because its existence does not
cease along with theirs, and invested with rights and subject to duties.

Tit. I.] DE RERUM DIVISIONE. 197

NuUius autem sunt res sacrae et religiosae et sanctae : quod
enim divini iuris est, id nuUius in bonis est. Sacra sunt, quae 7
rite et per pontifices deo consecrata sunt, veluti aedes sacrae 8
et dona, quae rite ad ministerium dei dedicata sunt, quae
etiam per nostram constitutionem alienari et obligari pro-
hibuimus, excepta causa redemptionis captivorum. si quis
vero auctoritate sua quasi sacrum sibi constituent, sacrum
non est, sed profanum. locus autem, in quo sacrae aedes
aedificatae sunt, etiam diruto aedificio adhuc sacer manet,
ut et Papinianus scripsit. Religiosum locum unusquisque 9

other than those of the individuals, taken singly, of which it is com-
posed : so that legal relations can subsist between it and them and any
number of them no less than between it and other persons generally.
Such corporations may be exemplified by the state (Dig. 49. 14, Cod.
10. i), ecclesiastical bodies and commercial associations, 'collegia pis*
tonun, fabrorum,' etc. (Dig. 3. 4. i. pr.)

Universitates bonorum are juristic persons not necessarily supported
by any natural person : they are so much property, or masses of rights '
and duties (Giiterinbegriff) personified and regarded as capable of per-
petuating their separate existence and fictitious unity indefinitely, e.g.
the treasury or fiscus : foundations such as churches, hospitals, and
almshouses : hereditates iacentes, i. e. inheritances on which no heir has
yet entered, and the ' estate ' or universitas iuris of a citizen lying in cap-
tivity with the enemy. Dig. 3. 5. 19. 5. Savigny*s dictum as to the origin
of corporations (which is stated by Mr. Poste, Gaius p. 156) seems''
untrae in the face of Dig. 34. 5. 20, from which it may be argued that
persons could always incorporate themselves for lawful purposes without
the special assent of the sovereign : cf. Cod. i. 3. 24. 28. 29.

§ 7. When it is said that res sacrae, religiosae, and sanctae are res
nullius, what is meant is rather that they were nullius in bonis, i. e. extra
patrimonium. Res nullius, in the more technical sense, are those things
which 'fiunt singulorum' by occupatio, §§ 12-18 inf.

§ 8. Res sacrae could become so only by being dedicated under
public authority by a priestly ceremony (for which in the pagan time see
Cic pro domo 47, Ovid, Fast. i. 610, Valer. Max. 5. 10), in the later
period the imperiad sanction seems to have been sufficient. Dig. 5. 3.
50. I ; II. 7. 8. pr. By consecration they ceased to be in commercio and
became inalienable, though in Justinian's time moveable res sacrae
might be sold for the purpose mentioned in the text (cf. Gregor. ep.
6. 13, Socrates, trist. eccl. 7. 21) and also for the support of the poor
in time of famine, and for payment of the debts of the church. Cod.
I. 2. 21, Nov. 120. 10. If sacred ground was captured by the enemy, it
became pro^um, though by a kind of postliminium it could recover its
former character, Dig. 11. 7. 36.

§ 9. Gaius (ii. 4) describes res religiosae as things ' quae dis manibus

198 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

sua voluntate facit, dum mortuum infert in locum suum.
in communem autem locum purum invito socio inferre non
licet : in commune vero sepulcrum etiam in^itis ceteris licet
inferre. item si alienus usus fructus est, proprietarium placet
nisi consentiente usufructuario locum religiosum non facere.
in alienum locum concedente domino licet inferre: et licet
postea ratum habuerit, quam illatus est mortuus, tamen

10 religiosus locus fit. Sanctae quoque res, veluti muri et portae,
quodammodo divini iuris sunt et ideo nuUius in bonis sunt,
ideo autem muros sanctos dicimus, quia poena capitis con-
stituta sit in eos, qui aliquid in muros deliquerint. ideo et
legum eas partes, quibus poenas constituimus adversus eos
qui contra leges fecerint, sanctiones vocamus.

11 Singulorum autem hominum multis modis res fiunt: qua-
rundam enim rerum dominium nanciscimur iure naturali, quod,
sicut diximus, appellatur ius gentium, quarundam iure civili.
commodius est itaque a vetustiore iure incipere. palam est
autem vetustius esse naturale ius, quod cum ipso genere hu-
mano rerum natura prodidit : civilia enim iura tunc coeperunt,

relictae sunt:' here little seems to be expressed by the term except
ground used for burial, though there is reference to moveable res
religiosae in Bk. iv. 18. 9 inf., and Dig. 48. 13. i. As is said in the text,
soil could be made religiosus by its full owner burying a corpse in it, or
(Dig. II. 7. 4) being buried in it himself: hence, as Gaius points out
(ii. 7), provincial soil could not properly become religiosus because it
could not be owned ex iure Quiritium by a private person: however,
* pro religioso habebatur.' Ground which had thus become divini iuris was
to a certain extent private property, as in the case of family burial-
places : it was extra patrimonium only in the sense that it could not be
diverted from the purpose to which it had been devoted.

§ 10. Under the older law res were made sanctae by a religious cere-
mony : * sanctum ... a sanguine hostiae . . . nihil enim sanctum apud
veteres dicebatur, nisi quod hostiae sanguine esset consecratum aut con-
spersum' Isidor. orig. 15. 4, the result being *ut violari sine poena (ma-
iore) non possent * Aelius, Gall, apud Festum, * sancire est confirmare et
irrogatione poenae ab iniuriis defendere' Isidor. Lc. It is probably the
retention of the penalty without the ceremony of consecration which
makes Gaius (ii. 8) speak of them as ' quodammodo divini iuris.'

§ 11. Having excluded the consideration of res which cannot be the
private property of individuals, Justinian proceeds to point out the
various modes in which ownership over res singulae (corporales) can be
acquired. Before passing on to these, it is necessary to note briefly th6

Tit. ij DE RERUM DIVISIONE. 199

cum et civitates condi et magistratus creari et leges scribi
coeperunt.

various meanings which the term dominium (ownership) bore in the
course of legal history and its relation to other cognate notions.

Full Roman ownership, dominium ex iure Quiritium, had two con-
ditions. It could be exercised only over such objects as were in com-
mercio (and therefore not over res divini iuris and res publicae, espe-
ciaUy provincial soil) : and it could be vested only in persons who had
the commercium (p. 27 supr.), i. e. cives, Latini, and peregrin! to whom
it might have been granted as a special favour. With the rapid pro-
vincial extension of Rome and the large influx of peregrini, the strict
'civil' Roman dominium soon reproduced itself in a * natural' counterpart.
He who had the commercium, though he could not ' own ' provincial soil,
could stand to it in a very similar relation, called possessio properly,
and later even, though laxly, dominium. Similarly the peregrinus,
though he could not be dominus ex iure Quiritium, had a sort of
property : the praetor granted him actions for its recovery differing only
in small technical points from those which lay at the suit of the full
citizen. In short, we arrive at the idea of a new kind of dominium
(Gains ii. 40) called by the modems dominium ex iure gentium, or
gentile ownership, because recognised by the ius gentium, though not
by the ius civile: acquirable only in modes not peculiar to the latter,
and differing from full Roman ownership also in respect of the persons
in whom it could be vested, in the objects over which it could be exer-
cised, and in the remedies by which it was recovered.

This distinction is one between civil and natural law. But we also
find another, implicated with the former only, and originating in de-
fective conveyances. In certain things (res mancipi) property could be
transferred ex iure Quiritium only by a precise observance of the manci-
pation form. Mr. Poste has pointed out (Gains p. 172) that this itself
was at first probably a simplification : it was easier to convey a res
mancipi than a res nee mancipi, for the latter at the time of which we
speak required the cumbrous process of in iure cessio and most of the
formalities of an action-at-law : the former was a mere private transac-
tion. But when traditio or bare delivery was recognised as able to pass
the property in res nee mancipi ' the tables were turned : things, which
formerly were most difficult, were now most easy to aliene : the term
mancipable, which before denoted an enlargement of the powers of
alienation, now denoted a restriction,' for res mancipi could not be con-
veyed by the new and simple process of traditio. Still, the practice of
traditio extended itself largely also to res mancipi, but the effect of this
was to leave the dominium in the transferor; all that the transferee
acquired was bona fide possession, he was said to have the thing *in
bonis ; * by later writers he is called * bonitarian ' owner. In a short time
(Tit. 6 inf.) his possession ripens by prescription into full ownership :
meanwhile his transferor's rights over the object (termed nudum ius
Quiritium) are merely nominal, and against him sometimes (note (3) on

aoo INSTITUTIONUM LIBRI QUATTUOR. [Ub, 11.

12 Ferae igitur bestiae et volucres et pisces^ id est omnia
animalia, quae in terra man caelo nascuntur, simulatque ab
aliquo capta fuerint, iure gentium statim illius esse incipiunt :
quod enim ante nullius est, id natural! ratione occupanfi con-
ceditur. nee interest, feras bestias et volucres utrum in suo
fundo quisque capiat, an in alieno : plane qui in alienum fun<-
dum ingreditur venandi aut aucupandi gratia, potest a domino,
si is providerit, prohiberi ne ingrediatur. quidquid autem
eorum ceperis, eo usque tuum esse intellegitur, donee tua cus-
todia coercetur: cum vero evaserit custodiam tuam et in na-
turalem libertatem se receperit, tuum esse desinit et rursus

Bk. iv. 6. 4 inf.) no less than against the rest of the world, the transferee,
as bona fide possessor, has the actio Publiciana for the recovery of the
property if taken out of his hands. Other cases of ' bonitarian * owner-
ship, though less common than this, sprang up from the praetorian legal
innovations, e.g. those of praetorian universal succession in bankruptcy
and upon death : in these the proper remedy was some other fictitious
action (Gains iv. 35).

In the time of Gains this distinction between dominium ex iure Quiri-
tium and in bonis habere is of every-day occurrence, but, except in
respect of manumission (note on Bk. i. 5. i supr.), the differences between
them are not of any practical importance. When Justinian had abolished
the old points of difference between solum Italicum and solum pro-
vinciale (Tit. 6 pr. inf.. Cod. 7. 31 ; 5. 13. 15), and peregrini had practi-
cally become unknown, all these refinements disappeared : there was
but one dominium left ; the only contrast was between it and possessio.
The survival of the actio Publiciana in the Corpus iuris is explained by
Mr. Poste, Gains p. 188.

Some of the modes in which ownership is acquired in res singulae are
common to most systems of law : others are peculiar to this people or
that. The former the Romans supposed to have been prescribed or
sanctioned by the law of nature, and therefore to be prior in time
(vetustius ius) to those which are peculiar : for a peculiar mode of ac-
quisition exists only in virtue of municipal law or custom, which is itself
the outcome of political society, and poiitical association was preceded
in their view (derived from the Stoics, p. 37 supr.) by ages in which
nature's was the only law, and civitates, magistratus, and leges had not
yet come into existence. It is hardly necessary to observe that this
view is quite erroneous : the history of Roman law alone might con-
vince us that among primitive peoples absolute, private ownership is a
thing at first unknown, and that when it has been developed, alienation
is the exception, not the rule, and the modes in which it is effected
formal and essentially ' iuris civilis.*

§ 12. The first ' natural * mode of acquisition discussed by Justinian is

Tit. I J DE RERUM DIVISIONE. aoi

occupantis At. naturalem autem libertatem recipere intelle-
gitur, cum vel oculos tuos effugerit vel ita sit in conspectu tuo,
ut difiicilis sit eius persecutio. Illud quaesitum est, an, si fera 13
bestia ita vulnerata sit» ut capi possit, statim tua esse intelle-
gatur. quibusdam placuit statim tuam esse et eo usque tuam
videri, donee earn persequaris, quodsi dcsieris persequi, de-
sinere tuam esse et rursus fieri occupantis. alii non aliter
putaverunt tuam esse, quam si ceperis. sed posteriorem sen*
tentiam nos confirmamus, quia multa accidere solent, ut earn
non capias. Apium quoque natura fera est. itaque quae in 14
arbore tua consederint, antequam a te alveo includantur, non
magis tuae esse intelleguntur, quam volucres, quae in tua
arbore nidum fecerint : ideoque si alius eas incluserit, is earum
dominus erit. favos quoque si quos hae fecerint, quilibet exi-
mere potest, plane Integra re si provideris ingredientem in
fundum tuum, potes eum iure prohibere ne ingrediatur. exa-
men, quod ex alveo tuo evolaverit, eo usque tuum esse intelle-
gitur, donee in conspectu tuo est nee difficilis eius persecutio
est : alioquin occupantis fit. Pavonum et columbarum fera 15
natura est. nee ad rem pertinet, quod ex consuetudine avolare
et revolare solent : nam et apes idem faciunt, quarum constat
feram esse naturam : cervos quoque ita quidam mansuetos
habent, ut in silvas ire et redire soleant, quorum et ipsorum
feram esse naturam nemo negat. in his autem animalibus,

occupatio, the advisedly taking possession of an object which has no
owner (res nullius) with the intention of appropriating it. The following
kinds of res nullius are mentioned in the text : wild animals, birds, and
fishes, §§ 12-16: enemies' property, § 17: stones and pebbles found on
the seashore, § 18 : islands rising in the sea, § 22 : treasure-trove, § 39 :
and res derelictae, § 47. The Romans had no game laws, which in
England grew out of feudalism and the great forests of the Norman
kings and nobility. Some writers have maintained the contrary, but
Dig. 47. 10. 13. 7 is explicit to the effect that the landowner can prevent '
others (even by force, Cic pro Caec. 8, Dig. 43. 16. 3. 9) from coming
on his land, but not from exercising occupatio when there. It would
seem from the text that express notice not to enter was necessary to
constitute a trespass in every case.

§ 18. The view here confirmed by Justinian was that most generally
held, Dig. 41. I. 5. I : the other was that of Trebatius, whose opinion is
highly spoken of in general in Tit. 25 pr. inf.

§ 16. Animals wild by nature, but which had been partially tamed,

%0% INSTITUTIONUM LIBRI QUATTUOR. [Lib. FI.

quae ex consuetudine abire et redire solent, talis regula com-
probata est, ut eo usque tua esse intellegantur, donee animum
revertendi habeant : nam si revertendi animum habere desi-
erint, etiam tua esse desinunt et fiunt occupantium. rever-
tendi autem animum videntur desinere habere, cum rever-

16 tendi consuetudinem deseruerint. Gallinarum et anserum
non est fera natura idque ex eo possumus intellegere, quod
aliae sunt gallinae, quas feras vocamus, item alii anseres, quos
feros appellamus. ideoque si anseres tui aut gallinae tuae
aliquo casu turbati turbataeve evolaverint, licet conspectum
tuum effugerint, quocumque tamen loco sint, tui tuaeve esse
intelleguntur : et qui lucrandi animo ea animalia retinet,

17 furtum committere intellegitur. Item ea, quae ex hostibus
capimus, iure gentium statim nostra fiunt: adeo quidem, ut
et liberi homines in servitutem nostram deducantur, qui
tamen, si evaserint nostram potestatem et ad suos reversi

18 fuerint, pristinum statum recipiunt. Item lapilli gemmae et
cetera, quae in litore inveniuntur, iUre naturali statim inven-

19 toris fiunt. Item ea, quae ex animalibus dominio tuo subiectis
nata sunt, eodem iure tibi adquiruntur.

were thus treated differently from those which were genuinely wild : the
latter became res nullius again directly they were out of one's control,
the former only when they had ceased to have the animus revertendi.

§ 17. The rule of the ius gentium is stated by Cyrus in Xenoph. Cyrop.
7* 5- 73 v^lJ^ov iv iracriy di^/><oiroiS (i/didc coriv, orav noXffiovvTiap noXis <iX^,
T&v €X6»T(aif f urai r^ xP^t^'*'^' "^he Romans did not adhere consistently
to the principle : property taken from the enemy on his own soil be-
longed to the state, and became 'singulorum' only by sale or grant,
Dionys. Halic. antiq. 7. 63 : the rule of occupatio by individuals ap-
plied only to hostile property within the territory of the other belligerent ;
'quae res hostiles apud nos sunt non publicae sed occupantium fiunt'
Dig. 41. I. 51. For restoration by postliminium see on Bk. i. 12. 5 supr.,
and for the influence of this principle in modem International Law,
Maine, Ancient Law p. 246 sq.

§ 19. By eodem iure may be meant either * iure naturali ' or * dominio.'
Justinian passes from occupatio to a second title of natural law, vis.
accessio, by which is meant the accrual (l) of res nullius or (2) of res
alienae to our own property. Each of these heads comprises a number
of distinct cases, most of which are known by specific names. Under
accessio rerum nullius may be grouped (a) accession through natural
increment, mentioned in this section ; (d) alluvio, § 20 ; (c) formation of
an island in a river, § 22 ; (d) dereliction of a river-bed, § 23 : under ac-

Tit. I.] DE RERUM DIVISIONE. 203

Praeterea quod per alluvionem agro tuo flumen adiecit, 20
iure gentium tibi adquiritur. est autem alluvio incrementum
latens. per alluvionem autem id videtur adici, quod ita paula-
tim adicitur, ut intellegere non possis, quantum quoquo mo-
mento temporis adiciatur. Quodsi vis fluminis partem aliquam 21
ex tuo praedio detraxerit et vicini praedio appulerit, palam
est earn tuam permanere. plane si longiore tempore fundo
vicini haeserit arboresque, quas secum traxerit, in eum fundum
radices egerint, ex eo tempore videntur vicini fundo adquisitae
esse. Insula, quae in mari nata est, quod raro accidit, occu- 22
pantis fit : nullius enim esse creditur. at in flumine nata, quod
frequenter accidit, si quidem mediam partem fluminis teneat,
communis est eorum, qui ab utraque parte fluminis prope
ripam praedia possident, pro modo latitudinis cuiusque fundi,
quae latitudo prope ripam sit. quodsi alteri parti proximior
sit, eorum est tantum, quia ab ea parte prope ripam praedia
possident. quodsi aliqua parte divisum flumen, deinde infra
unitum agrum alicuius in formam insulae redegerit, eiusdem
permanet is ager, cuius et fuerat. Quodsi natural! alveo in 23
universum derelicto alia parte fluere coeperit, prior quidem
alveus eorum est, qui prope ripam eius praedia possident, pro
modo scilicet latitudinis cuiusque agri, quae latitudo prope
ripam sit, novus autem alveus eius iuris esse incipit, cuius et
ipsum flumen, id est publicus. quodsi post aliquod tempus ad
priorem alveum reversum fuerit flumen, rursus novus alveus
eorum esse incipit, qui prope ripam eius praedia possident.
Alia sane causa est, si cuius totus ager inundatus fuerit. 24

CQSsio rerum alienarum {e) adjunctio, which comprises inaedificatio,
§§ 29, 30, plantatio and satio, §§ 3I9 32, and accession of writing to parch-
ment, § 33 (cf. § 26), and of canvas or board to the picture painted
thereon^ § 34 ; (/) confusio and commixtio, §§27 and 28.

§ 22. An island fonned in a river is acquired by accessio only when
the flumen is publictmi (note on § 2 supr.) : if the stream is not publicum
its bed already belongs to the riparian owners. The rule for determining
the ow^iership of insula nata is incorrectly stated in the text : it belonged
exclusively to the riparian owner or owners on one side only when a line
drawn down the centre of the river-bed would pass wholly to the right or
left of it. If such a line cut it at all, the ownership was divided (' non pro
indiviso, sed regionibu» quoque divisis ' Dig. 41. 1, 39) even though it was
liaur from the exact middle.

a04 INSTJTUTIONUM LIBRI QUATTUOR. [Lib. II.

neque enim inundatio speciem fundi commutat et ob id,
si recesserit aqua, palam est eum fundum eius manere, cuius
et fuit.
25 Cum ex aliena materia species aliqua facta sit ab aliquo,
quaeri solet, quis eorum natural! ratione dominus sit, utrum
is qui fecerit, an ille potius qui materiae dominus fuerit:
ut ecce si quis ex alienis uvis aut olivis aut spicis vinum
aut oleum aut frumentum fecerit, aut ex alieno auro vel ar-
gento vel acre vas aliquod fecerit, vel ex alieno vino et melle
mulsum miscuerit, vel ex alienis medicamentis emplastrum
aut coUyrium composuerit, vel ex aliena lana vestimentum
fecerit, vel ex alienis tabulis navem vel armarium vel subsel-
lium fabricaverit. et post multas Sabinianorum et Proculiano-
rum ambiguitates placuit media sententia existimantium, si ea
species ad materiam reduci possit, eum videri dominum esse,
qui materiae dominus fuerat, si non possit reduci, eum potius
intellegi dominum qui fecerit: ut ecce vas conflatum potest
ad rudem massam aeris vel argenti vel auri reduci, vinum
autem aut oleum aut frumentum ad uvas et olivas et spicas
reverti non potest ac ne mulsum quidem ad vinum et mel re-
solvi potest, quod si partim ex sua materia, partim ex aliena
speciem aliquam fecerit quisque, veluti ex suo vino et alieno
melle mulsum aut ex suis et alienis medicamentis emplastrum
aut collyrium aut ex 3ua et aliena lana vestimentum fecerit,
dubitandum non est hoc casu eum esse dominum qui fecerit :
cum non solum operam suam dedit, sed et partem eiusdem

§ 26. It is usual to enumerate, as a third natural mode of acquisition,
spe<^ificatio, the converting of another's material into a new form or
' species,' as in the illustrations given in the text. The Proculians argued
the case on the analogy of occupatio, and regarded the giver of the form
as the owner of the product ; a view which seems to have commended
itself to Ulpian (' mutata forma prope interimit substantiam rei * Dig. lo.
4. 9. 3). The Sabinians viewed it as a kind of accessio, and denied any
transfer of ownership, Gaius ii. 79. The intermediate opinion, confirmed
by Justinian, is found in Gaius (Dig. 41. i. 7. 7), Paulus (ib. 24), and other
jurists. In Justinian, consequently, specification as a mode of acquisition
occurs only when * ea species ad materiam reduci non possit,' and is really
a form of occupatio, as appears fix>m the words of Ulpian cited above,
and the expression in the Digest ^ quod factum ^st antea nullius fuerat.'
Of course the giver of the form had in all cases to pay the owner of the
material its full valtte, on Ike principle ^neminem cum alterius detrimento

Tit. 1.] DE RERUM DIVISIONE. %0$

materiae praestavit. Si tamen alienam purpuram quis intexuit 26
suo vestimento, licet pretiosior est purpura, accessionis vice
cedit vestimento : et qui dominus fuit purpurae, adversus eum
qui subripuit habet furti actionem et condictionem, sive ipse
est qui vestimentum fecit, sive alius, nam extinctae res licet
vindicari non possint, condici tamen a furibus et a quibusdam
aliis possessoribus possunt. Si duorum materiae ex volun- 27
tate dominorum confusae sint, totum id corpus, quod ex con*
fusione fit, utriusque commune est, veluti si qui vina sua
confuderint aut massas argenti vel auri conflaverint. sed si
diversae materiae sint et ob id propria species facta sit, forte
ex vino et melle mulsum aut ex auro et argento electrum,
idem iuris est : nam et eo casu communem esse speciem non
dubitatur. quodsi fortuitu et non voluntate dominorum con-
fusae fuerint vel diversae materiae vel quae eiusdem generis
sunt, idem iuris esse placuit Quodsi frumentum Titii tuo 28
frumento mixtum fuerit, si quidem ex voluntate vestra, com-
mune erit, quia singula corpora, id est singula grana, quae
cuiusque propria fuerunt, ex consensu vestro communicata

fieri locupletiorem/ It has been much disputed whether bona fides is
essential to acquisition by specificatio : the passages bearing upon this /
point arc Dig. 13. 1. 13 ; ib. 14. 3 ; 10. 4- ". 3 ; 41. 3. 4. 20 ; 47. a. 52. 14,
and seem to establish the affirmative.

§ 26. The principles which govern this case of the purple are as follow : ^
accessio cannot affect the right to things ' quae singulae suam speciem
retinent ' or ' quae distant,' but only to those which are so combined that
the independent e5tistence of the one is lost in the other ('quae cohae*
rent') Dig. 6. i. 23. 5 : when this is the case, and the one thing forms a
whole by itself (i. e. is a res ' in qua propria qualitas spectatur,' such as
a cup, a statue, a ship, a building, a garment), it absorbs the other irre-
spective of the latter's relative value, Dig 41. i. 26. i ; ib. 27. pr., and the
former owner of the purple cannot sue for it by real action (vindicatio)
because its independent existence is gone. But, supposing the case to be
one of theft (the definition of which was very wide, see on Bk. iv. i. i
inf.), he could bring the actio furti for the recovery of a penalty for the
delict (ib. 19) and also the condictio furti va for the value of the purple. If
It was not theft, but the aliena purpura had been bona fide possessed by
the person who wove it into his garment, the only action which would lie
was a condictio sine causa, also applicable in the cases mentioned in the
following sections, its ground being the enrichment of the one party at the
expense of the other without any consideration, which affords the clue to
the meaning of the * quidam alii possessores.'

S,o6 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

sunt, quodsi casu id mixtum fuerit vel Titius id miscuerit
sine voluntate tua, non videtur commune esse, quia singula
corpora in sua substantia durant nee magis istis casibus com-
mune fit frumentum, quam grex communis esse intellegitur,
si pecora Titii tuis pecoribus mixta fuerint : sed si ab alter-
utro vestrum id totum frumentum retineatur, in rem quidem
actio pro modo frumenti cuiusque competat, arbitrio autem
iudicis continetur, ut is aestimet, quale cuiusque frumentum

29 fuerit. Cum in suo solo aliquis aliena materia aedifi-
caverit, ipse dominus intellegitur aedificii, quia omne quod
inaedificatur solo cedit nee tamen ideo is, qui materiae
dominus fuerat, desinit eius dominus esse: sed tantisper neque
vindicare earn potest neque ad exhibendum de ea re agere
propter legem duodecim tabularum, qua cavetur, ne quis
tignum alienum aedibus suis iniunctum eximere cogatur, sed
duplum pro eo praestet per actionem quae vocatur de tigno
iuncto (appellatione autem tigni omnis materia significatur, ex
qua aedificia fiunt) : quod ideo provisum est, ne aedificia re-
scindi necesse sit. sed si aliqua ex causa dirutum sit aedifi-
cium, poterit materiae dominus, si non fuerit duplum iam

30 persecutus, tunc eam vindicare et ad exhibendum agere. Ex
diverso si quis in alieno solo sua materia domum aedificaverit,

§ 29. It would seem that the materials were in this case subject to a
double ownership : the person to whom they belonged before being used
for building ' non desinit dominus eius esse,' and yet the builder *• dominus
intelligitur aedificii, quia onme quod inaedificatur solo cedit' The solu-
tion of the difficulty lies perhaps in the notion of dominium dormiens or
dormant rights, of which there is an illustration in Gains iv. 'j^ or in
^ the analogy of postliminium; cf. Dig. 6. i. 59 'simul atque . . . dempta
essent, continuo in pristinam causam reverti.' The actio de tigno in-
\ iuncto lay only where the materials of which the house was built had
■ been stolen : ' sed in hoc solum ag^ potest, ut sola vindicatio soluta re
competat mulieri, non in duplum ex lege duodecim tabularum : neque
enim furtivum est, quod sciente domino inclusum est* Dig. 24. I. 63. If
the materials had l)een stolen the action lay against a bona fide pos-
sessor of the house no less than against the thief in possession himself :
but, as is stated in the text, the former was not, like the latter, liable
also to the actio ad exhibendum (for which see on Bk. iv. 6. 31 inf.)
which entailed separation, and vindicatio. If they were not stolen, the
only remedy available before separation was an actio in factum Dig. 6.

I. 23- 5-
§ 80. The principles laid down in this section cannot be applied

Tit. I.] DE RERUM DIVISIONE. 207

illius fit domus, cuius et solum est. sed hoc casu materiae
dominus proprietatem eius amittit, quia voluntate eius alienata
intellegitur, utique si non ignorabat in alieno solose aedificare:
et ideo, licet diruta sit domus, vindicare materiam non possit.
certe illud constat, si in possessione constituto aedificatore
soli dominus petat domum suam esse nee solvat pretium ma-
teriae et mercedes fabrorum, posse eum per exceptionem doli
mali repelli, utique si bonae fidei possessor fuit qui aedi-
ficasset: nam scienti alienum esse solum potest culpa obici,
quod temere aedificaverit in eo solo, quod intell^eret alienum
esse. Si Titius alienam plantam in suo solo posuerit, ipsius 31
erit : et ex diverso si Titius suam plantam in Maevii solo
posuerit, Maevii planta erit. si modo utroque casu radices
egerit antequam autem radices egerit, eius permanet, cuius

between landlord and tenant, dominus and usufructuary, etc., in whose
cases this matter of fixtures was regulated by rules specially governing
such relations. The true position of a mala fide possessor of solum
alienum who builds upon it with his own materials is somewhat con-
tradictorily stated in the Corpus iuris, but the two following conclusions ^
appear to be warranted: (i) provided he does not injure the soil he may
raze the building and remove his materials, though he cannot claim
compensation for his outlay (even by advancing the exceptio doli, Dig.
6. I. 37), Cod. 8. 10. 5 ; 3. 33. 5 ; the passage of Paulus in which the
latter right is affirmed (Dig. 5. 3. 38) relates to an exceptional case, and
under ordinary circumstances would be overridden by the latter part of
this section, as well as by Dig. 6. i. 37, Cod. 3. 32. 5 ; ib. 16. (2) If the
domus is diruta, he can bring vindicatio to recover the materials, unless it
was animo donandi that he erected the building : ' sed et id quod in solo
tuo aedificatum est, quoad in eadem causa manet, iure ad te pertinet : si
vero fuerit dissolutum, materia eius ad pristinum dominium redit, sive
bona sive mala fide aedificium exstructum sit, si non donandi animo
aedificia alieno solo imposita sint' Cod. 3. 32. 2. It is true that this
passage seems directly to contradict the text before us and Dig. 41. 1.7.
12, but in both of these statements of the law the animus donandi must
be taken to be implied. The general rule applicable in this and the four
following sections as to improvements made by the possessor of a res
aliena may be briefly stated thus : (i) every possessor (except the fur,
Cod. 8. 52. i) can demand compensation for impensae necessariae. Dig.
25. I. I ; ib. 3 ; ib. 2 and 4; ib. 14. pr.; (2) for impensae utiles only the
bona fide possessor is entitled to compensation, Dig. 41. i. 7. 12; ib. 9.
pr. and i, though the value of fruits which he retains may be set off; (3)
mala fide no less than bona fide possessors may, where possible, remove
the results of their outlay ; see the passages cited above.
§ dL Plants, cereals, etc. raised from seed belonged even after separa-

ao8 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

et fuerat. adeo autem ex eo, ex quo radices agit planta, pro*
prietas eiiis commutatur, ut, si vicini arborem ita terra Titii
presserit, ut in eius fundum radices ageret, Titii effici arborem
dicimus : rationem etenim non permittere, ut alterius arbor
esse intellegatur, quam cuius in fundum radices egisset. et
ideo prope confinium arbor posita si etiam in vicini fundum

32 radices ^erit, communis fit. Qua ratione autem plantae,
quae terrae coalescunt, solo cedunt, eadem ratione frumenta
quoque, quae sata sunt, solo cedere intell^untur. ceterum
sicut is qui in alieno solo aedificaverit, si ab eo dominus petat
aedificium, defendi potest per exceptionem doli mali secundum
ea quae diximus : ita eiusdem exceptionis auxilio tutus esse
potest is qui alienum fundum sua impensa bona fide consevit.

33 Litterae quoque, licet aureae sint» perinde chartis membranis-
que cedunt, acsi solo cedere solent ea quae inaedificantur aut
inseruntur: ideoque si in chartis membranisve tuis carmen
vel historiam vel orationem Titius scripserit, huius corporis
non Titius, sed tu dominus esse iudiceris. sed si a Titio petas
tuos libros tuasve membranas esse nee impensam scripturae
solvere paratus sis, potent se Titius defendere per exceptionem
doli mali, utique si bona fide earum chartarum membrana-

34rumve possessionem nanctus est. Si quis in aliena tabula
pinxerit, quidam putant tabulam picturae cedere : aliis vide-
tur picturam, qualiscumque sit, tabulae cedere. sed nobis
videtur melius esse tabulam picturae cedere: ridiculum est .
enim picturam Apellis vel Parrhasii in accessionem vilissimae *
tabulae cedere. unde si a domino tabulae imaginem possi-
dente is qui pinxit eam petat nee solvat pretium tabulae,
poterit per exceptionem 'doli mali summoveri : at si is qui
pinxit possideat, consequens est, ut utilis actio domino tabulae
adversus eum detur, quo casu, si non solvat impensam pic-
turae, poterit per exceptionem doli mali repelli, utique si bona
fide possessor fuerit ille qui picturam imposuit. illud enim

tion from the soil to the latter's owner, the reason why they were thus
treated differently from materials used for building being that they were
no longer what they had been : ' nam credibile est alio terrae alimento
aliam factam ' Dig. 41. i. 26. i.

§ 34. Gaius (ii. 78) remarks on the unreasonableness of treating paint-
ings differently from writings, and in Dig. 6. i. 23. 3 exactly the opposite

Tit. I.] DE RERUM DIVISIONE. 209

palam est, quod, sive is qui pinxit subripuit tabulas sive alius,
competit domino tabularum furti actio.

Si quis a non domino, quern dominum esse crederet, bona 35
fide fundum emerit vel ex donatione aliave qua iusta causa
aeque bona fide acceperit: natural! ratione placuit fructus
quos percepit eius esse pro cultura et cura. et ideo si postea
dominus supervenerit et fundum vindicet,de fructibus ab eo con-
sumptis agere non potest, ei vero, qui sciens alienum fundum
possederit, non idem concessum est. itaque cum fundo etiam

rule is stated by Paulus, 'sed necesse est ei rei (sc. tabulae) cedi, quod
sine ilia esse non potest ; ' but there is no doubt that the anomaly was
supported by great weight of legal opinion. If the painter had posses-
sion of the tabula, the latter*s former owner could bring only a utilis
rei vindicatio, because in point of fact he was its owner no longer : and
even then, if the painter's possession was bona fide, the latter could
meet him with -the exceptio doli or plea of fraud, if he refused to pay the
value of the 'painting, and could even exclude the action altogether by
himself offering to pay the value of ^he board. The actio furti lay only
against the thief.

§ 86. A fourth natural mode of acquisition is fructuum perceptlo, as
exemplified in those persons who derive their right to take fruits from
the consent of the owner, especially the usufructuary and lessee (colonus,
§ 35 inf.). The rights of other persons to fruits were based on other
tides. The dominus of a fruit-bearing object (e.g. land) is entitled to
the fruits, while still unseparated, as part of the land itself : after separa-
tion, as a consequence of his property in the soil. The tide, or rather the
quality of the right, is not the same before and after separation : for the
fructus separati of an estate which a man has only in bonis belong to him
ex iure Quiritium. The title of the emphyteuta (Excursus II at the end
of this Book) was separation : ' sicut eius qui vectigalem fundum habet
fructus fiunt simul atque solo separati sunt ' Dig. 22. i. 25. i : the reason
of his being differently treated from the lessee being the larger nature of
bis interest, evidenced also by his having a vindicatio utilis. The precise
rights of the bona fide possessor (i. e. one who has obtained a res aliena
by a iustus titulus, usually from another whom he believed to have the
right of alienation) are much disputed : but the better opinion seems to
be that he became complete owner of all fruits whatsoever (though not of
accessions) by the mere fact of separation : ' lulianus ait, fructuarii fructus
tunc fieri, cum eos perceperit : bonae fidei possessoris mox cum a solo
separati sunt* Dig. 7. 4. 13 ; cf. Dig. 22. i. 25. i ; 41. i. 48. pr. If this
be correct, the words quos percepit in this section must be read as if they
were 'qui separati sunt.' If, however, the dominus was successful in
a vindicatio against the bona fide possessor, the latter had to restore
fructus extantes (i.e. separati but not consumpti, Bk. iv. 17. 2 inf.), but for
fructus consumpti, as is observed in the text, he was not answerable ;

P

2IO INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

36 fructus, licet consumpti sint, cogitur restituere. Is, ad quern
usus fructus fundi pertinet, non aliter fructuum dominus effici-
tur, quam si eos ipse perceperit. et ideo licet maturis fruc-
tibus, nondum tamen perceptis decesserit, ad heredem eius
non pertinent, sed domino proprietatis adquiruntur. eadem

37 fere et de colono dicuntur. In pecudum fructu etiam fetus
est, sicuti lac et pilus et lana : itaque agni et haedi et vituli
et equuli statim naturali iure dominii sunt fructuarii. partus
vero ancillae in fructu non est itaque ad dominum proprietatis
pertinet: absurdum enim videbatur hominem in fructu esse,
cum omnes fructus rerum natura hominum gratia comparavit.

38 Sed si gregis usum fructum quis habeat, in locum demortuo-

under consumptio being included specification and alienation. Of acces-
sions, as of the main object, he was bona fide possessor only : hence as
the partus ancillae is not fructus (§ 37 inf.) it became the property of the
ancilla's bona fide possessor only by usucapio. The mala fide possessor
acquired no right to fruits in any way whatsoever, so that if the dominus
established his title against him, he could be compelled to restore fructus
extantes by vindicatio, and the value of fructus consumpti (from the very
commencement of his possession) could be recovered from him by con-
dictio, Dig. 13. 7. 22. 2, Cod. 4- 9- 3 ; 9- 32. 4-

§ 36. By perceptio, as indicating the moment of acquisition, is meant
the actual taking of possession ; ^ percipere est in potestatem suam redi-
gere,' or (as Paulus says in Dig. 6. I. 78) 'coUigere : fructum percipi . . .
foeno caeso . . . uva adempta . . . quamvis nondum vindemia coacta sit '
Dig. 7. 4. 13, *non si perfecti collecti, sed etiam coepti ita percipi, ut
terra continere se fructus desierint' Dig. 6. I. 7Z, Colonus here denotes
the lessee of land, that of a house being called inquilinus : for another
sense of the word see on ^k. i. 3. 5 supr. The difference between the
colonus and the usufructuary marked by the word * fere ' seems to be that
the right of the former devolved on his heirs.

§ 87. The first lines of this section are taken substantially from Dig.
22. I. 28. pr. (' itaque agni et haedi et vituli statim pleno iure sunt bonae
fidei possessoris et fructuarii *), and might, if the * statim ' were pressed,
seem to contradict the rule that fruits become the property of the fructuary
only by perceptio, at any rate as regards such fruits as the young of
animals. The statim may be reconciled with that rule by taking it to
mean either merely that usucapio is not necessary to perfect the fruc-
tuary's title, or that the requirements of perceptio are satisfied if the
mother, at the time of the birth, is under his care and charge. Nor can
pleno iure be pressed in relation to the bona fide possessor, owing to his
obligation to restore fructus extantes.

For the question whether partus ancillae can be regarded as fructus cf.
Cicero, de fin. i. 4. 2, Dig. 7. i. 68. pr., and i.

Fructus naturales are distinguished from the so-called fructus civiles,

Tit. I.] DE RERUM DIVISIONE. ail

rum capitum ex fetu fructuarius summittere debet, ut et
luliano visum est, et in vinearum demortuarum vel arborum
locum alias debet substituere. recte enim colere debet et quasi
bonus pater familias uti debet.

Thesauros, quos quis in suo loco invenerit, divus Hadrianus 39
naturalem aequitatem secutus ei concessit qui invenerit. idem-
que statuit, si quis in sacro aut in religioso loco fortuito casu
invenerit. at si quis in alieno loco non data ad hoc opera, sed
fortuitu invenerit, dimidium domino soli concessit, et conve-
nienter, si quis in Caesaris loco invenerit, dimidium inventoris,
dimidium Caesaris esse statuit. cui conveniens est, ut, si quis
in publico loco vel fiscali invenerit, dimidium ipsius esse,
dimidium fisci vel civitatis.

Per traditionem quoque iure naturali res nobis adquiruntur : 40
nihil enim tam conveniens est naturali aequitati, quam volun-
tatem domini, volentis rem suam in ah'um transferre, ratam
haberi. et ideo cuiuscumque generis sit corporalis res, tradi
potest et a domino tradita alienatur. itaque stipendiaria quoque

by which is meant the return made for the use of a res aliena : ' prae-
diorum urbanorum pensiones pro fructibus accipiuntur' Dig. 22. i. 36,
' mercedes plane a colonis acceptae loco sunt fructuum : operae quoque
servorum in eadem erunt causa, qua sunt pensiones ; item vectura navium
et iumentorum* Dig. 5. 3. 29, 'usurae vicem fructuum obtinent' Dig.
22. I. 34.

§89. Thesaurus is defined as Wetus quaedam depositio pecuniae,
cuius non extat memoria, ut iam dominum non habeat, sic enim fit eius
qui invenerit, qnod non alterius sit: alioquin si quis aliquid vel lucri
causa, vel metus, vel custodiae condiderit sub terra, non est thesaurus,
cuius etiam furtum est' Dig. 41. I. 31. i : but valuables other than money
were included in the notion : ' thesaurum ... id est condita ab ignotis
dominis tempore vetustiore mobilia' Cod. 10. 15. i. i. If A found a
treasure on B's land otherwise than by accident it belonged altogether
to B. It would seem that the English rule, which vests treasure-trove ^
in the Crown (3 Inst. 132), was established also at Rome at some time
after the legislation of Hadrian referred to in the text (for which cf.
Spartianus, Hadr. 18) ;' thus it is mentioned as a special act of grace on
the part of the Emperor Alexander that he permitted thesaurus to be
kept by the finder. Possibly it M'as the concealment of such discoveries
which must have resulted from this privilege of the fiscus that led to
Constantine's general enactment (Cod. Theod. 10. 18. i) rewarding the
finder with a half. Hadrian's rule was re-established by Leo, whose
constitution passed into the legislation of Justinian, Cod. 10. 15.

§ 40. A fifth natural mode of acquisition is traditio, bare delivery

P %

ai2 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

et tributaria praedia eodem modo alienantur. vocantur autem

stipendiaria et tributaria praedia, quae in provinciis sunt, inter

quae nee non Italica praedia ex nostra constitutione nulla

41 differentia est. Sed si quidem ex causa donationis aut dotis

without any prescribed form, which after Justiniatn's abolition of the dis<
tinction between Quiritarian and bonitarian ownership remained the
universal mode of conveying property in res corporales. No mere mental
act was sufficient for this purpose : there must be corporeal delivery :
' traditionibus et usucapionibus dominia rerum, non nudis pactis trans-
feruntur' Cod. 2. 3. 20, The only exception to this rule in Roman law
is societas omnium bonorum (for which see on Bk. iii. 25. pr. inf.), though
iura in re aliena could be created by bare agreement, as in hypotheca,
and perhaps in servitudes generaUy, see on Tit. 3. 4 inf. Traditio, how-
ever, by itself transferred only possession ; the dominium of an object
passed only if the transferor was owner (for which see inf.), and the
delivery was accompanied by a iusta causa tradition is, i.e. the intention

^ on the one hand to give, on the other to receive ownership : * nunquam
nuda traditio transfert dominium, sed ita, si venditio vel aliqua iusta
causa praecesserit, propter quam traditio sequeretur* Dig. 41. i. 31. pr.
Among such causae, besides venditio, dos, and donatio, which are men-
" tioned in the text, may be enumerated solutio (payment), mutuum (loan),
and permutatio (exchange). Though the causa usually existed con-
temporaneously with the delivery, it might arise subsequently, as in the
cases mentioned in § 44 inf., in which the result of the traditio by itself
was either mere detention (as in deposit), or civil possession (as in
pignus and precarium) ; the causa superveniens converted this into
dominium. Provided there was a sufficient causa, a mistake of the
parties as to the real nature of the transaction did not prevent the
property from passing : thus if A thinks he is paying B a debt, while
the latter thinks he is making him a present, the property passes to B,
and he becomes owner of the res tradita, for this was intended by both,
though the transaction is neither gift nor payment, Dig. 41. i. 36.

According to the general rule that no one can give a better title than
he has himself, the owner alone could usually transfer dominium : ^ tra-
ditio nihil ampHus transferre debet, vel potest, ad eum qui accepit, quam
est apud eum qui tradit: si igitur quis dominium in fundo habuit, id
tradendo transfert, si non habuit, ad eum^ quraccipit, nihil transfert '
Dig. 41. I. 20. pr. Some apparent exceptions to this are explained by

"* the transferor's being actually (§ 42 inf.) or constructively the owner's
agent (e.g. his tutor, curator, or pledgee) ; a real exception is found in
the sale of res alienae by the fiscus (Tit. 6. 14 inf.). In some cases even
the owner could not convey, either because he was incapable of perform*
ing legal acts (Handlungsunfahigkeit), or because he was by law prohibited
from the management of his own property (e.g. prodigi), or because his
alienation was nullified by positive enactment, Tit. 8 inf.

* Stipendiaria (praedia) sunt ea, quae in provinciis sunt quae propriae
populi Romani esse intelleguntur ; tributaria sunt ea quae propriae

Tit. I.] DE RERUM DIVISIONE. 213

aut qualibet alia ex causa tradantiir, sine dubio transferuntur :
venditae vero et traditae non aliter emptori adquiruntur, quaiti
si is venditorl pretium solvent vel alio modo ei satisfecerit,
veluti expromissore aut pignore dato. quod cavetur quidem
etiam lege duodecim tabularum : tamen recte dicitur et iure
gentium, id est iure naturali, id effici. sed si is qui vendidit
fidem emptoris secutus fuerit, dicendum est statim rem emp-
tons fieri. Nihil autem interest, utrum ipse dominus tradat 42
alicui rem, an voluntate eius alius. Qua ratione, si cui libera 43
negotiorum administratio a domino permissa fuerit isque ex
his negotiis rem vendiderit et tradiderit, facit eam acci-
^^ientis. Interdum etiam sine traditione nuda voluntas sufficit 44
domini ad rem transferendam, veluti si rem, quam tibi aliquis
commodavit aut locavit aut apud te deposuit, vendiderit tibi

Caesaris esse creduntur' Gaius ii. 21. Italian soil was a res mancipi,
and therefore property in it could not be conveyed by traditio. The
distinction of tributary and stipendiary provinces was merely nominal
in Gaius' time, and ceased entirely about the end of the second century ;
see Mr. Poste's note on the passage of Gaius just cited.

§ 41. The word ^ traditae ' in this passage seems to be what is called a
* Tribonianism.' There is no support to be found for it in any earlier
writer, and taken literally it of course implies that traditio was a recognised
mode of transferring property in res nee mancipi at the date of the Twelve
Tables, but for this there is no authority. Voigt (xii Tafeln. p. 709)
supposes that the rule of the Twelve Tables ran ' venditae et mancipatae
res non aliter emptori adquiruntur quam si is venditori pretium solvent
aut iustum vadem dederit : ' cf. his Jus Naturale, Beilage, xxi. § 18. For
the general statement in the text, cf. Varro, de re rust 2. 2. 26. Quintil.
decl. 336. Dig. 18. I. 19. Some commentators account for the rule by
considerations of the incompleteness of the old Roman law of contract :
some suppose it to have been derived from Greece ; others find in it a
rule of construction only, the intention to transfer ownership being pre-
sumed to be absent unless one of the three specified conditions is satis-
fied. The last .two lines of the section must not be taken to mean that
if the vendor gives credit the property immediately passes to the vendee
without traditio : from the expression ' venditae res et traditae * supr.
it is clear that vendidit here means vendidit et tradidit. For the
expromissor (surety) see Bk. iii. 20. inf. ; for pignus, Excursus II, at the
end of this Book.

$ 43. From a comparison of Dig. 3. 3. 58 with ib. 63 it would seem
that an agent entrusted with a libera administratio had wider powers
than one whose authority was undefined.

§ 44. Cf. Dig. 41. I. 9. 5 ; ib. 21. i ; 41. 2. 3. 3. *Solo animo non
posse nos adquirere possessionem, si non antecedat naturalis possession

ai4 INSTJTUTIONUM LIBRI QUATTUOR. [Lib. II.

aut donaverit. quamvis enim ex ea causa tibi earn non tradi-
derit, eo tamen ipso, quod patitur tuam esse, statim adqui-
ritur tibi proprietas perinde ac si eo nomine tradita fuisset.

45 Item si quis merces in horreo depositas vendiderit, simul
atque claves horrei tradiderit emptori, transfert proprietatem

46 mercium ad emptorem. Hoc amplius interdum et in incertam
personam collocata voluntas domini transfert rei proprie-
tatem : ut ecce praetores vel consules, qui missilia iactant in
vulgus, ignorant, quid eorum quisque excepturus sit, et tamen,
quia volunt quod quisque exceperit eius ess statim eum

47 dominum efficiunt. Qua ratione verius esse videtur et, si
rem pro derelicto a domino habitam occupaverit quis, statim
eum dominum eflici. pro derelicto autem habetur, quod do-
minus ea mente abiecerit, ut id rerum suarum tsis^ noUet,

48 ideoque statim dominus esse desinit. Alia causa est earum
rerum, quae in tempestate maris levandae navis causa eici-
untur. hae enim dominorum permanent, quia palam est eas

§ 45. The keys must be delivered apud horrea. Dig. i8. i. 74 : in prae-
sentia, Dig. 41. 2. i. 21. Many commentators regarded traditio of the
keys as a symboiical traditio of the contents of the building, in the same
way as the handing over the keys of a town to a king on his entry sym-
bolised the surrender of the town itself. But Savigny has shown (Pos-
session § 14) that what is essential is not so much the transfer of the
thing itself as the enabling of the transferee to exercise exclusive control
over it ; cf. Cic Philipp. 2. 28.

§ 46. The case put in the text is a genuine traditio : for the transferee
is intended, though indefinitely: the transferor contemplates somebody
or other in the crowd before him as the receiver. But in the next para-
graph the circumstances are different; the person who may take pos-
session of the res derelicta is absolutely uncertain, and does not conceive
the abandonment as made in his favour at alL

§ 47. For dereliction see on § 12 supr. The opinion that the prior
ownership ceased immediately with the abandonment, confirmed here by
Justinian, had been that of the Sabinians ; the Proculian school con-
strued the act of abandonment as one which made acquisition of owner-
ship by occupatio possible, but divested the owner of his property only
when the occupatio had supervened. Dig. 41. 7. 2. i. Observe that to
get rid of one's dominium an overt act (abiecerit) is requisite besides
intention (nollet) ; to lose possession it was different : ' dominium nihilo-
minus eius manet, qui dominus esse non vult : possessio autem recedit *
Dig. 41. 2. 17. I. The mere finding of property gave no title, Dig. 6. i.
' 67, and appropriation of it was theft. Dig. 47. 2. 43. 4.

§ 48. Cf. Aristode, Ethics iii. i. The lex Rhodia de iactu provided

Tit. a.] DE REBUS INCORPORALIBUS. 215

non eo animo eici, quo quis eas habere non vult, sed quo
magis cum ipsa nave periculum maris efTugiat : qua de causa
si quis eas fluctibus expulsas vel etiam in ipso mari nactus
lucrandi animo abstulerit, furtum committit. nee longe disce-
dere videntur ab his, quae de rheda currente non intellegen-
tibus dominis cadunt.

II.
DE REBUS INCORPORALIBUS.
Quaedam praeterea res corporales sunt, quaedam incor-
porates. Corporales eae sunt, quae sui natura tangi possunt : 1
veluti fundus homo vestis aurum argentum et denique aliae
res innumerabiles. Incorporates autem sunt, quae tangi non 2
possunt. quah'a sunt ea, quae in iure consistunt : sicut here-
ditas^ usus fructus, obligationes quoquo modo contractae. nee
ad rem pertinet, quod in hereditate res corporales continentur :

that when property was thrown overboard to lighten and thereby save a
ship, a proportionate share of the loss should be borne by the owners of
the ship and cargo saved ; Dig. 14. a. i, Paul. sent. rec. 2. 7.

Tit. 2. The division of res into corporeal and incorporeal was in
origin a philosophical one derived from the Stoics (Diog. Laert. 7. 140,
141) : ^rerum definitionum autem duo sunt genera : unum earum rerum,
quae sunt, alterum earum rerum, quae intelleguntur. Esse ea dico, quae
cemi tangive possunt : non esse rursus ea dico, quae tangi demonstra-
tive non possunt, cemi tamen animo atque intellegi possunt ' Cic. Top. 5.
If this distinction is to be used in law, it must be remembered that a
res which is, philosophically, corporalis or incorporalis need not be either
legally ; it becomes so only if the law takes notice of it Thus the sea is
a res corporalis in Cicero's sense, but not in that of the Roman lawyer ;
it cannot be the object of rights. Similarly many objects of the intelli-
gence have no legal existence whatever.

By res corporalis (sensu legali) is to be understood any limited portion
of external nature which is not a person, or any tangible object over
which ownership can be asserted in a real action : by res incorporalis is
to be understood any legal right except the right of ownership itself.
When Gains (from whom, ii. 12-14, Justinian literally transcribes the
whole of this Title) describes obligatio and hereditas as res incorporales,
he explains that he means the right of the creditor in the former case,
and in the latter the right of the person to whom the hereditas is delata
to become heres actually by acceptance. Why Gains excludes the right
of dominiimi alone from the category of res incorporales is explained by
Mr. Poste (Gains p. 160) by reference to the Roman system of pleading,
under which, in an action asserting ownership over an object, the object
itself was brought into the foreground of the formula, whereas, in the for-

2l6 INSTITUTIONUM LIBRI QUATTUOR. [Lib. Ii;

nam et fructus, qui ex fundo percipiuntur, corporales sunt et
id, quod ex aliqua obligatione nobis debetur, plerumque cor-
porale est, veluti fundus homo pecunia : nam ipsum ius here-
ditatis et ipsum ius utendi fruendi et ipsum ius obligationis

mulae of all other actions, whether real (asserting a ius in re aliena) or
personal, the stress was laid, explicitly or implicitly, on the existence of
the plaintifTs right. But perhaps the true explanation of the seeming
anomaly is that given by Mr. Hunter (Roman Law p. 142), who points
out that the most striking difference between the right of dominium, and
all other rights, was that the former could be transferred only by actual
delivery of the object, which for the conveyance of the latter was un-
necessary and often impossible.

§ 3. A right over a definite tangible object is called a ius in re, or real
right : if the object be our own, it is ius in re propria : if some one's
else, ius in re aliena. The rights comprised in the complex notion of
dominium are so indefinite that no satisfactory enumeration of them
seems possible (see Holland's Jurisprudence p. 133) ; conceivably, any
one or more of these might be separated from the rest, and vested in some
other person than the dominus, so as to become a ius in re aliena : but
practically no system of law recognises by specific names and rules more
than a limited number of such rights. Those known to Roman law are
divided into (i) those which were recognised by the old civil law, and
which are called generically servitudes, and (2) those which were not so
recognised, and are denoted by specific names.

Servitudes are either praedial (divided into rustic and urban) or per-
sonal, the latter comprising usus, ususfructus, habitatio, and operae ser-
vorum or animalium ; the second class of iura in re aliena consists of
three distinct rights, emphyteusis, superficies, and pignus.

Properly speaking, the term servitus denotes the quasi-nonfree con-
dition of an object over which rights are enjoyed by a person other
than its owner (' posteaquam ius suum deminuit, alterius auxit, hoc est,
posteaquam servitutem aedibus suis imposuit' Dig. 39. i. 5. 9); but
more commonly it is used to express the deducted right itself. So
understood, it may be defined as a real right, vested in or annexed to a
definite person or piece of land, over some object belonging to another,
and limiting the enjoyment of that object by that other in a definite
manner. The following general points deserve notice : —

(i) Servitudes may be either positive or negative, the former being
said to consist in patiendo (i.e. the dominus has to allow the other party
to do something which otherwise he could legally hinder him from, such
as walking across his field), the latter in non faciendo (the dominus
being obliged to refrain from doing some act which otherwise he would
be at perfect liberty to do, e. g. servitus altius non toUendi, inf.). But no
servitude can consist in faciendo ; in other words, the obligation of the
dominus cannot be to perform some positive duty, for this would give
rise to a right in personam only, whereas a servitude is a right in rem.

Tit. J.] DE REBUS INCORPORALIBUS. 23 7

incorporale est. Eodem numero sunt iura praediorum ur- 3
banorum et rusticorum, quae etiam servitutes vocantur.

Dig. 8. I. 15. I. (2) The right of servitude is extinguished so soon as
the person in whom it is vested becomes dominus of the res serviens,
or vice versa: *nulli res sua servit* Dig. 8. 2. 26. (3) One servitude
cannot be the object of another: 'servitus servitutis esse non potest*
Dig. 33. 2. I. (4) A servitude must not merely limit the rights of the
dominus, but it must confer a positive advantage on the other party,
Dig. 8. I. 15. pr. (5) Servitudes being created solely for the advantage
of a definite subject, they are in transferable, or inseparable from the
subject itself. Dig. 10. 2. 15 ; 8. 4. 12.

The meaning of the distinction between praedial (or real) and personal /
servitudes is explained in § 3 of the next Title, (i) A praedial servitude
can belong to a man only as being owner of a parcel of land or a house
(praedium) ; he can have a personal servitude without any such limita-
tion. The latter can be enjoyed over any object of property ; the former
only over another praedium, near to (vicinum) but not necessarily adjoin-
ing that in whose ^vour it exists, and to which it is appurtenant : Dig.
8. 3. 5. 1 : 8. 5. 2. I : ib. 3. Thus there cannot be a praedial servitude
without two praedia, called the praedium dominans and the praedium
serviens. (2) The right must be of such a nature that by it the use and
enjoyment of the praedium dominans is increased, or rendered more
complete and effectual. It is consequently inseparable from the latter,
passing with it when conveyed, and its maximum extent or orbit is
determined only by the requirements of the praedium to which it is
attached, Dig. 8. 3. 5. i. (3) But the owner of the praedium dominans
must exercise his right with jMroper regard for the other party, civiliter
modo, Dig. 8. i. 9, while the latter is bound to permit him to do all acts
necessary for its due enjoyment, such as repairs, ib. 10. (4) The nature
of a praedial servitude is further illustrated by the rule ' omnes servitutes
praediorum perpetuas causas habere debent ' Dig. 8. 2. 28. ; i. e. no right
can be a praedial servitude whose enjoyment necessitates constant action
on the part of the owner of the praedium serviens, or which can in the
nature of things be enjoyed only for a limited time, * ideo neque ex lacu
neque ex stagno concedi aquae ductus potest' Dig. loc. cit (5) 'Ser-
vitutes (praediorum) ipso quidem iure neque ex tempore, neque ad tem-
pus, neque sub condidone, neque ad certam condicionem constitui
possunt' Dig. 8. i. 4. pr.

Different views are held as to the rationale of the division of praedial
servitudes into rustic and urban. According to some, it turns upon the
nature of the praedium dominans, the question being whether this is a
building merely, or a piece of land comparatively free from buildings,
such as a farm or a country estate : others regard only the nature of the
praedium serviens; while a third school determines the species of ser-
vitude purely by reference to its content, holding that where the right
consists in faciendo, it is rustic, where in habendo or prohibendo, urban.
The following Titles will make the distinction clear.

ai8 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

III.

DE SERVITUTIBUS.

Rusticorum praediorum iura sunt haec : iter actus via aquae
ductus, iter est ius eundl ambulandi homini, non etiam
iumentum agendi vel vehiculum: actus est ius agendi vel
iumentum vel vehiculum. itaque qui iter habet, actum
non habet. qui actum habet, et iter habet eoque uti potest
etiam sine iumento. via est ius eundi et agendi et am-
bulandi: nam et iter et actum in se via continet aquae
1 ductus est ius aquae ducendae per fundum alienum. Prae-
diorum urbanorum sunt servitutes, quae aedificiis inhaerent,
ideo urbanorum praediorum dictae, quoniam aedificia omnia
urbana praedia appellantur, etsi in villa aedificata sunt,
item praediorum urbanorum servitutes sunt hae : ut vicinus
onera vicini sustineat : ut in parietem eius liceat vicino tig-
nuni immittere: ut stillicidium vel flumen recipiat quis in
aedes suas vel in aream, vel non recipiat: et ne altius

Tit. m. Via differs from iter and actus (i) in implying a regular
roadway, the minimum width of which, in the absence of express agree-
ment, was fixed by law at eight feet where straight, and sixteen where it
curved, Dig. 8. 3. 8 ; (2) in entitling one to the use of the road for heavy
traffic, which is expressly excluded from actus in Dig. ib. 7. pr. Iter, unless
otherwise specified, included the right of riding or being carried in a
litter, ib. 7 and 12; and though actus usually comprehended iter, it
could be excluded by express agreement, Dig. 8. 5. 4. i. In all of these
three rights of way the person entitled might use only the road or path
assigned to him by the owner of the praedium serviens, or that which he
had once selected for himself.

§ 1. In Dig. 8. I. 3 Paulus seems to define urban servitudes as those
quae in superficie, as contrasted with those quae in solo, consistunt.
They are either positive, e.g. tigni immittendi, oneris ferendi, stillicidii
avertendi, proiiciendi (right of building some structure such as a balcony
out over one's neighbour's land) and cloacae — or negative, securing an
advantage to the praedium dominans of which it could be deprived by
some alteration in the praedium serviens, e.g. altius non tollendi, the
right of preventing one's neighbour from raising the height of his house,
and ne luminibus or prospectui officiatur.

In this section, as well as in Gaius ii. 31, iv. 3, and many passages of
the Digest (e. g. 8. 2. i. pr. ; 8. 3. 2. pr. ; 8. 4. 7. 1 ; 44. 2. 26. pr.), an urban
servitude is mentioned which has occasioned considerable difficulty, viz.
the servitudes altius tollendi, officiendi luminibus vicini, and stiUicidii

Tit. 3.] DE SERVITUTIBUS. ' 219

tollat quis aedes suas, ne luminibus vicini ofBciatun In rusti- 2
corum praedionim servitutes quidam computari recte putant
aquae haustum, pecoris ad aquam adpulsum, ius pascendi,
calcis coquendae, harenae fodiendae.

Ideo autem hae servitutes praedionim appellantur, quoniam 3
sine praediis constitui non possunt. nemo enim potest ser-
vitutem adquirere urbani vel rustic! praedii, nisi qui habet
praedium, nee quisquam debere, nisi qui habet praedium. Si 4
quis velit vicino aliquod ius constituere, pactionibus atque

non avertendi, which seem to operate only in the way of freeing a ^
building from some pre-existing obligation. Mr. Poste (Gaius p. 179)
explains this by supposing that an urban servitude can be extinguished
only by the acquisition of a contrary servitude by the praedium serviems.
But perhaps it is better to suppose that these anomalous servitudes
occurred only where the laws limited the rights of owners by forbidding
them to build above a certain height, compelling them to receive their
neighbours' rainwater, etc. A law of Zeno of this nature, enacted origin-
ally for Constantinople only, was extended to all the cities of the empire
by Justinian (Cod. 8. 10. 12 and 13). If this is so, it is difficult to con-
ceive the right in question as a servitude at all.

§ 2. The rights mentioned in this section are treated as rustic ser-
vitudes by Neratius (Dig. 8. 3. a sq.), and by Papinian, Paulus, and
Ulpian. The word * recte' seems to imply that by some they were not
so considered, though there is no trace in the authorities of a difiference
of opinion.

§ 4. The old mode of constituting servitudes between the parties had
been in iure cessio, Gaius ii. 29. 30, rustic servitudes in Italy also ad-
mitting of creation by mancipatio. These processes, however, could be
employed only in respect of objects which could themselves be trans-
ferred in the same manner, so that (Gaius ii. 31) servitudes over praedia
provincialia, which were not ' in patrimonio,' could not thus be created.
In default, the occupiers of land in the provinces resorted to bare agree-
ments (pactio), subsequently expressed in a formal and solemn contract
(stipulatio), by which the owner of the land which was to be subjected
to the servitude bound himself to allow its enjoyment, or in default to
pay a penal sum, e. g. ' per te non fieri neque per heredem tuum, quo-
minus mihi heredique meo ire agere liceat; si adversus ea factum sit,
tantum dari' Dig. 45. i. 2. 5. A right thus created could not in itself
avail in rem, or *run with tlie land;' yet it seems clear from Gaius (ii.
31) that in his time such pactiones and stipulationes were as effectual to
create servitudes over provincial soil as in iure cessio and mancipatio
over praedia Italica. We must consequently suppose that the praetor had
intervened, and by the introduction of an utilis actio (confessoria) for the
protection, of the promis^against all successors of the other in title had
given the right a genuine ^real ' character. In Justinian's time of course

aao INSTJTUTJONUM LIBRI QUATTUOR. [Lib. IL

stipulationibus id efficere debet, potest etiam in testamento

pactio et stipulatio was the sole mode of contractually creating servi-
tudes of every kind.

There is much difference of opinion as to whether, in addition to the .
pactio et stipulatio, a quasi- trad itio of the right was required to endow
it with the full proportions of a servitude. Gains expressly says (ii. 28)
that servitudes, like res incorporales in general, do not admit of traditio ;
but if the latter be conceived as the granting of the physical control over
a res, or as the permitting it to be enjoyed, servitudes will also admit
of this figurative operation, and accordingly many hold that as boni-
tarian ownership at least could always be conveyed by traditio proper,
so pactio et stipulatio required the supplement of this quasi- or figura-
tive traditio to gain full praetorian protection for the right created, as a
' real ' right For instance, it is affirmed that this traditio gave a quasi-
possession, entitling the recipient to use the Pubhcian action, as well as
the actio confessoria, whereby he was exempted from the onus of proving
his transferor's title, and which availed also against non-owners of the
praedium serviens. It is quite certain that in many passages (e. g. Dig.
6. 2. II. I ; 7. I. 25. 7 ; 7. 4. I. pr. ; 7. 6. 3 ; 8. i. 20) traditio is specified
as a mode of creating servitudes ; but obviously it must have been pre-
ceded by agreement, and the question is whether a real right could be
created by the latter unsupplemented by the former. There is no pas-
sage in the authorities which affirms the necessity of traditio, and the
prevailing view now seems to be that it was not essential ; though the
contrary is still maintained by some who argue from the jural impossi-
bility of creating real rights by a contract * in the proper sense of the
term,' and explain the absence of passages affirming the necessity of
traditio by the consideration that in the time of the classical jurists
servitudes were, iure civili, not thus created at all. Cf. Mr. Roby's
edition of Dig. 7. i, pp. 36, 174-175.
The other modes in which servitudes in general could originate are : —
(i) Testamentary disposition or legacy; this was commonest in per-
sonal servitudes, especially usufruct, which could either be bequeatiied
directly (Tit. 4. i in£), or the heir could be directed to create it in favour
of the legatee : ' ususfructus uniuscuiusque rei legari potest, et aut ipso
iure constituetur aut per heredem praestabitur : ex causa damnationis
per heredem praestabitur, ipso iure per vindicationem ' Paul. sent, rec 3.
6. 17. Bequest of praedial servitudes, to be duly constituted by the heir,
is spoken of in this section ; cf. Dig. 8. 4. 16 ; 33. 3.

(2) Deductio ; reservation of the servitude in conveying the dominium
either inter vivos or by will ; Tit. 4. i inf., fragm. Vat. 47. 50. 80 ; Dig. 7.
1.36. i; ib. 54; Gaiusii. 33.

(3) Judicial decision, either (a) by adiudicatio in a indicium divisorium,
Bk. iv. 6. 20; ib. 17. 4 and 5 inf.; (b) declaring a servitude duly consti-
tuted as against a recalcitrant defendant who refuses to create it him-
self; or (c) reviving by *in integrum restitutio' a servitude which has
been lost. Dig. 8. 5. 8. 4.

Tit. 3.] DE' SERVJTUTIBUS. %%l

quis heredem suum damnare, ne altius toUat, ne luminibus

(4) In certain cases usufruct arose ipso iure in virtue of statutory
enactment (lex); e. g. the pater*s usufruct in the peculium adventitium
of his son (note on Tit. 9. pr. inf.) ; Cod. 6, 60, 1 and 3 ; 6. 61. 6. pr. ; 5. 9.
3. pr. ; ib. 6. i.

(5) Actual enjoyment of the right for a prescribed period of time.
Where a praedium was acquired by usucapio (Tit. 6 inf.), the servitudes
appurtenant to it were acquired along with it ; but apart and by them-
selves, such rights could not thus arise, for usucapio presupposes pos-
session of the thing to be acquired, and a bare right cannot be possessed :
'hoc iure utimur, ut servitutes per se nusquam longo tempore capi
possint, cum aedificiis possint' Dig. 41. 3. 10. i.; cf. Dig. 8. i. 14. It
would seem, however, that at one time this principle was not fully
admitted, for a lex Scribonia of uncertain date (Dig. 41. 3. 4. 29) forbade
usucapion of servitudes, except the anomalous class spoken of on § i supr. ;
but it is now very commonly held that though rustic servitudes could
never be acquired by usucapio, urban could, as in them there is a greater
semblance of uninterrupted possession than in the former, and that the
lex Scribonia related to the urban class only.

Servitudes over provincial soil, however, could be acquired by an
analogous institution of praetorian origin, more fully explained in Ex-
cursus III at the end of this Book, viz. longa quasi-possessio, actual
exercise of the right for ten years if the owner of the praedium serviens
lived in the same province, twenty if in another; Dig. 8. 5. 10. pr. ; 39. 3. i.
22. This mode of acquisition came gradually to be recognised in Italy also,
so that in effect the lex Scribonia lost much of its force : under Justinian it
is in full operation for all kinds of servitudes, Cod. 7. 33. 12, its conditions
being {a) uninterrupted enjoyment of the right for the periods specified,
which (b) must not be violent, or without the knowledge of the other
party, or in virtue of express permission from him ; but bona fides does
not seem necessary; Dig. 8. 6. 24; 43. 20. i. 10; cf. Roby, op. cit.
p. 138.
Servitudes generally might be extinguished in the following ways : —
(i) Destruction of the res serviens (Tit. 4. 3 inf.), or its withdrawal
from commercium. Personal servitudes perished also if the res serviens
underwent a complete and essential transformation. Dig. 7. 4. 5. 2 and 3.

(2) Confusio, i. e. the dominium and the servitude becoming vested in
one and the same person by operation of law. This occurred frequently
in succession upon death.

(3) Surrender of the right to the dominus of the res serviens. Tit. 4. 3
inf. The proper form of surrender had originally been in iure cessio and
for rustic servitudes in Italy probably also mancipatio; in Justinian's
time a mere agreement (cessio or concessio) was sufficient without any
formal surrender. So too the person entitled to the servitude might
purchase the dominium. Dig. 7. 4. 17. This in Tit. 4. 3 inf. is called
consolidatio. There is some ground for supposing that abandonment
(derelictio) extinguished usufruct, though not other servitudes; but its

22a INSTITUTIONUM UBRI QUATTUOB. [Lib. 11.

aedium vicini oiHciat : vel ut patiatur eum tignum in parietem

effect seems really to have been to terminate^ not the usufructuary's
rights, but only his liabilities.

(4) Extinction of the subject entitled. In praedial servitudes this is
the praedium dominans : personal servitudes expire with the death of
the person in whom they are vested, unless granted to him and his heirs,
or an earlier time has been fixed for their termination. If a personal
servitude belonged to a juristic person, it could not endure beyond one
hundred years except by express provision, Dig. 7. i. 56.

(5) Non-exercise of the right for a prescribed time. Rustic servitudes
were lost by non-exercise for two years, personal servitudes by non-user
for one year or two according as the res serviens was mobilis or immobilis,
Paul. sent. rec. 3. 6. 30. For the loss of an urban servitude mere non-
user was insufficient ; there was required also some positive act on the
part of the owner of the praedium serviens, e.g. raising of the house,
building up of the hole in which the beam had rested, etc. ; two years
after this had occurred the right was extinguished, this being called
usucapio libertatis : ' haec autem iura [praediorum urbanorum] similiter,
ut rusticorum quoque praediorum, certo tempore non utendo pereunt:
nisi quod haec dissimilitudo est, quod non omnino pereunt non utendo,
sed ita, si vicinus simul libertatem usucapiat ' Dig. 8. 2. 6 ; cf. Roby, op.
cit. p. 139. For servitudes over provincial soil the periods were the
longer ones already mentioned, and these continued to be required
universally under Justinian, no distinction being drawn between move-
ables and immoveables ; Cod. 3. 33. 16. i ; 3. 34. 13; 7. 33. 12. Two
personal servitudes, habitatio and operae, were never liable to destruction
by non-user.

(6) In Tit. 4. 3 inf. Justinian says usufruct was also extinguished 'non
utendo per modum : ' which may be explained (i) as an allusion to Cod.
3. 33. 16. I 'nee usumfructum non utendo cadere, nisi talis exceptio
opponatur quae, etiamsi dominium vindicaret, posset eum excludere ; ' or
(2) as referring to restrictions upon the right, limiting, e. g. the kinds of
fruits which might be taken, cf. Dig. 8. 6. 10. i ; ib. 18. pr.

(7) Lapse of time fixed for the duration of the right, or fulfilment of a
resolutive condition. Praedial servitudes could not in strict law be
qualified in this manner (see (5) on p. 217 supr.) ; but if the grantee
asserted his right against the terms of the limitation, he could be de-
feated by exceptio pacti or doli. Dig. 8. i. 4. pr.

(8) By the old law usns and ususfructus were extinguished by capitis
deminutio of the person entitled, Gaius iii. 83. By an enactment of
Justinian, capitis deminutio minima ceased to have this effect, Tit. 4. 3.
inf. and Bk. iii. 10. i ; cf. Cod. 3. 33. 16. 2.

The remark of Gaius in ii. 30, and of the text in Tit. 4. 3 inf., that a
right of usufruct is inalienable except by way of release to the owner
of the res serviens is true of all servitudes whatever: any attempt
to transfer was altogether inoperative. But a usufructuary, though
he could not divest himself of his right in favour of a third person,

m4.] J^E USU FRt/CTU. 223

immittere vel stiUicidium habere: vel ut patiatur eum per
fundum ire agere aquamve ex eo ducere.

IV.

DE USU FRUCTU.

Usus fructus est lus alienis rebus utendi fruendi salvo rerum
substantia, est enim ius in corpore : quo sublato et ipsum
tolli necesse est. • Usus fructus a proprietate separationem 1
recipit idque plurimis modis accidit. ut ecce si quis alicui
usum fructum legaverit : nam heres nudam habet proprietatem,
legatarius usum fructum : et contra si fundum legaverit de-
ducto USU fructu, legatarius nudam habet proprietatem, heres
vero usum fructum : item alii usum fructum, alii deducto eo
fundum legare potest, sine testamento vero si quis velit alii
usum fructum constituere, pactionibus et stipulationibus id
efficere debet, ne tamen in universum inutiles essent pro-
prietates semper abscedente usu fructu, placuit certis modis

could transfer its exercise or enjoyment to him by sale, gift, etc., Dig.
7. 12. 2; 18. 68. 2; 24. 3. 57. For the actions relating to servitudes see
Bk. iv. 6. 2 and notes inf.

Tit. IV. Usufruct is distinguished from usus by its greater orbit, the
usufructuarius being entitled '£rui' as well as 'uti.' The differentia of
the right thus lies in the word fructus, for which see Tit. i. 37 supr.
Subject to the obligation not to abuse or misuse (* recte enim colere debet,
et quasi bonus paterfamilias ' ib. 38), and in the absence of express pro-
vision to the contrary, the holder of the right may take all fruits of the
object, civil as well as natural ; and where it .is land, he may ordinarily
dig for minerals, Dig. 7. 1. 9. 2 ; ib. 13. 5, but not to such an extent as
to violate the rule * boni viri arbitratu uti frui debet, causam proprietatis
deteriorem facere non debet.' His general obligations in this respect are
contained in the expression 'salva rerum substantia,' for which see UJpian,
reg. 24. 26 ' earum rerum, quarum salva substantia utendi fruendi potest
esse facultas : * he may not use the object over which his right exists for
purposes clearly other than those for which it was designed. Dig. 7. i. 13.
8 ; ib. 15. I, nor may he change its character, and he must restore it in as
good condition as that in which he received it. Where the right was
given testamento, the discharge of these obligations was secured by a
cautio usufructuaria, or personal undertaking guaranteed by sureties :
subsequently the dominus was held entitled to demand it in nearly all
cases : Dig. 7. 9. i. 2 ; ib. 9. i ; 7. i. 13. pr.

§ L For the modes in which usufruct could be created and extinguished
see notes on the preceding Title.

224 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

2 extingui usum fructum et ad proprietatem reverti. Constituitur
autem usus fructus non tantum in fundo et aedibus, verum
etiam in servis et iumentis ceterisque rebus exceptis his quae
ipso usu consumuntur : nam eae neque naturali ratione neque
civili recipiunt usum fructum. quo numero sunt vinum oleum
frumentum vestimenta. quibus proxima est pecunia numerata :
namque in ipso usu adsidua permutatione quodammodo ex-
tinguitur. sed utilitatis causa senatus censuit posse etiam
earum rerum usum fructum constitui, ut tamen eo nomine
heredi utiliter caveatur. itaque si pecuniae usus fructus legatus
sit, ita datur legatario, ut eius fiat, et legatarius satisdat heredi
de tanta pecunia restituenda, si morietur aut capite minuetur.
ceterae quoque res ita traduntur legatario, ut eius fiant : sed
aestimatis his satisdatur, ut, si morietur aut capite minuetur,
tanta pecunia restituatur, quanti eae fuerint aestimatae. ergo
senatus non fecit quidem earum rerum usum fructum (nee
enim poterat), sed per cautionem quasi usum fructum con-

3 stituit. Finitur autem usus fructus morte fructuarii et duabus
capitis deminutionibus, maxima et media, et non utendo per
modum et tempus, quae omnia nostra statuit constitutio. item
finitur usus fructus, si domino proprietatis ab usufructuario
cedatur (nam extraneo cedendo nihil agitur) : vel ex contrario
si fructuarius proprietatem rei adquisierit, quae res consoli-

§ 2. The date of the senatus-consult by which this *' quasi-usufruct ' was
introduced, though not precisely known, is supposed to lie between
Cicero (on account of Top. 3 ' non debet ea mulier, cui vir bonorum
suorum usumfructum legavit, cellis vinariis et oleariis plenis relictis,
putare ad se pertinere, usus enim, non abusus legatus est ') and the
enactment of the lex Papia Poppaea, which often speaks of usufruct of a
part of a whole property. Doubtless the main object of the innovation
was to enable testators to bequeath a general usufruct over all their
property. That the right was not a usufruct proper is clear from the
text (' nee usufructus est ' fragm. Vat. 46, ' non id effectum, ut pecuniae
ususfructus proprie esset' Dig. 7. 5. 2. i). Under the senatus-consult it
could be created only by will ('ut omnium rerum, quas in cuiusque
patrimonio esse constaret, ususfructus legari possit' Dig. 7. 5. i), and
was extinguished only by death and capius deminutio of the person
entitled, Dig. ib. 9 and 10.

§ 3. The jurists seem to have disagreed as to the effect of an attempt
to cede a usufruct to a third person : Gaius (ii. 30) states the law in the
same way as the text, and fragm. Vat. 75, Dig. 10. 2. 15 agree; but in

Tit. sJ DE USU ET HABITATIONE. 225

datio appellatur. eo amplius constat, si aedes incendid con-
sumptae fuerint vel etiam terrae motu aut vitio suo corruerint,
extingui usum fructum et ne areae quidem usum fructum de-
beri. Cum autem finitus fuerit usus fnictus, revertitur scilicet 4
ad proprietatem et ex eo tempore nudae proprietatis dominus
incipit pienam habere in re potestatem.

DE USU ET HABITATIONE.

Isdem istis modis, quibus usus fructus constituitur, etiam
nudus usus constitui solet isdemque iliis modis finitur, qui-
bus et usus fructus desinit Minus autem scilicet iuris in 1
usu est quam in usu fructu. namque is, qui fundi nudum
usum habet, nihil ulterius habere intellegitur, quam ut oleri-
bus pomis floribus feno stramentis lignis ad usum cotti-
dianum utatur: in eoque fundo hactenus ei morari licet,
ut neque domino fundi molestus sit neque his, per quos
opera rustica fiunt^ impedimento sit: nee uUi alii ius quod
habet aut vendere aut locare aut gratis concedere potest,
cum is qui usum fructum habet potest haec omnia facere.

Dig. 23. 3. 66 Pomponius writes 'si extraneo cedatur, nihil ad eum
transire, sed ad dominum proprietatis leversurum usumfructum.' Some
writers attempt to reconcile this with the passages last referred to : see
Roby, op. cit. p. 82. Upon ' et ne areae quidem,' etc, Theophilus says
tntitff fiif ffda^ovf ^ oXX' ohcias avr^ naptx^^riBrj 6 owrov^povicros*

Tit. V. The points wherein usus differed from usufruct are dearly
pointed out in §§ 1-4. The commonest mode in which the right was
created was testament, and upon the principle Mn testamentis plenius
voluntates testantium interpretamur' the powers of the usuary were then
sometimes enlarged beyond their normal compass in order to give effect
to the bequest : e.g. if the usus were bequeathed of a wood, he might
cut and sell it. Dig. 7. 8. 22. pr. On the same principle the legatee
of the usus of a house might let such part of it as he did not require
for himself and his family, Dig. ib. 2. i, but not the whole : though the
general rule was that a usuary could not transfer even the enjoyment of
his right or any part of it, for to let another use a thing is not to use it
oneself, and to do so for a merces is practically fructus.

§ 1. For the transfer by a usufructuary of the actual enjoyment of his
right see the concluding note on Tit 3 supr. : ' alii fruendam concedere,
vel locare, vel vendere potest (usufructuarius) • • . precario concedat vd
donet' Dig. 7. i. 12. 2.

Q

226 INSriTUriONVM UBRI QUATTUOR. [Lib. II-

2 Item is, qui aedium usum habet, hactenus juris habere intel-
legitur, ut ipse tantum habitet, nee hoc ius ad alium transferre
potest : et vix receptum videtur, ut hospitem ei recipere liceat.
et cum uxore sua Uberisque suis, item libertis nee non aliis
liberis personis, quibus non minus quam servis utitur, habi-
tandi ius habeat : et convenienter si ad muiierem usus aedium

3 pertineat, cum marito habitare liceat. Item is, ad quem servi
usus pertinet, ipse tantum operis atque ministerio eius uti
potest : ad alium vero nuUo modo ius suum transferre ei con-

4cessum est. idem scilicet iuris est et in iumento. Sed si
pecoris vel ovium usus legatus fuerit, neque lacte neque agnis
neque lana utetur usuarius, quia ea in fructu sunt, plane ad
stercorandum agrum suum pecoribus uti potest.

5 Sed si cui habitatio l^ata sive aliquo modo constituta sit,
neque usus videtur neque usus fructus, sed quasi proprium
aliquod ius. quam habitationem habentibus propter rerum
utilitatem secundum Marcelli sententiam nostra decisione
promulgata permisimus non solum in ea degere, sed etiam
aliis locare.

6 Haec de servitutibus et usu fructu et usu et habitatione
dixisse sufBciat. de hereditate autem et de obligationibus suis
locis proponamus. exposuimus summatim, quibus modis iure

§ 2. Before Q. Mucius even the husband of a woman to whom the usus
of a house was left might not live in it with her, Dig. 7. 8. 4. i : whether
the usuary's liberti might be housed was a question to the time of Celsus,
Dig. ib. 2. I. With * aliis quibus non minus quam servis utitur* cf. Dig.
7. 8. 4. pr. * quos loco servorum in operis habet, licet liberi sint vel servi
alieni.'

§ 4. The ius stercorandi seems to correspond to the usus cottidianus
of § I supr.

§ 5. It was a question among the jurists whether habitatio and operae
servorum sive animalium were distinct rights from usus and usufruct :
^operis servi legatis usum datum intellegi et ego didici et lulianus existi-
mat ' Clemens in Dig. 7. 7. 5 ; for the different views respecting habitatio
see Ulpian in Dig. 7. 8. 10, and Cod. 33. 3. 13. Finally the distinction
was admitted ; the points of difference between these two rights and usus,
which they most resemble, being that mentioned in the text, and that
they were not extinguished by non-user or capitis deminutio, Dig. 7. 8.
10. pr.

For the three iura in re aliena which were not servitudes see Excursus
II at the end of this Book.

§ 6. Having described the natural modes of acquiring res (corporales)

Tit. 6.] . DE USUCAPIONIBUS, ETC. 0,1J

gentium res adquiruntur : tnodo videamus, quibus modi's legi-
timo et civili iure adquiruntur.

VI.

DE USUCAPIONIBUS ET LONGI TEMPORIS
. POSSESSIONIBUS.

lure civili constitutum fuerat, ut, qui bona fide ab eo, qui
dominus non erat, cum crediderit eum dominum esse, rem

singulae in Tit. i Justinian takes occasion, after drawing the distinction
between things corporeal and incorporeal in Tit. 2, to discuss an im-
portant branch of the latter, viz. servitudes. He now returns to the civil
modes of acquisition, which are two in number, usucapio (Tit. 6), and
donatio (Tit. 7),

It has been already observed that in the Roman system civil are older
than natural titles. Three of the former were obsolete before Justinian's
time, or were abolished by him, viz.

(i) Addictio in the wider sense, the making over of property to indi-
viduals in the name of the people by the decree of a magistrate, especially
in the form of emptio sub corona (GelL 7. 4 ; 13. 24), and sectio bonorum
(Gaius iv. 146). (2) In iure cessio, a voluntary transfer effected under
magisterial authority through the fiction of a suit at law, as in the English
fines and recoveries. It is described by Gaius ii. 24, who tells us (25) that
even in his day it had been abandoned for the conveyance of corporeal
single things, though still used in manumissions (note on Bk. i. 5. i supr.),
emancipations, adoptions (note on Bk. i. 11. 3 supr.), transfer of tutela
legitima over women (Gaius i. 168), creation of servitudes, and conveyance
of the right to accept an inheritance (Gaius ii. 35-37). In Justinian's time
it had altogether disappeared. (3) Mancipatio : res mancipi (viz. land
and rustic servitudes in Italy, slaves, domestic beasts of burden, free
persons in potestas, manus or mancipium, and imder certain circum-
stances a man*s whole property in the aggregate (familia) could be con*
veyed in full ownership only by this or in iure cessio ; it is described by
Gaius i. 11 9- 1 22. Mancipation disappeared from the law of Justinian
owing to his abolition of the distinction between res mancipi and nee
mancipi, Cod. 7. 31.

Two other civil modes of acquisition still operative under Justinian
are not here treated by him, viz.

(4) Lex, which includes legacy (Tit. 20. pr. inf.) and caduca and erep-
toria; Ulpian, reg. 19. 17.

(5) Adiudicatio, the sentence of a judge in a indicium divisorium
whereby property vests in the individual in severalty without the neces^
sity of ordinary conveyance, Bk. iv. 17. 8 inf.

The next Title, on the subject of usucapio, presupposes some know-
ledge of the Roman law of Possession. For this see Excursus III at the
end of this Book.

Tit, "VX * Usucapio est adiectio dominii per continuationem posses-

aaS INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

emerit vel ex donatione aliave qua justa causa acceperit, is
earn rem, si mobilis erat^ anno ubique, si immobilis, biennio
tantum in Italico solo usucapiat, ne rerum dominia in incerto
essent. et cum hoc placitum erat, putantibus antiquioribus
dominis sufficere ad inquirendas res suas praefata tempora,
nobis melior sententia resedit, ne domini maturius suis rebus

sionis temporis lege definiti ' Dig. 41. 3. 3 ; it was as old as the Twelve
Tables, in which it is called simply usus; see Muirhead, Roman Law,
p. 145. For its operation the following conditions were required to be
satisfied : —

(i) Usucapio, being a mode of acquiring dominium ex iure Quiritium,
presupposes (a) that the person acquiring has the commercium : by this
peregrini were excluded: 'adversus hostem aeterna auctoritas* Cic. de
off. i. 12. 37 {b) that the thing, which is to be acquired, is not only capable
of being possessed, but is in commercio. This excludes free men (Gains
ii. 48), res divini iuris (ib.) and res publicae, in particular solum provin-
ciale (ib. 46) ; the last, however, could be possessed (Savigny, Poss. § 9).
In addition to this, certain things were prohibited by positive enactment
from being acquired in this way, especially res furtivae and vi possessae
(§ 2 inf.), res mancipi of women in agnatic guardianship, unless delivered
by the woman herself with the guarQian*s auctoritas (Craius ii. 47) ; res
fiscales (§ 14 inf.) ; property of the emperor (Cod. 7. 38), and of minors
(Cod. 7. 35. 3) ; res dotales under certain circumstances, and immoveable
property of religious and charitable corporations.

(2) The object must be 'possessed,' not merely detained, during the
period required by law, and

(3) The possession must have originated in a iusta causa or a iustus
titulus (' usucapio, non praecedente vero titulo, procedere non potest, nee
prodesse neque tenenti neque heredi cius potest ' Cod. 7. 29. 4 ; cf. the
opening section of this Title), and have been accompanied at its inception
by bona fides (§§ i and 3 inf.) : these requirements having been grafted
on to the law of the Twelve Tables by the later jurisprudence. Both of
these expressions need a little elucidation. By the requirement of iusta
causa is meant that the possessor must have got possession in some way
which would have made him owner, only that in the particular case, owing
to some external defect, acquisition of possession is not equivalent to
acquisition of ownership ; Justinian's language in the first lines of the text
is misleading^ as the chief use of usucapio had before him been in cases
where res mancipi were transferred by mere traditio (Gains ii. 41), p. 199
supr. Such causae of course are numerous, the clue to them in the
authorities being the word *pro* (possidet pro soluto, pro smpto, pro
herede, pro donato, pro derelicto, pro legato, pro dote, etc.). By bona
fides is meant a negative rather than a positive state of mind, i. e. ignor-
ance, occasioned by excusable error, of the circumstances which prevent the
acquisition of ownership (*qui ignorabat. . . alienum . . . bonae fidei possessor*
Dig. 48. 15. 3. pr.) ; the cases in which its presence can be really a ques-

Tit. 6.] DE USUCAPIONIBUS, ETC. 229

defraudentur neque certb loco beneficium hoc concludatur. et
ideo constitutionem super hoc promulgavimus, qua cautum
est, ut res quidem mobiles per triennium usucapiantur, immo-
biles vero per longi temporis possessionem, id est inter prae-
sentes decennio, inter absentes viginti annis usucapiantur et
his modis non solum in Italia, sed in omni terra, quae nostro

tion are cases of materially defective acquisition, where the usucapio has
to prevail against an actual (and not merely Quiritarian) owner, as e.g. if
a non-owner sells and delivers property, the purchaser, besides this causa
(pro empto) must not know that it belongs to some one other than the
vendor, or that the vendor has no authority to sell ; ' bonae fidei emptor
esse videtur, qui ignoravit earn rem alienam esse, aut putavit eum, qui
vendidity ius vendendi habere, puta procuratorem aut tutorem esse' Dig.
50. 16. 109. By Roman law bona fides was required only at the inception
of possession, and in sales also at the time of the contract : under the
canon and modem dvil law it is different.

(4) The possession must continue uninterruptedly during the period
fixed by law ; in case of interruption (usurpatio) the whole time must
commence and run again. The time required by the Twelve Tables was
two years for acquisition of immoveables, one for that of moveables.

The exclusion of provincial soil from the operation of usucapio led
indirectly to very considerable changes in the law. The ground upon
which Justinian tells us usucapio was recognised — ne rerum dominia in
incerto essent — was as real a one in the provinces as in Italy; and in
them its place was taken by an analogous institution, longi temporis
praescriptio or possessio, which owed its efficacy to the edicts of the
provincial governors, and whose operation was extended— probably for
the benefit of percgrini— to moveables by Caracalla, Dig. 44. 3. 9. By
this, if a man possessed land for ten years (or twenty, if the owner lived
out of the province) Dig. 18. i. 76. i, the latter*s action for its recovery
could, after the lapse of that period, be defeated by a plea (called ori-
ginally praescriptio, later exceptio) alleging the length of the defendant's
possession. The rules already stated as to iusta causa and bona fides,
and the positive enactments excluding certain things from this mode of
acquisition (c. g. res furtivae and vi possessae) were applied here as well
as in usucapio. It operated at first, as it were, as a Statute of Limitation
only, but eventually it conferred ownership, the longi temporis possessor '
being allowed by Justinian to bring a real action for the recovery of the
object if deprived of it ; see Cod. 7. 39. 8. pr., where he says hoc enim et
veteres leges, si quis eas recte inspexerit, sanciebant : for this see Dig. 12.
2. 13. I ; Cod. 7. 33. 7.

When Justinian became emperor, the law of Prescription in his domi- ^
nions consisted really of two heterogeneous portions. Res mobiles could
be acquired by the old civil kiw usucapio in a year ; but practically all the
soil of the Eastern Empire was 'provincial,' so that the old biennii
usucapio had no application; its place was supplied by the praetorian

230 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

imperio gubematur, dominium rerum iusta causa possessionis
praecedente adquiratur.

1 Sed aliquando etiamsi maxime quis bona fide rem possederit,
non tamen illi usucapio ullo tempore procedit, veluti is quis
liberum hominem vel rem sacram vel religiosam vel servum

2 fugitivum possideat. Furtivae quoque res et quae vi pos-
sessae sunt, nee si praedicto longo tempore bona fide pos-
sessae fuerint, usucapi possunt : nam furtivarum rerum lex
duodecim tabularum et lex Atinia inhibet usucapionem, vi

3 possessarum lex lulia et Plautia. Quod autem dictum est

longi temporis possessio of ten or twenty years. Justinian reformed the
old law as follows : (i) he did away with the old legal distinction
between Italian and provincial soil; (2) altered the periods of time
required, as stated in this section, three years instead of one being now
necessary for the usucapio of res mobiles ; and (3) upon the analogy
of Theodosius ITs prescription of actions, he enacted that thirty years'
possession of property, moveable or immoveable, should confer ownership,
whether it admitted of the ordinary usucapio or no, and even in the
absence of iustus titulus, Cod. 7. 39. 8. This was called longissimi tem-
poris praescriptio.

§ 1. The mention of the runaway slave in this rather than in the next
section ('ancilla fugitiva sui furtum facere intellegitur * Dig. 47. 2. 60 ; cf.
Cod. 6. 1. l) is perhaps due to the senatus-consult (Dig. 48. 15. 2) which
prohibited alienation of fugitivi, and so might be said in some sense to
have placed them in the category of res extra commercium.

§ 2. The relation between the enactment of the Twelve Tables and the
lex Atinia (which apparently was passed about the middle of the second
century B.C.) seems to have been that the latter, while repeating the pro-
hibition of the former, added that the vitium furti should be purged
as soon as the object returned to the possession of the owner. Dig. 41. 3.
4. 6 ; 50. 16. 215 : see on § 3 inf.

The lex Julia et Plautia of this section and of Gaius ii. 45 is in Dig. 41.
3. 33. 2 called Plautia et Julia. Theophilus tells us that they were two
distinct statutes : the one perhaps the lex Plautia de vi, mentioned by
Cicero pro Mil. 13, ad fam. viii. 8, and enacted probably B.C. 79: the
other the well known lex Julia de vi, iv. 18. 8 inf., Dig. 48. 7. So far as
concerns usucapion they related mainly to land, which did not come
within the operation of the Twelve Tables and the lex Atinia, § 7 inf. It
is clear from that section that if a piece of land was once ' vi possessa *
not even a bona fide possessor could acquire it by usucapion, any more
than he could a thing which had been stolen: but a man might be vi
dejectus without his land being possessed by force : ' lex Plautia et Julia
ea demum vetuit longa possessione capi, quae vi possessa fuissent, non
etiam ex quibus vi quis deiectus fuisset,' Dig. 43. i. 33. 2.

§ 8. The vitium furti was purged, so that the thing became again capable

Tit. 6.] DE USUCAPIONIBUS, ETC. %^X

furtivarum et vi possessarum rerum usucapionenl per legem
prohibitam esse, non' eo pertinet, ut ne ipse fur quive per vim
possidet usucapere possit : nam his alia ratione usucapio non
competit, quia scilicet mala fide possident : sed ne ullus alius,
quamvis ab eis bona fide emerit vel ex alia causa acceperit,
usucapiendi ius habeat. unde in rebus mobilibus non facile
procedit, ut bonae fidei possessori usucapio competat. nam
qui alienam rem vendidit vel ex alia causa tradidit, furtum
eius committit. Sed tamen id aliquando aliter se habet. nam 4
si heres rem defuncto commodatam aut locatam vel apud eum
depositam existimans hereditariam esse bona fide accipienti
vendiderit aut donaverit aut dotis nomine dederit, quin is qui
acceperit usucapere possit, dubium non est, quippe ea res in
furti vitium non ceciderit, cum utique heres, qui bona fide
tamquam suam alienaverit, furtum non committit Item si is, 5
ad quem ancillae usus fructus pertinet, partum suum esse
credens vendiderit aut donaverit, furtum non committit : fur-
tum enim sine affectu furandi non committitur. Aliis quoque 6
modis accidere potest, ut quis sine vitio furti rem alienam ad
aliquem transferat et efficiat, ut a possessore usucapiatur*
Quod autem ad eas res, quae solo continentur, expeditius pro- 7
cedit, ut quis loci vacantis possessionem propter absentiam
aut neglegentiam domini, aut quia sine successore decesserit,

of being acquired by usucapion, if it returned into the hands of its owner (§ S
inf. ; cf. Bk. iv. i . 1 2) or of his agent to his knowledge. Hence if a man steals
his own property (e.g. from a usufructuary or bona fide possessor) usucapion
is not hindered, Dig. 47. 2. 20. i. It is deemed to have returned to his /
hands as soon as he knows who has got it, and is consequently able to
bring a real action for its recovery : ' in lege Atinia in potestatem domini
rem furtivam venisse videri, et si eius vindicandae potestatem habuerit,
Sabinus et Cassius aiunt' Dig. 50. 16. 215. It is uncertain whether the
vitium was purged by the property being restored to the possession of
him from whom, though not its owner, it was stolen, e. g. the bona fide
possessor, usufructuary, or pledgee ; Dig. 41. 3. 4. 6 distinctly says no, but
49 of the same Title contains a genuine exception.
§ e^ For other cases see Dig. 41. 8. 4, Paul. sent. rec. 5. 2. 5, Cod. 7.

33. I.

§ 7. Justinian altered the law, as it is here stated, by Nov. 119. 7, by
which he enacted that a bona fide possessor of land by transfer from a
mala fide possessor should become owner by usucapio in ten or twenty
years only if all the facts were known to the dominus ; otherwise thirty
years' {>os5ession was required.

2i% INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

sine vi nanciscatiir. qui quamvis ipse mala fide possidet, quia
intellegit se alienum fundum occupasse, tamen, si alii bona
fide accipienti tradideiit, poterit ei longa possessione res ad-
quiri, quia neque furtivum neque vi possessum accepit, abolita
est enim quorundam veterum sententia existimantium etiam
fundi locive furtunoi fieri eteorum, qui res soli possident, prin-
cipalibus constitutionibus prospicitur^ ne cui longa et indubi-

8 tata possessio auferri debeat. Aliquando etiam furtiva vel vi
possessa res usucapi potest : veluti si in domini potestatem
reversa fuerit. tunc enim vitio rei purgato procedit eius usu-

9capio. Res fisci nostri usucapi non potest, sed Papinianus
scribit bonis vacantibus fisco nondum nuntiatis bona fide emp-
torem sibi traditam rem ex his bonis usucapere posse : et ita

10 divus Pius et divus Severus et Antoninus rescripserunt. No-
vissime sciendum est rem talem esse debere, ut in se non
habeat vitium, ut a bona fide emptore usucapi possit vel qui
ex alia iusta causa possidet.

11 Error autem falsae causae usucapionem non parit. veluti si
quis, cum non emeiit, emisse se existimans possideat : vel cum
ei donatum non fuerat, quasi ex donatione possideat.

12 Diutina possessio, quae prodesse coeperat defuncto, et
heredi et bonorum possessori continuatur, licet ipse sciat prae-

§ 9. Bona vacantia is property of a deceased person who leaves no
' successor, dvil or praetorian, Dig. 49. 14. i. 2 ; 44. 3. 10. i, Cod. 10. 10.

§ 10. Apparently a general statement of the rule which §§ 1-9 are
intended to exemplify.

§ 11. The commentators use the phrase titulus putativus for cases of
this sort. Justinian's statement of the law must he taken subject to the
exception that a titulus putativus will support usucapio where the error is
of fact and excusable, Dig. 41. 10. 5 ; 41. 4. 11. Conversely, usucapio will
operate where there is a iusta causa unknown to the possessor, Dig. ib.
2. 2. The rule has no application when there is a mere mistake in the
causa, as where the transferor means to give, and the transferee to buy,
Dig. 41. 3. 31. 6, ib. 44. 4 ; see Tit. 20. 30 inf., and cf. note on Tit. i. 40
supr. ad fin.

§ 12. Accessio temporis or possessionis, the reckoning together, as
one possession, the otherwise unbroken possession of a man and his
successor in title for purposes of usucapio, had been allowed very early,
if not always, between a deceased person and his heirs, on the ground
of their fictitious identity, which was so consistently realised that (as is
remarked in the text) if the deceased was in condicione usucapiendi, no
mala fides on the part of the heir on succeeding vitiated the possession.

Th.6.] DE USUCAPIONIBUS, ETC 233

dium alienum : quodsi ille initium iustum non habuit, heredi
et bonorum possessor! licet ignoranti possessio non prodest.
quod nostra constitutio similiter et in usucapionibus observari
constituit, ut tempora continuentur. Inter venditorem quoque 13
et emptorem coniungi tempora divus Severus et Antoninus
rescripserunt.

Edicto divi Marci cavetur eum, qui a fisco rem alienam 14
emit, si post venditionem quinquennium praeterierit, posse
dominum rei per exceptionem repellere. constitutio autem
divae memoriae Zenonis bene prospexit his, qui a fisco per
venditionem vel donationem vel alium titulum aliquid acci-
piunt, ut ipse quidem securi statim fiant et victores existant,
sive conveniantur sive experiantur : adversus sacratissimum
autem aerarium usque ad quadriennium liceat intendere his,
qui pro dominio vel hypothcca earum rerum, quae alienatae
sunt, putaverint sibi quasdam competere actiones. nostra
autem divina constitutio, quam nuper promulgavimus, etiam
de his, qui a nostra vel venerabilis Augustae domo aliqyid

Under the contrary supposition, not only could the heir not reckon the
dejceased's possession, but could not acquire by usucapio even if his own
possession had commenced bona fide. Dig. 44. 3. 1 1, and though the heir's
alienee in § 4 supr. could acquire in this manner, he could not do so
himself. The same principles were applied to the bonorum possessor,
but not the legatee. By usucapionibus at the end of the section is meant
Justinian's new system of usucapio.

§ 13. In the case of singular as distinct from universal succession acces- ,
sio possessionis does not seem to have been allowed in the old civil law
usucapio except between vendor and vendee, and that not until the
rescript mentioned in the text. In the corresponding praetorian system
(longi temporis possessio) it was permitted if the justice of the particular
case seemed to require it : ' de accessionibus possessionum nihil in per-
petuum neque generaliter definire possumus, consistunt enim in sola
aequitate ' Dig. 44. 3. 14. pr. Under Justinian it was allowed in all cases
between the usucapion possessor and his predecessor in title (Dig. 41. 4.
2. 17 and 20; 44. 3. 15. 1-6, Cod. 7. 31) provided there had been no
break, vacuum tempus. Dig. 44. 3. 15. i.

§ 14. For Zeno's constitution see Cod. 7. 37. 2. Under the older law
there had been three abnormal cases of usucapio, in which the ordinary '
rules were suspended in respect either of bona fides, titulus, or length
of the possession, viz. usucapio lucrativa or possessio pro herede, prac-
tically abolished by a senatus-consult of Hadrian's time (SC. luventianum)r

234 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

acceperiiit, haec statuit, quae in fiscalibus alienationibus prae*
fata Zenoniana constitutione continentur.

VII.

\, DE DONATIONIBUS.

Est etiam aliud genus adquisitionis donatio, donationum
autem duo genera sunt : mortis causa et non mortis causa.
1 Mortis causa donatio est, quae propter mortis fit suspicionem,
cum quis ita donat, ut, si quid humanitus ei contigisset,
haberet is qui accepit : sin autem supervixisset qui donavit,
reciperet, vel si eum donationis poenituisset aut prior deces-
serit is cui donatum sit. hae mortis causa donationes ad
exemplum legatorum redactae sunt per omnia, nam cum
prudentibus ambiguum fuerat, utrum donationis an l^ati
instar eam optinere oporteret, et utriusque causae quaedam
habebat insignia et alii ad aliud genus eam retrahebant : a

Gaius ii. 52-58 ; usureceptio lucrativa, ib. 59 ; and usureceptio ex prae-
diatura, ib. 60. 61.

Tit Vn. Donatio was perhaps treated by the older jurists as a distinct
mode of acquisition because, under the law of the lex Cincia (for which see
inf.), as a rule ' sola promissio non perficit donationem, sed exigitur, ut . . .
et interdicto superior sit is, cui [donatum est] ' fragm. Vat. 311 : and to
succeed in the interdict it was necessary that the donee should have a
possession which would suffice to make him dominus either Quiritarian
or bonitarian. They regarded it as a civilis adquisitio probably because
res mancipi could be given only by mancipatio, fragm. Vat. 263, 4. Jus-
tinian's treatment of it as a civil mode of acquisition is indefensible : it is
not gift alone, as Savigny remarks, which confers dominium in any case,
but gift in combination with and serving as a iusta causa (p. 212 supr.) for
traditio, exactly as sale or exchange might serve. Again, it is not neces-
sary that donatio should take the form of conferring dominium : it may
consist in the constitution of a ius in re aliena, the transfer of possession,
the giving of an actionable promise, or the release of a debt.

Donatio in the widest sense is any other than a testamentary dis*
position, which (i) is accompanied by consensus between the two parties :
(2) voluntarily, gratuitously, and intentionally improves the proprietary
position of the donee ; and (3) actually or prospectively diminishes the
property of the donor. Provided these conditions are satisfied, it may
take any of the forms above mentioned.

§ 1. A donatio mortis causa stands midway between a legacy and a
gift inter vivos. In that it consists in a present act of bounty (' praesens
praesenti dat ' Dig. 39. 6. 38) it differs from the former, which confers no
right whatever on the legatee until the testator is dead and his heir has

Tit. 7.] DE DONATION/BUS. %iS

nobis constitutum est, ut per omnia fere legatis connumeretur
et sic procedat, quemadmodum earn nostra formavit consti-
tutio. et in summa mortis causa donatio est, cum magis se
quis velit habere, quam eum cui donatur, magisque eum cui
donat, quam heredem suum. sic et apud Homerum Tele-,
machus donat Piraeo.

accepted the inheritance : here, if the donee outlives the donor, the thing
given never goes to the heres at all. It differs from the latter in being
absolutely perfected only by the donor's decease. The gift may be made
so conditional on that event, that the property in the gift does not pass
to the dbnee until its occurrence ; in the meanwhile he has only its use
and enjoyment : or the property may pass at once, subject to the under-
standing that it is to revert to the donor in case of his proving the better
life. Where the gift is made in anticipation of some especial danger
threatening him, it is cancelled not only by the donee's prior decease, but
also so soon as that danger is survived. In any case the donor may
revoke the gift at any moment prior to his decease (^ cum quis ita don^
ut . . • reciperet si eum donationis poenituisset '). Justinian's later state-
ment, that in nearly all respects donationes mortis causa were governed
by the same rules as legacies, is truer than his earlier one, that the
parallelism was complete. Thus (i) donatio m. c. was quite independent
of the fate of the inheritance : legacy depended on acceptance of the
hereditas. (2) No particular qualification in the way of commercium
was required in either donor or donee : the validity of a legacy pre-
supposed testamenti factio in both parties : similarly a filiusfamiHas could
with his pater's consent make gifts mortis causa from his ordinary pe-
culium, but in no case could he bequeath it. (3) Legacies were avoided
by the successful bringing of a querella inofficiosi (Tit 18 inf.), but gifts
m. c. were not so affected : ' qui mortis causa donationem accepit a
testatore, non est similis in hac causa legatario' Dig. 34. 9. 5. 17. But
among the points of resemblance are the following: (i) The rules of the
leges Furia and Voconia, Tit. 22. pr. inf. applied to both, Gaius ii. 225, 6 ;
iv. 23. (2) The provisions of the leges lulia and Papia Poppaea (note on
Tit. 14* pr* inf.) as to capacity to take legacies was extended to gifts m. c.
by a senatus-consult, Dig. 39. 6. 35. pr. (3) By a constitution of Septimius
Severus the heir was entitled to deduct the Falcidian fourth (Tit. 22 inf.)
from such gifts. Cod. 8. 57. 2. 2 ; 6. 50. 5. (4) If the donor became in-
solvent the creditors might impeach his gifts mortis causa : ' nam cum
legata ex testamento eius, qui solvendo non fuit, omnimodo inutilia
sunt, possunt videri etiam donationes mortis causa factae rescindi debere,
quia legatorum instar obtinent ' Dig. 39. 6. 17. (6) Gifts m. c, like legacies,
became void if the donor underwent capital punishment. Dig. ib. 7.

No particular form was prescribed for this class of gift unless its amount
exceeded 500 solidi, in which case it must either be registered (insinuatio
in acta) or made before five witnesses of the same qualification as was
required in the execution of codiciUi (note on Tit. 25. 3 inf.), Cod. 8. 57. 4.

236 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

2 Aliae autem donationes sunt, quae sine ulla mortis cogita-
tione fiunt, quas inter vivos appellamus. quae omnino non
comparantur legatis : quae si fuerint perfectae, temere revo-

Most editions of the Institutes insert at the end of this section some
lines from Odyssey 17. 78-83.^»^They are not found, however, in the great
majority of the MSS., nor in ihe passage of Marcianus in Dig. 39. 6. i
from which our text is obviously derived.

§ 2. When the gift takes the form of a promise, the latter, and not its
performance, is the gift, for performance can be enforced by action, and
' donari videtur quod nullo iure cogente conceditur ' Dig. 50. 17. 82. Such
promises originally were not actionable unless made by stipulatio : Anto-
ninus Pius made a mere formless promise actionable between parents
and children (fragm. Vat. 314) ; and, as appears from this section, Jus-
tinian extended this to all persons whatsoever : * non ex hoc inutilis sit
donatio, quod res non traditae sunt, nee confirmetur ex traditione
donatio ' Cod. 8. 54. 35. 5.

Gifts inter vivos were not as a rule revocable, like those made mortis
causa. By the old law, the pater or patronus might revoke gifts to an
emancipated child or libertus during their joint lives (fragm. Vat. 272),
but this right was limited by Diocletian and succeeding emperors to
cases in which ingratitude could be proved, or where children were sub-
sequently bom to the donor. Justinian, as he here says, while permitting
all donors without distinction to revoke on the first of these grounds,
carefully specified the acts which amounted to legal ingratitude, Cod.
8. 56. 10.

Gifts were forbidden between husband and wife by customary law,
'ne mutuo amore invicem spoliarentur ' Dig. 24. i. i. Allusion is also
made in this section to the invalidity of gifts exceeding a certain maximum
unless made under prescribed forms. The oldest enactment on this
subject is the lex Cincia de muneribus, B. C 204, from the operation of
which, however, certain classes of persons were excepted on the ground of
kinship, affinity, patronatus, or the donor's being the donee's guardian.
It appears to have enacted that, as between personae non exceptae, gifts
should be imperfect and revocable in whole or part either if they exceeded
a certain maximum, the amount of which is unknown, or unless both
ownership and possession of the thing given were conveyed in the ap-
propriate manner (mancipatio and traditio), fragm. Vat. 310-313. Being
a lex imperfecta, it did not avoid a gift which failed to satisfy both of
these conditions, or impose a penalty on the donee : but the introduc-
tion of the exceptio legis Cinciae practically enabled donors to revoke
gifts which violated the statute at any moment prior to their decease
(* morte Cincia removetur' fragm. Vat 259. 266). If one may argue from
the analogy of the lex Furia tesUmentaria (Tit. 22. pr. inf.), the maximum
fixed by the lex Cincia was one which two hundred years afterwards
must have seemed ridiculously small : it is not improbable that after
some while observation of the statutory requirement as to form (con-

Tit. 7.] DE DONATIONIBUS. 237

can non possunt. perficiuntur autem, cum donator suam
voluntatem scriptis aut sine scriptis manifestaverit : et ad
exemplum venditionis nostra constitutio eas etiam in se
habere necessitatem traditionis voluit, ut, et si non tradantur,
habeant plenissimum et perfectum robur et traditionis neces-
sitas incumbat donatori. et cum retro principum disposition's
insinuari eas actis intervenientibus volebant, si maiores ducen-
torum fuerant solidorum, nostra constitutio et quantitatem
usque ad quingentos solidos ampliavit, quam stare et sine
insinuatione statuit, et quasdam donationes invenit, quae pe-
nitus insinuationem fieri minime desiderant, sed in se plenis*
simam habent firmitatem. alia insuper multa ad uberiorem
exitum donationum invenimus, quae omnia ex nostris consti-
tutionibus, quas super his posuimus, colligenda sunt, sciendum
tamen est, quod, etsi plenissimae sint donationes, tamen si
ingrati existant homines, in quos beneficium coUatum est,
donatoribus per nostram constitutionem licentiam praestavi-
mus certis ex causis eas revocare, ne, qui suas res in alios
contulerunt, ab his quandam patiantur iniuriam vel iacturam,
secundum enumeratos in nostra constitutione modos. Est et 8

veyance) was allowed to atone for violation of the rule as to amount,
so that the latter became tacitly repealed by disuse: the rareness of
passages referring to the maximum seems to require some such hypothesis.

To facilitate proof, it appears to have become common under the
empire to register gifts apud acta (fragm. Vat. 266 a, 268). Such registra- '
tion was made compulsory for all gifts exceeding 200 solidi in value,
except those to personae exceptaelege Cincia, by Constantius Chlorus: of
this privilege even they were deprived by Constantine, Cod. Theod. 8. 12.
3. 5, as later still they were of the other advantage they had enjoyed under
the old statute, viz. that gifts between them did not require conveyance
for their perfection (Cod. Theod. 8. 12. 5), which was allowed to survive
in favour only of parents and children. Justinian, as he says here, enacted
that delivery should in no case be essential for the perfection of the gif^,
and relieved gifts of more than 200 but not exceeding 500 solidi from the
necessity of registration: where one exceeding that amount was un-
registeredy the excess could not be claimed. The gifts to which he refers
as not requiring registration however large are gifts to and from the
emperor, those forming a dos so far as they can be construed as gifts to
the wife, and such as were made for the redemption of captives and
the rebuilding of houses fallen or otherwise destroyed, Cod. 8. 54. 34;
5. 12. 31.

§ 3. The donatio ante or propter nuptias was gradually developed out

238 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

aliud genus inter vivos donationum, quod veteribus quidem
prudentibus penitus erat incognitum, postea autem a iunioribus
divis principibus introductum est, quod ante nuptias vocabatur
et tacitam in se condicionem habebat, ut tunc ratum esset,
cum matrimonium fuerit insecutum : ideoque ante nuptias «^p-
pellabatur, quod ante matrimonium efficiebatur et nusquam
post nuptias celebratas talis donatio procedebat. sed primus
quidem divus lustinus pater noster, cum augeri dotes et post
nuptias fuerat permissum, si quid tale evenit, etiam ante
nuptias donationem augeri et constante matrimonio sua con-
stitutione permisit ; sed tamen nomen inconveniens remanebat,
cum ante nuptias quidem vocabatur, post nuptias autem tale
accipiebat incrementum. sed nos plenissimo fini tradere sanc-
tiones cupientes et consequentia nomina rebus esse studentes
constituimus, ut tales donationes non augeantur tantum, sed
et constante matrimonio initium accipiant et non ante nuptias,
sed propter nuptias vocentur et dotibus in hoc exaequentur,
ut, quemadmodum dotes et constante matrimonio non solum
augentur, sed etiam fiunt, ita et istae donationes, quae propter
nuptias introductae sunt, non solum antecedant matrimonium,
sed etiam eo contracto et augeantur et constituantur.
4 Erat olim et alius modus civilis adquisitionis per ius ad-

of the arrha or sponsalicia iargitas, and its object, like that of the dos, was
to support the expenses of the joint household : hence the extension
to it of nearly all the rules relating to the former, and the name avriifttpva
(antidos) given to it in Cod. 5. 3. 20. 2. There are no constitutions bearing
• upon it earlier than Theodosius II. The woman had a legal claim against
the husband's paterfamilias to a donatio propter nuptias, Cod. 5. 11. 2,
and by Nov. 97. i and 2 Justinian enacted that the donatio should be
equivalent in amount to the dos which the wife brought with her. During
the continuance of the marriage it was under the control of the husband,
and in fact belonged to him, but he could not alienate land or houses
comprised in it even with the consent of the wife, who had by Justinian's
law a statutory hypothec over all his property to secure its delivery
should she become entitled. In case of her death, or divorce through
her fault, it ceased to have any further legal existence ; if the marriage
terminated through the husband's death or divorce occasioned by him,
she had no claim upon it, unless there was issue, save by express agree-
ment ; if there was issue, she was entitled to the usufruct ; the dominium,
she shared with the children. If the husband became insolvent, or even
embarrassed, she could demand it at once. Cod. 5. 12. 29.
§ 4. For thi$ ius adcrescendi cf. Ulpian, reg. i. 18, Paul. sent. rec. 4.

Tit. 8.] QUIBUS ALIENARE LICET VEL NON, ^39

crescendi, quod est tale: si communem servum habehs aliquis
cum Titio solus libertatem ei imposuit vel vindicta vel testa-
mento, eo casu pars eius amittebatur et socio adcrescebat.
sed cum pessimo fuerat exemplo et libertate sen'um defrau-
dari et ex ea humanioribus quidem dominis damnum inferri,
severioribus autem lucrum adcrescere: hoc quasi invidiae
plenum pio remedio per nostra constitutionem mederi neces^
sarium duximus et invenimus viam, per quam et manumissor
et socius eius et qui libertatem accepit nostro fruantur beneficio,
libertate cum effectu procedente (cuius favore et antiquos
legislatores multa et contra communes regulas statuisse mani-
festissimum est) et eo qui eam imposuit suae liberalitatis sta-
bilitate gaudente et socio indemni conservato pretiumque
servi secundum partem dominii, quod nos definivimus, acci-*
piente.

VIII.

QUIBUS ALIENARE LICET VEL NON.

Accidit aliquando, ut qui dominus sit alienare non possit
et contra, qui dominus non sit alienandae rei potestatem
habeat. nam dotale praedium maritus invita muliere per
l^em luliam prohibetur alienare, quamvis ipsius sit dotis

12. I, and for Justinian's change Cod. 7. 7. With cuius favore et antiquos
legislatores etc. cf. Dig. 40. 5. 24. 10 'multa contra iuris rigorem pro
libertate sunt constituta,' 35. 2. 32. 5 'favor libertatis . . . saepe benigniores
sententias exprimit' By legislatores seems to be meant the jurists.

Tit. VIII. For the anomalies mentioned here cf. Seneca, benef. 7. 12
' non est argumento, ideo aliquid tuum non esse, quia vendere non potes,'
Dig. 41. 1. 46 'non est novum, ut, qui dominium non habeat, alii dominium
praebeat,' Cic. pro Balbo 13 'fundamenta firmissima nostrae libertatis,
sui quemque iuris et retinendi et dimittendi esse dominum,' Tit. i. 40
supr. and Dig. 50. 17. 54 'nemo plus iuris in alium transferre potest,
quam ipse haberet.'

The lex Julia was that of Augustus, de adulteriis, Paul. sent. rec. 2.
21 b. 2, In the time of Gaius (ii. 63) it had been doubted whether it
applied to praedia provincial ia.

Besides the cases mentioned in the text, alienation was prohibited
(l) of res litigiosa, property which was the subject of a real action or
iudicium divisorium, Nov. 112. i ; (2) of immoveable property forming
part of a donatio propter nuptias or belonging to religious or charitable
foundations; (3) of peculium adventitium without the consent of the
paterfamilias. The effect of an alienation forbidden by law is niL

\^

340 INSTITUTIONUM LIBRI QUATTUOR. [Lib. 11.

causa ei datum, quod nos l^em luliam corrigentes in
meliorem statum deduximus. cum enim lex in soli tantum-
modo rebus locum habebat, quae Italicae fuerant, et aliena-
tiones inhibebat quae invita muliere fiebant, hypothecas
autem earum etiam volente : utrisque remedium imposuimus,
ut etiam in eas res, quae in provincial! solo positae simt,
interdicta fiat alienatio vel obligatio et neutrum eorum neque
consentientibus mulieribus procedat, ne sexus muliebris fra-

1 gilitas in perniciem substantiae earum converteretur. Contra
autem creditor pignus ex pactione, quamvis eius ea res non
sit, alienare potest, sed hoc forsitan ideo videtur fieri, quod
voluntate debitoris intellegitur pignus alienare, qui ab initio
contractus pactus est, ut liceret creditor! pigfnus vendere, si
pecunia non solvatur. sed ne creditores ius suum persequi
impedirentur neque debitores temere suarum rerum dominium
amittere videantur, nostra constitutione consultum est et certus
modus impositus est, per quem pignorum distractio possit
procedere, cuius tenore utrique parti creditorum et debitorum

2 satis abundeque provisum est. Nunc admonendi sumus ne-
que pupillum neque pupillam ullam rem sine tutoris auctori-
tate alienare posse, ideoque si mutuam pecuniam alicui sine
tutoris auctoritate dederit, non contrahit obligationem, quia
pecuniam non facit accipientis. ideoque vindicare nummos
possunt, sicubi extent : sed si nummi, quos mutuos dedit, ab
eo qui accepit bona fide consumpti sunt, condici possunt, si
mala fide, ad exhibendum de his agi potest, at ex contrario
omnes res pupillo et pupillae sine tutoris auctoritate recte
dari possunt. ideoque si debitor pupillo solvat, necessaria est
tutoris auctoritas : alioquin non liberabitur. sed etiam hoc
evidentissima ratione statutum est in constitutione, quam ad
Caesareenses advocatos ex suggestione Triboniani viri eminen-
tissimi quaestoris sacri palatii nostri promulgavimus, qua
dispositum est ita licere tutori vel curator! debitorem pupil-

§ 1. For the power of sale in a pignus and for Justinian's own regula-
tions thereon see Excursus II. inf. 'Ab initio contractus' represents
* ollm ' in the corresponding passage of Gaius (ii. 64), who seems to be
referring to the time when a power of sale was not inherent in a pignus :
see Javolenus in Dig. 47. 2. 73.

§ 2. For the necessity of the guardian's auctoritSis in certain classes of

Tit. 9.1 PER QUAS PERSONAS NOBIS ADQUIRITUR. 241

larem solvere, ut prius sententia iudicialis sine omni damna
celebrata hoc permittat. quo subsecuto, si et ludex pronun-
tiaverit et debitor solvent, sequitur huiusmodi solutionem
plenissima securitas. sin autem aliter quam disposuimus
solutio facta fuerit et pecuniam salvam habeat pupillus aut ex
ea locupletior sit et adhuc eandem summam pecuniae petat,
per exceptionem doli mail summoveri poterit: quodsi aut
male consumpserit aut furto amiserit, nihil proderit debitor i
doli mali exceptio, sed nihilo minus damnabitur, quia temere
sine tutoris auctoritate et non secundum nostram dispositionem
solvent, sed ex diverso pupilli vel pupillae solvere sine tutore
auctore non possunt, quia id quod solvunt non fit accipientis,
cupi scilicet nuUius rei alienatio eis sine tutoris auctoritate
concessa est.

IX.

PER QUAS PERSONAS NOBIS ADQUIRITUR.

Adquiritur nobis non solum per nosmet ipsos, sed etiam
per eos quos in potestate habemus : item per eos servos, in
quibus usum fructum habemus : item per homines liberos et
3ervos alienos quos bona fide possidemus. de quibus singulis
diligentius dispiciamus. Igitur liberi vestri utriusque sexus, 1

dispositions see on Bk. i. 21. pr. supr. : for condictio v. General Index:
for the actio ad exhibendum, Bk, iv. 6. 31 inf. The enactment to which
Justinian refers, requiring a judicial order before payment could safely
be made to a guardian, is in Cod. 5. 37. 25.

Tit. IX. The problem of agency in the acquisition of ownership and
possession, upon which there is a good deal in this Title, may be stated
thus : — Will delivery of possession, or conveyance of ownership, to B,
acting as agent for A, make A possessor or owiier without more, or is it
necessary that there shall be a second conveyance from B to A ? This
question the old law answered in the negative: it tolerated only one
necessary exception. Some persons, viz. slaves, filiifamilias, and those in
manu or mancipio, could not hold property owing to their subjection to a
superior : if ownership or possession (as to the latter there was a doubt
in respect of those in manu or mancipio, Gaius ii. 90) was transferred to
them, the conveyance, unless it was to be nugatory, must enure solely to
the benefit of the superior : they served solely as conduit-pipes through
whom rights passed instantaneously to the latter, Gaius ii. 86-88. Other
gradual modifications of the strict old rule are noticed in the text and
following notes.

§§ 1, 2. The first inroad upon the proprietary incapacity of the filius-s

R

242 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

quos in' potestate habetis, olim quidem, quidquid ad eos
pervencrat (exceptis videlicet castrensibus peculiis), hoc paren-
tibus suis adquirebant sine ulla distinctione : et hoc ita
parentum fiebat, ut esset eis licentia, quod per unum vel
unam eorum adquisitum est, alii vel extraneo donare vel
vendere vel quocumque modo voluerant applicare. quod
nobis inhumanum visum est et general! constitutione emissa
et liberis pepercimus et p^tribus debitum reservavimus. san-
citum ctenim a nobis estf^ut, si quid ex re patris ei obveniat,
hoc secundum antiquam observationem totum parenti adquirat
(quae enim invidia est, quod ex patris occasione profectum
est, hoc ad eum reverti ?) : quod autem ex alia causa sibi fUius
familias adquisivit, huius usum fructum quidem patri adquiret,
dominium autem apud eum remaneat, ne, quod et suis labor-
ibus vel prospera fortuna accessit, hoc in alium perveniens
2 luctuosum ei procedat. Hocque a nobis dispositum est et in
ea specie, ubi parens emancipando liberum ex rebus quae
adquisitionem effugiunt sibi partem tertiam retinere si voluerat
licentiam ex anterioribus constitutionibus habebat quasi pro

familias was made about the time of Augustus, in favour of the military
profession, it being enacted that of whatever a son in power acquired as
soldier, e. g. outfit, pay, booty, gifts, legacies, etc. from comrades, etc, he
should be absolute owner, under the name of peculium castrense, with
full powers of disposition both inter vivos and by will, Dig. 49. 17. 11:
'filiifamilias in castrensi peculio vice patrumfaijiiliarum funguntur,' Dig. 14.
6. 2 : cf. Dig. 4. 4. 3. 10: 49. 17. 15. 3 : cf. ii. 12. pr. inf.: if he died
without disposing of it in the latter way, it went to the pater, iure com-
munis as peculium. No further changes were made for about three
hundred years ; but under Constantine the earnings of a filiusfamilias in
certain offices of the public service were made entirely his own (peculium
quasi-castrense) except that as a rule he could not dispose of them by will
(Tit. XI. 6 inf.), a privilege first conferred by Justinian; and the term
was gradually made to include all official, public, and ecclesiastical
salaries, fees earned by advocates, and gifts from the emperor. Under
Justinian the succession to peculium castrense or quasi-castrense, if the
owner died intestate, was governed by the ordinary rules : the pater could
succeed only as heres, not iure peculii, and was postponed to certain
other relations of the deceased. By another enactment of Constantine
bona materna, property descending to a child in power from his or her
mother, were in future to belong to the child, the pater, however, having
the administration and usufruct during his lifetime. This, which is com-
monly called peculium adventitium (in contradistinction to peculium
profectitium, property of his own which the pater allowed the child to

Tit. 9.] PER QUAS PERSON AS NOBIS ADQUIRITUR. 245

pretio quodammodo exhancipationis et inhumailum^ quid* acci«
debat, ut iilius rerum suarum ex hac emancipatione dominio
pro parte defraudetur et, quod honoris ei ex emancipatione
additum est, quod sui iuris effectus est, hoc per rerum deminu-
tionem decrescat. ideoque statuimus, ut parens pro tertia
bonorum parte dominii, quam retinere poterat, dimidiam non
dominii rerum, sed usus fructus retineat : ita etenim et res
intactae apud filium remanebunt et pater amph'ore summa
fruetur pro tertia dimidia potiturus. Item vobis adquiritur, 3
quod servi vestri ex traditione nanciscuntur sive quid stipu-
lentur vel ex qualibet alia causa adquirunt. hoc enim vobis
et ignorantibus et invitis obvenit. ipse enim servus qui in
potestate alterius est nihil suum habere potest sed si heres
institutus sit, non alias nisi iussu vestro hereditatem adire
potest : et si iubentibus vobis adierit, vobis hereditas adquiri-
tur, perinde ac si vos ipsi heredes instituti essetis. et con-
venienter scilicet legatum per eos vobis adquiritur. non solum
autem proprietas per eos quos in potestate habetis adquiritur
vobis, sed etiam possessio: cuiuscumque enim rei possessionem

enjoy without prejudicing his right to resume it at any moment) was ex-
tended by the emperors between Gratian and Honorius so as to include
all bona matemi generis, property coming to the child from the mother or
maternal ancestors by any tide whatever : Theodosius II added lucra
nuptialia (dos and donatio propter nuptias), and reformed the rules as to
the intestate succession to peculium adventitium by preferring the child's
own issue to the pater, who by Leo and Anthemius was postponed also
to brothers and sisters. Justinian, as he says in § I, included under
peculium adventitium (which in the text is called ' res quae adquisitionem
effugiunt ') all that the child acquired otherwise than ex re patris or in the
way of peculium castrense or quasi-castrense : under his legislation con-
sequently a child might have rights over property of three kinds, over one
of which he had the absolute control ; one over which his pater had a
usufruct, while he was its dominus; and lastly peculium profectitium,
property of the pater which the latter could resume at will, and of which
he himself had only the use and enjoyment. If he were emancipated,
the father originally was entitled absolutely to one-third of the p^lium
adventitium, * quasi pro pretio emancipationis : ' the change which Jus-
tinian made in this matter is mentioned in § 2.

§ 8. For the institution of servus alienus as heres see Tit. 14. i, 2, Tit.
19. 4 inf. : for stipulations of slaves, Bk. iii. 17 inf. : for acquisition of
possession through one's own slave, p. 241 supr. Possession could not be
thus acquired unless the slave was himself possessed by the dominus,
Dig. 41. I. 21. pr., e.g. if he was in pledge, Dig. 41. 2, i. 15.

R 2

^44 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

adepti fuerint, id vos possidere videmini. unde etiam per eos
4 usucapio vel longi temppris possessio vobis accedit. De his
autem servis, in quibus tantum usum fructum habetis, ita
placuit, ut, quidquid ex re vestra vel ex operibus suis adquir-
ant, id vobis adiciatur, quod vero extra eas causas persecuti
sunt, id ad dominum proprietatis pertineat. itaque si is servus
heres institutus sit legatumve quid ei aut donatum fuerit, non
usufructuario, sed domino proprietatis adquiritur. idem placet
et de eo, qui a vobis bona fide possidetur, sive is liber sit sive
alienus servus: quod enim placuit de usufructuario, idem
placet et de bonae fidei possessore, itaque quod extra duas
istas causas adquiritur, id vel ad ipsum pertinet, si liber est,
vel ad dominum, si servus est. sed bonae fidei possessor cum
usuceperit servum, quia eo modo dominus fit, ex omnibus cau-
sis per eum sibi adquirere potest : fructuarius vero usucapere
non potest, primum quia non possidet, sed habet ius utendi
fruendi, deinde quia scit servum alienum esse, non solum
autem proprietas per eos servos, in quibus usum fructum
habetis vel quos bona fide possidetis, vel per liberam personam,
quae bona fide vobis servit, adquiritur vobis, sed etiam pos-
sessio : loquimur autem in utriusque persona secundum
definitionem, quam proxime exposuimus, id est si quam
possessionem ex re vestra vel ex operibus suis adepti fuerint.
6 Ex his itaque apparet per liberos homines, quos neque iuri

§ 4. A free man bona fide possessed, though he could own, could not
possess, for the latter presupposes a condition in which free actions are
possible, Savigny, Poss. § 9.

Jn Gaius (ii. 94) it is stated as a question whether one can acquire
possession through a slave in whom one has a usufruct ; but it had been
settled in the affirmative by the time of Papinian, on the ground that
though one does not possess him, one does not possess a filiusfamilias
either, Paulus in Dig. 41. 2. i. 8 : presumably the doubt expressed in
Gaius ii. 90 was settled in the same manner. But the limits within which
he could acquire possession for the person who had the usufruct are
fixed, precisely as they are here, by Papinian in Dig. 41. 2. 49. pr., who
explains Gaius' difficulty by remarking that the usufructuary at any rate
has detention of the slave, and detention * borrows jnuch from the law.*

§ 6. A person who was not in our potestas, manus, or mancipium, or
bona fide possessed by, or a slave in usufruct to, us, was called an
^ranea persona: and the earlier Roman law, so far from allowing a
man to acquire ownership through such sin outsider to him, would not

Tit. 9,] PER QUAS PERSONAS NOBIS ADQUIRITUR. 1245

vestro subiectos habetis neque bona fide possidetis, item per
alienos servos, in quibus neque usum fructum habetis neqiie
iustam possessionem, nulla ex causa vobis adquiri posse, et
hoc est quod dicitur, per extratieam personam nihil adquiri
posse: excepto eo, quod per liberam personam veluti per
procuratorem placet non solum scientibus, sed etiam igno-
rantibus vobis adquiri possessionem secundum divi Severi
constitutionem et per banc possessionem etiam dominium, si
dominus fuit qui tradidit, vel usucapionem aut longi temporis
praescriptionem, si dominus non sit.

Hactenus tantisper admonuisse sufficiat, quemadmodum 6
singulae res adquiruntur: nam legatorum ius, quo et ipso

hear of his so acquiring even possession, the old maxim being ' per ex-
traneam personam nihil adquiri potest.' Such extraneae personae had
always been able to retain for a man a possession which he had validly
got for himself: and it would seem that soon after the establishment of
the empire (Dig. 41. 2. 51) it was Attempted by an extension of the
principle to break down the old rule as to the original acquisition of
possession, and thus to get over the necessity of a double traditio. Labeo
seems by implicadon (Dig. loc cit.) to have favoured the proposed inno-
vation, which was also approved by Javolenus. Neratius, writing under
Trajan, says *per procuratorem possessionem adipisci nos tarn fere con-^
veniV Dig. 41. 3. 41 : Gaius (ii. 95) refers to the controversy as still
unsettled : but Paulus (sent, rec 5. 2. 2), Ulpian (Dig. 41. i. 20. 2), and
Modestinus (lb. 53), assert the new doctrine as though in their day it was
completely and universally recognised. Thus tl^e constitution of Severus
(Cod. 7. 32. i) alluded to in the text did not make new law, but was merely
a statutory confirmation of a principle already sufficiently established by
juristic consensus, as indeed its terms themselves allow. Its importance
was that, in respect of all objects in which ownership could be transferred
by mere traditio, even ownership could be acquired for one by an extranea
persona : ' ea quae civiliter adquiruntur per eos, qui in potestate nostra
sunt, adquirimus, veluti stipulationem (mancipationem ?) ; quod natural-
iter adquiritur, sicuti est possessio, per quemlibet volentibus nobis pos-
sidere adquirimus* (Modestinus in Dig. 41. i. 53): 'placet per liberam
personam omnium rerum possessionem quaeri posse et per hanc domi-
nium,' Ulpian in Dig. 41. i. 20. 2. When, as under Justinian, traditio
was the universal mode of transferring dominium in res corporales,
delivery of possession to one's agent, if the transferor was owner, was
delivery of ownership to oneself: if he was not, all that one got was pos-
session, which, however, usucapio could convert into ownership: but
usucapio did not begin to run until the acquisition of possession by the
agent was made known to the principal. Cod. 7. 32. i.
§ 6. Justinian now proceeds to discuss universal successions, or the

246 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

singnlae res vobis adquiruntur, item fideicommissorum, ubi
singulae res vobis relinquuntur, opportunius inferiori loco refere-
mus. videamus itaque nunc, quibus modis per universitatem
res vobis adqiiiruntur. si cui ergo heredes facti sitis sive cuius
bonorum possessionem petieritis vel si quern adrogaveritis vel
si cuius bona libertatum conservandarum causa vobis addicta
fuerint, eius res omnes ad vos transeunt ac prius de here-
ditatibus dispiciamus. quarum duplex condicio est : nam vel
ex testamento vel ab intestato ad vos pertinent, et prius est,

modes in which a nuui's entire proprietary relations — his property and
his rights and liabilities, so far as they are not purely personal— pass
uno ictu to another, or others viewed collectively. Four such modes
are here enumerated, but far the most important of them are hereditas
and bonorum possessio, which are treated together and practically form
a single institution. Their problem is this:-— When a man dies, what
becomes of his property, and who, if any one, becomes answerable for
his liabilities ?

According to the Roman view, as soon as a man died his proprietary
relations assumed a separate, independent, and collective existence : his
universitas inris became specifically an hereditas, belonging, in many
cases, as yet to no one, and as it were perpetuating the existence of the
deceased: 'res hereditariae, antequam aliquis heres existat, nuUius in
bonis sunt ' Dig. i. 8. i. pr. It became, in fact, a juristic person, as capable,
in many respects, of acquiring rights and incurring liabilities as a natural
person : ' hereditas non heredis personam sed defunct! sustinet, ut multis
argumentis iuris civilis comprobatum est' Dig. 41. i. 34: 'mortuo reo
promittendi et ante aditam hereditatem fideiussor accipi potest, quia
hereditas personae vice fungitur, sicuti municipium et decuria et societas '
Dig. 46. I. 22.

There is no precise resemblance between the Roman heres and the
English heir. The latter is the person who succeeds to such real property
of a deceased person as he has not disposed of by will : the former was
the person who succeeded to the universitas iuris of a deceased, whether
under a will or an intestacy : and succeeding as he did to the universitas
iuris, there was necessarily no more distinction between reality and per-
sonalty than between rights and liabilities.

Until the hereditas had vested in an heir or heirs, and so lost its inde-
pendent existence, it remained a persona under the name of hereditas
iacens. In the heir or heirs, taken collectively, it can vest only as a
whole : until it has so vested, the rights and liabilities of which it consists
are inseparable. Where there is no will, this is not difficult to realise
even to a mind habituated to the English distinction between realty and
personalty : but even where there was a will, the testator could not begin
by saying ' I bequeath so and so to A :' he must first give it to the heir
or heirs, as a part of the aggregate universitas, and chaige them to give

Tit. 9.] PER QUAS PERSONAS NOBIS ADQUIRITUR. 1247

ut de his dispiciamus, quae vobis ex testamento obveniunt.
qua in re necessarium est initio de ordinandis testamentis
exponere.

it to the intended legatee. Universality of succession is thus the prime
characteristic of the Roman law of inheritance : * nihil est aliud hereditas,
quam successio in universum ius, quod defunctus habuit' Dig. 50. 16. 24.

The answer to the question, to whom the hereditas belongs, or who
is entitled to become heres, depends upon the further question, whether
the deceased has left behind him a valid testament. There is reason
to believe that at one time wills were unknown in Roman law: that
when a man died, his universitas iuris devolved on a person or persons
by rules rigidly prescribed by law, which he had no power to alter or
override. But the testamentary power, when once admitted, was very
generally exercised : which will perhaps account for its being treated first
by both Gains and Justinian. The two modes of succession are mutually
exclusive. If a man made a will, all his property (unless he were a
soldier) must perforce go to the heir or heirs therein instituted, even
though expressly instituted to certain portions of it only: there was
nothing left for the rules of intestate succession to operate on, or to go to
the person or persons who would have succeeded him had he died in-
testate: 'neque enim idem ex parte testatus et ex parte intestatus de-
cedere potest, nisi sit miles' Tit. 14. 5 inf. : cf. Cicero, de invent. 2. 21.

Two other technical terms require a brief explanation. In some cases
the law cast the inheritance upon a person or persons whether they
wished it or not, Tit. 19. i and 2 inf. : immediately upon a man's decease
they became heirs ipso factOy and could in no way at law disencumber
themselves of the legal rights and duties, taken in the aggregate, which
that character imposed upon tSiem. But in other cases (Tit 19. 5 inf.) no
one became heres immediately, though some one (or more) was entitled
to become so if he pleased : here, as soon as it was known who was the
person so entitled, the hereditas was said to be ' delata ' to him : delatio
is the right actually to become heir : ^ delata hereditas intellegitur, quam
quis possit adeundo consequi' Dig. 50. 16. 1 5 1. If, after consideration,
he decides that the inheritance is worth taking, delatio is followed by
aditio (Tit. 19. 5 and 7 inf.), actual acceptance of the succession. First
comes the death ; then delatio'; and finally, after a greater or less interval,
aditio. But, whether the law makes one heir nolens volens, or whether
one deliberately accepts the inheritance after fully weighing its advan-
tages and disadvantages, one cannot get rid of the character of heres,
with all its liabilities, when one has once been invested with it : ' semel
heres, semper heres.' How far this principle, as well as the other already
cited super, from Tit. 14. 5, had been modified at the end of Justinian's
legislative work will appear from the following Titles.

tl48 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

X.

DE TESTAMENTIS ORDINANDIS,

Testamentum ex eo appellatur, quod testatio mentis est.

1 Sed ut nihil antiquitatis penitus ignoretur, sciendum est
olim quidem duo genera testamentorum in usu fuisse, quorum
altero in pace et in otio utebantur, quod calatis comitiis
appellabatur, altero, cum in proelium exituri essent, quod
procinctum dicebatur. accessit deinde tertium genus testa-
mentorum, quod dicebatur per aes et libram, scilicet quia per
emancipationem, id est imaginariam quandam venditionem,
agebatur quinque testibus et libripende civibus Romanis
puberibus praesentibus et eo qui familiae emptor dicebatur.
sed ilia quidem priora duo genera testamentorum ex veteribus
temporibus in desuetudinem abierunt : quod vero per aes et
libram fiebat, licet diutius permansit, attamen partim et hoc
in usu esse desiit. Sed praedicta quidem nomina testamen-

2 torum ad ius civile referebantun postea vero ex edicto prae-
toris alia forma faciendorum testamentorum introducta est:

Tit. X. § 1. The two earliest forms of wills were in reality legislative
acts of the whole populus, either peaceably assembled in the comitia at
Rome, or when starting for a campaign in the field : Serv. ad Verg. Aen.
vii. 6i2 ; Velleius Paterc. 2. 5 ; Plutarch, Coriol. 9 : for the evidence
hereby afTorded that intestate was older than testamentary succession see
Maine, Ancient Law pp. 199, 200. Both of them may be conjectured to
have been entirely oral. The will made per aes et libram was perhaps
due in origin to the plebeians, who had no locus standi in the comitia
calata, though it must have been largely used by the patricians, owing to
the length of the intervals at which wills could be made in the comitia,
'quae bis in anno testamentis faciendis destinata erant' Gains ii. loi.
When writing came into general use, so that the proceedings need no
longer be entirely oral, it underwent important changes, which are noticed
by Gains, ii. 103-108, and alluded to here by Justinian (partim in usu
esse desiit), in particular acquiring the property of secrecy. The will in
procinctu, common a few years before the conquest of Numantia, Velleius
Paterc. 2. 5, was obsolete in the time of Cicero, de nat. deor. 2. 3.

§ 2. The praetorian will, as it is usually called, was really no will at all :
for a will is a disposition of the civil law, bestowing the hereditas, and
the person taking under it is heres. It grew out of the irksomeness of the
formalities required in the will per aes et libram, and of the grave injustice
which must frequently have resulted from the avoidance of wills through
trivial defects of form, which eventually induced the praetors to uphold

Tiu 10.] DE TESTAMENTIS ORDINANDIS. 249

iure enim ho'norario nulla emancipatio desiderabatur, sed
septem testium signa sufficiebant, cum iure civili signa testium
non erant necessaria. Sed cum paulatim tarn ex usu homi- 3
num quam ex constitutionum emendationibus coepit in unam
consonantiam ius civile et praetorium iungi, constitutum est,
ut uno eodemque tempore, quod ius civile quodammodo
exigebat, septem testibus adhibitis et subscriptione testium,
quod ex constitutionibus inventum est, et ex edicto praetoris

incomplete mancipatory testaments. Regarding form as of value only so
far as it secured evidence, all that they required was that the written
tabulae of the will should be attested by the seals of seven competent
witnesses : (Justinian's remark that sealing had not been necessajy by
the civil law seems contradicted by Cicero (in Verr. 2. i. 45), who says y
that the edict required * tabulas testament! obsignatas non minus multis
signis quam e lege oportet '). How far, and in what sense, such dis-
positions were upheld is deserving of careful notice, for nothing affords
a more instructive or characteristic illustration of the mode in which the.
praetorian law modified and supplemented the old ius civile. By the
latter, such an instrument as a mere written document, no matter by how
many witnesses attested, had absolutely no validity whatever for the
purpose intended. Nor had the praetor authority to enact that it should
avail to pass the hereditas, or that the person named in it as heir should
^e heir : ' quos autem praetor vocat ad hereditatem, hi heredes ipso quidem
iure non fiunt: nam praetor heredes facere non potest' Gains iii. 32,
Tit. 9. 2 inf., Ulpian, reg. 28. 12. What he could, and did, do was to ,
say that if the person named as heir in the informal will applied to him,
he would award him the bonorum possessio (i. e. bonitarian ownership.
Gains iii. 80) on condition of his executing the directions therein con-
tained, and would protect him in that possession by special remedies
until usucapio had converted it into ownership : the bonorum possessor
'loco heredis constituitur ' Gains, loc. cit. : he is ' velut heres' Dig. 5. 5. i.
Gains tells us (ii. 119) that the praetor would not uphold such a will in "^
favour of an extraneous person instituted therein if any one entitled ab
intestato 'legitimo iure' insisted on his strict legal rights. His illustra-
tions of such persons are all agnates; and the question arises, what if a
suus heres of the testator put forward such a claim ? If he were not dis- ^'
inherited nominatim in the will, it is obvious that the praetor would hold
it void : if he were, it would seem that he would uphold the will against
him in any case. But by a rescript of M. Aurelius (Gaius ii. 120) the
instituted heir was enabled to repel the claim of the agnate by pleading
exceptio doli, and the praetorian will thus became impregnable. The
gradual development of bonorum possessio into a supplementary scheme
of succession by the side of the hereditas is sketched in an Excursus at
the end of Bk. iii.
§ 8. This is usually called testamentum tripertitum. Theodosius II

a50 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

signacula testamentis imponerentur : ut hoc ius tripertitum
esse videatur, ut testes quidem et eorum praesentia uno con-
textu testament! celebrandi gratia a iure civili descendant,
subscriptiones autem testatoris et testium ex sacrarum con-
stitutionum observatione adhibeantur, signacula autem et

4 numerus testium ex edicto praetoris. Sed his omnibus ex
nostra constitutione propter testamentorum sinceritatem, ut
nulla fraus adhibeatur, hoc additum est, ut per manum testa-
toris vel testium nomen heredis exprimatur et omnia secundum
illius constitutionis tenorem procedant.

5 Possunt autem testes omnes et uno anulo signare testamen-
tum (quid enim, si septem anuli una sculptura fuerint?) se-
cundum quod Pomponio visum est. sed et alieno quoque

6 anulo licet signare. Testes autem adhiberi possunt ii, cum
quibus testamenti factio est. sed neque mulier neque impubes
neque servus neque mutus neque surdus neque furiosus nee

(Cod. 6. 23. 2 1) first required that the witnesses should subscribe as well
as seal the will: the adscriptio or adnotatio mentioned in Dig. 28. i. 22.
4, ib. 30, refers to the practice of the witnesses writing their names under
or near the seal by which the will was fastened in order to facilitate their
attendance when it was opened : Dig. 29. 3. 4-7 ; Paul sent. rec. 4. 6. i.
The same emperor required that the testator must either sign the docu-
ment, or have it signed for him by an eighth witness if unable to write
himself. If, however, the whole will was expressly stated upon its face to
be written by his own hand, his signature was unnecessary (testamentum
holographum, Cod. 6. 23. 28. 6).

§ 4. Justinian subsequently repealed this rule, which is found in Cod.
6. 23. 29, by Nov. 119. 9. A SC. Libonianum of the time of Tiberius had
enacted that if one man wrote out a will for another, any disposition
/ which it contained in his own favour should be void : later an edictum of
Claudius subjected the writer to the penalties of the lex Cornelia de
flEdsis, Bk. iv. 18. 7 inf.

§ 6. Capacity was required in a witness only at the time of the execu-
tion of the will. Testamenti factio means capacity (a) to make a will,
{b) to take under a will either as heir or legatee, {c) as here, to witness
a will ; the common element seems to be the presence of commercium,
for slaves could be instituted or made legatees in virtue of the com-
mercium of their master : o2 otKcrm a9rp<S(raHroi ^irrc^ iK t&p irpoo-oirtty r&u
oiKciW bt<nr6T(»u xapaKnfpiiovrai Theoph. ad iii. 17. pr. inf. The other
classes of persons mentioned in this and the following sections could
not be witnesses on other grounds than want of commercium, except the
interdicted prodigal, *cui commercio interdictum est' Ulpian, reg. 20. 13.
Improbi et intestabiles include, besides the case mentioned in the Twelve

Tiu lo.] DE TESTAMENTIS ORDINANDIS. %^\

cui bonis interdictum est nee is, quern leges iubent improbum
intestabilemque esse, possunt in numero testium adhiberi.
Sed cum aliquis ex testibus tcstamenti quidem faciendi tern- 7
pore liber existimabatur, postea vero servus apparuit, tarn
divus Hadrianus Catonio Vero quam postea divi Severus et
Antoninus rescripserunt subvenire se ex sua liberalitate testa-
mento, ut sic habeatur, atque si ut oportet factum esset, cum
eo tempore, quo testamentum signaretur, omnium consensu
hie testis liberorum loco fuerit nee quisquam esset, qui ei
status quaestionem moveat Pater nee non is, qui in potes- 8
tate eius est, item duo fratres, qui in eiusdem patris potestate
sunt, utrique testes in unum testamentum fieri possunt : quia
nihil nocet ex una domo plures testes alieno negotio adhiberi.
In testibus autem non debet esse qui in potestate testatoris 9
est. sed si filius familias de castrensi peculio post missionem
faciat testamenturii, nee pater eius recte testis adhibetur nee
is qui in potestate eiusdem patris est : reprobatum est enim
in ea re domesticum testimonium. Sed neque heres scriptus 10
neque is qui in potestate eius est neque pater eius qui habet

Tables (* qui sc sierit testarier libripensve fuerit, ni testimonium fariatur,
improbus intestabilisque csto ') convicted libellers and lampooners, Dig.
28. I. 18. 1 ; heretics, Cod. I. 5. 4; and apostates, Cod. i. 7. 4. Persons
convicted of adultery (Dig. 22. 5. 14), and perhaps of repetundae (ib. 15.
pr. : per contra Ulpian in Dig. 28. i. 20. 5) were also prohibited from
being witnesses. Oral testaments only (§ 14 inf.) could be witnessed by
blind persons.

§ 7. This rescript of Hadrian is in Cod. 6. 23. i. Probably its principle
might be extended to other cases of incapacity, on the analogy of Dig. 14.
6. 3. pr. (de SC. Macedoniano) ^ si quis patremfamilias esse credidit non
vana simplidtate deceptus nee iuris ignorantia, sed quia publice pater-
familias plerisque videbatur, sic agebat, sic contrahebat, sic muneribus
fungebatur, cessabit senatusconsultum.'

§ 9. In the mancipatory form of will no witness might be in the potestas
of either the testator or familiae emptor, Gaius ii. 105. The incapacity
of a paterfamilias or any one in his power to witness his own son's will of
castrense peculium, though affirmed by Justinian here after Gaius (ii. 106),
is denied by Ulpian in Dig. 28. i. 20. 2 on the authority of Marcellus.
Probably the two passages relate to different cases : the latter to a will
made by the son as soldier, that before us to one made after discharge.

§ 10. Though by strict law the heir and persons connected with him by
the tie of potestas had not been incompetent to witness (* testamentum
simul obsignavi cum Clodio . . . et ilium heredem et me scripserat ' Cic.

25'i INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

eum in potestate neque fratres qui in eiusdem patris potestate
sunt testes adhiberi possunt, quia totum hoc negotium, quod
agitur testament! ordinandi gratia, creditur hodie inter here-
dem et testatorem agi. licet enim totum ius tale conturbatum
fuerat et veteres, qui familiae emptorem et eos, qui per potes-
tatem ei coadunati fuerant, testamentariis testimoniis repelle-
bant, heredi et his, qui coniuncti ei per potestatem fuerant,
concedebant testimonia in testamentis praestare, licet hi, qui
id permittebant, hoc iure minime abuti debere eos suadebant :
tamen nos eandem observationem corrigentes et, quod ab ilUs
suasum est, in legis necessitatem transferentes ad imitationem
pristini familiae emptoris merito nee heredi, qui imaginem
vetustissimi familiae emptoris optinet, nee aliis personis, quae
ei ut dictum est coniunctae sunt, licentiam concedimus sibi
quodammodo testimonia praestare: ideoque nee eiusmodi

11 veterem constitutionem nostro codici inseri permisimus. Le*
gatariis autem et fideicommissariis, quia non iuris successores
sunt, et aliis personis eis coniunctis testimonium non dene-
gamus, immo in quadam nostra constitutione et hoc specialiter
concessimus, et multo magis his, qui in eorum potestate sunt,
vel qui eos habent in potestate, huiusmodi licentiam damus.

12 Nihil autem interest, testamentum in tabulis an in chartid

13 membranisve vel in alia materia fiat. Sed et unum testa-
mentum pluribus codicibus conficere quis potest, secundum
optinentem tamen observationem omnibus factis. quod inter-
dum et necessarium est, si quis navigaturus et secum ferre et
domi relinquere iudiciorum suorum contestationem velit, vel
propter alias innumerabiles causas,quae humanis necessitatibus

pro Milone i8 : of. Posters Gaius p. 219), it was deemed improper for
them to do so (Gaius ii. 108), and Ulpian expressly affirms their incom-
petence in Dig. 28. 1. 20. pr. It is conjectured that this last passage either
is an interpolation, or relates only to praetorian wills, as Justinian in this
section speaks as if he had made a complete change in excluding the
testimony of these persons.

§ 13. Cf. Suetonius, Octav. loi 'testamentum duobus codicibus scrip-
tum,* and ib. Tiber. 76 * testamentum duplex, eodem exemplo.' For the
necessity of each copy being formally executed see Dig. 37. 1 1. 1. 7 * si . . ,
unum fecerit testator quasi testamentum, aliud quasi exemplum (i.e. a
mere copy, without observance of form) si extat quod exemplum erat,
bonorum possessio peti non potent.'

Tit. II.] DE MILITARI TESTAMENTO. 253

imminent. Sed haec quidem de testamentis, quae in scriptis 14
conficiuntur. si quis autem voluerit sine scriptis ordinare iure
civili testamentum, septem testibus adhibitis et sua voluntate
coram eis nuncupata sciat hoc perfectissimum testamentum
iure civili firmumque constitutum,

XL

DE MILITARI TESTAMENTO.

Supra dicta diligens obseryatio in ordinandis testamentis
militibus propter nimiam imperitiam constitutionibus principa-
libus remissa est, nam quamvis hi neque legitimum numerum
testium adhibuerint neque aliam testamentorum soUemnitatem

§ 14. The purely oral or nuixcupative will here described seems to have
originated with Theodosius II : Cod. 6. 23. 21. 4. The statement in Tit,
II. I. inf., that even civilians could make a will without writing in Trajan's
time, can only refer to one formally executed per aes et libram.

Besides the private forms already noticed, a will might be 'publice
confectum* either (i) by being oblatum by petition to the emperor, Cod.
6. 23. 19, or (2) by a statement of its contents, usually accompanied by a '
copy, being made lo a judge, who entered a minute thereof in the official
acta, Cod. loc. cit. <8.

Tit. XI. pr. The exemption of soldiers from the ordinary requirements
of testamentary form dates from the time of Augustus : Ulp. reg. 2a 10.
A soldier's will (i) if written, did not require to be witnessed at all : dfiaprv-
povt , . . KvpovaSai r^r diard^tts, &<nr€p cirl t&v iv irapard^ti, irmrdurap
&pl(raTo, Nov. Leonis 40, though § i, 'convocatis ad hoc hominibus,'
ipight seem to imply the contrary : (2) if oral, could not stand if thct
alleged heir was the only witness, § I. By the enactment to which he
refers (Cod. 6. 21. 17) Justinian allowed the exercise of this privilege by a
soldier only while he was in camp or barracks on actual service (this
being the meaning of expeditio in the text), not while on furlough : and a
will so executed remained in force only one year after his discharge, § 3
inf., and even lost all validity if the discharge was * with ignominy.*

It was not merely in respect of form that soldiers' wills were privileged.
They were not bound by the rule 'nemo pro parte testatus, pro parte
intestatus decedere potest' Tit. 14. 5 inf., or by the lex Falcidia and
similar enactments relating to iideicommissa : they need not formally
disinherit their children, Tit. 13. 6 inf., nor were their wills avoided by
their undergoing capitis deminutio (§ 5 inf., Dig. 28. 3. 6. 6) : they could
institute as heirs persons who could not inherit from an ordinary testator
(Gaius ii. 1 10), and could dispose of the inheritance by codicils. Dig. 29*
J. 36. pr.

The wills of certain other persons besides soldiers were privileged in

254 INSTITUTIONUM UBRI QUATTUOR. CLft. II.

observaverint, recte nihilo minus testantur, videlicet cum in
expeditionibus occupati sunt : quod merito nostra constitutio
induxit. quoquo enim modo voluntas eius suprema sive
scripta inveniatur sive sine scriptura, valet testamentum ex
voluntate eius. illis autem temporibus, per quae citra expe-
ditionum necessitatem in aliis locis vel in suis sedibus degunt,
minime ad vindicandum tale privilegium adiuvantur: sed
testari quidem et si filii familias sunt propter militiam con-
ceduntur, jure tamen communi, ea observatione et in eorum
testamentis adhibenda, quam et in testamentis paganorum

1 proxime exposuimus. Plane de militum testamentis divus
Traianus Statilio Severo ita rescripsit : * Id privil^ium, quod
militantibus datum est, ut quoque modo facta ab his testa-
menta rata sint, sic intellegi debet, ut utique prius constare
debeat testamentum factum esse, quod et sine scriptura a non
militantibus quoque fieri potest, is ergo miles, de cuius bonis
apud te quaeritur, si convocatis ad hoc hominibus, ut volun-
tatem suam testaretur, ita locutus est, ut declararet, quern
vellet sibi esse heredem et cui libertatem tribuere, potest
videri sine scripto hoc modo esse testatus et voluntas eius rata
habenda est. ceterum si, ut plerumque sermonibus fieri solet,
dixit alicui : * ego te heredem facio ' aut ' tibi bona mea
relinquo/ non oportet hoc pro testament© observari. nee
uUorum magis interest quam ipsorum, quibus id privilegium
datum est, eiusmodi exemplum non admitti : alioquin non
difiiculter post mortem alicuius militis testes existerent, qui
adfirmarent se audisse dicentem aliquem relinquere se bona,

2 cui visum sit, et per hoc indicia vera subvertantur.' Quin
immo et mutus et surdus miles testamentum facere possunt.

the matter of form. By an enactment of Justinian the general law might
in rural districts be overridden by local custom, and signature by the wit-
nesses was dispensed with if it was difficult to find seven who could write,
and even five were held enough if more could not be got. Cod. 6. 23. 31.
Where a man disposed of his property solely in favour of his own de-
" scendants, his will, if written, need not be attested (* testamentum paren-
tium inter liberos' Nov. 107. i).

§ 2. By Cod. 6. 22. 10 all deaf or dumb people who could speak or
write were enabled to make a will. Perhaps the text means that a
soldier who was deaf or dumb might do so even by signs : for analogies
cf. Dig. 29. I. 15. I ; 29. 7. 8. 4 ; 32. 21. pr.

Tit. 12J QUIBUS NON EST PERMISSUM, ETC. 2^5

Sed hactenus hoc illis a principalibus constitutionibus conce- 3
ditur, quatenus militant et in castris d^unt : post missionem
vero veterani vei extra castra si faciant adhuc militantes tes-
tamentum, communi omnium civium Romanorum iure facere
debent. et quod in castris fecerint testamentum non com-
muni iure, sed quomodo voluerint, post missionem intra
annum tantum valebit. quid igitur, si intra annum quidem
decesserit, condicio autem heredi adscripta post annum exti-
terit ? an quasi militis testamentum valeat ? et placet valere
quasi militis. Sed et si quis ante militiam non iure fecit testa- 4
mentiun et miles factus et in expeditione degens resignavit
illud et quaedam adiecit sive detraxit vel alias mantfesta est
militis voluntas hoc valere volentis, dicendum est valere testa-
mentum quasi ex nova militis voluntate. Denique et si in 5
adrogationem datus fuerit miles vel filius familias emancipatus
est, testamentum eius quasi militis ex nova voluntate valet nee
videtur capitis deminutione irritum fieri.

Sciendum tamen est, quod ad exemplum castrensis peculii 6
tarn anteriores leges quam principales constitutiones quibus-
dam quasi castrensia dederunt peculia, quorum quibusdam
' permissum erat etiam in potestate d^entibus testari. quod
nostra constitutio latius extendens permisit omnibus in his
tantummodo pcculiis testari quidem, sed iure communi : cuius
constitutionis tenore perspecto licentia est nihil eorum quae
ad praefatum ius pertinent ignorare.

XII.

QUIBUS NON EST PERMISSUM TESTAMENTA FACERE.

Non tamen omnibus licet facere testamentum. statim enim
hi, qui alieno iuri subiecti sunt, testamenti faciendi ius non
habent, adeo quidem ut, quamvis parentes eis permiserint,
nihilo magis iure testari possint: exceptis his quos antea
enumeravimus et praecipue militibus qui in potestate paren-
tum sunt, quibus de eo quod in castris adquisierint permissum
est ex constitutionibus principum testamentum facere. quod

Tit. XH. So far as commercium is an element in the capacity to make
a valid will (testamenti factio activa) it was (except in the case of the

256 tNSTITVTIONUM LIBRI QUATTUOR. [Lib. II.

quidem initio tantum militantibus datum est tam ex auctori-
tate divi August! quam Nervae nee non optimi imperatoris
Traiani, postea vero subscriptione divi Hadrian! etiam dimissis
militia, id edt veteranis, concessiim est. itaque si quidem
fecerint de castrensi peculio testamentum, pertinebit hoc ad
eum quern heredem reliquerint : si vero intestati decesserint
nullis liberis vel ftatribus superstitibus, ad parentes eorum
iure communi pertinebit. ex hoc intelligere possumus, quod
in castris adquisierit miles, qui in potestate patris est, neque
ipsum patrem adimere posse neque patris creditores id vendere
vel aliter inquietare neque patre mortuo cum fratribus esse
commune, sed scilicet proprium eius esse id quod in castris
adquisierit, quamquam iure civili omnium qui in potestate
parentum sunt peculia perinde in bonis parentum computan-
tur, acsi servorum peculia in bonis dominorum numerantur ;
exceptis videlicet his, quae ex sacris constitutionibus et prae-
cipue nostris propter diversas causas non adquiruntur. praeter
hos igitur, qui castrense peculium vel quasi castrense habent,
si quis alius filius familias testamentum fecerit, inutile est, licet

prodigus, § 2 inf.) required to exist both at the time of execution and at
that of the testator's decease. If at any moment between these two
dates he lost it, the will, iure civili, became void, except in the case of
capture in war, § 5 inf. : and a will invalidated by the testator's undergoing
capitis deminutio minima might be upheld by the praetor: see on Tit 17.
6 inf. : cf. Gaius ii. 147, Ulpian, reg. 23. 6. : Dig. 37. 11. i. 8.

The requirement of commercium excluded (i) slaves, though a servus
populi Roman! might make a will of half his peculium, Ulpian, reg. 20.
16. (2) The interdicted prodigal, § 2 inf., see note on Tit 10. 6 supr. (3)
The citizen in captivity, § 5 inf. (4) Peregrini, including dediticii ; if,
however, an alien belonged to a determinate state, he could make a valid
will according to its laws, Ulpian, reg. 20. 14. A citizen who was con-
victed on a capital charge either became a slave, or underwent capitis
deminutio media, whereby he became a peregrinus: but not belonging
to any particular state he could not make a will of any kind, Dig. 28. i»
8. 6. Latini luniani were disqualified by the lex lunia Norbana, Gaius
i. 23, Ulpian, reg. 20. 14 ; see p. 119 supr. : for the testamentary capacity
of women see p. 150 supr.

A will of castrense peculium, unless executed while the testator was
on actual service, was not exempted from any of the ordinary require-
ments of form. For subscriptio [Hadriani] see p. 106 supr., and for
the succession to peculium castrense on intestacy note on Bk. iii. i.
15 inf. Of peculium adventitium a filiusfamilias could in no case dis-

Tit. la.] QUIBUS NON EST PERMISSUM, ETC. 2^7

suae potestatis factus decesserit. Praeterea testamentum 1
facere non possunt impuberes, quia nullum eorum animi
iudicium est: item furiosi, quia mente carent. nee ad rem
pertinet, si impubes postea pubes factus aut furiosus postea
compos mentis factus fuerit et decesserit. furiosi autem si
per id tempus fecerint testamentum, quo furor eorum inter-
missus est, iure testati esse videntur, certe eo quod ante furo-
rem fecerint testamento valente : nam neque testamenta recte
facta neque aliud ullum negotium recte gestum postea furor
interveniens peremit. Item prodigus, cui bonorem suorum 2
administratio interdicta est, testamentum facere non potest,
sed id quod ante fecerit, quam interdictio ei bonorum fiat,
ratum est Item mutus et surdus non semper facere testa- 3
mentum possunt. utique autem de eo surdo loquimur, qui
omnino non exaudit, non qui tarde exaudit : nam et mutus is
intellegitur, qui eloqui nihil potest, non qui tarde loquitur,
saepe autem etiam litterati et eruditi homines variis casibus et
audiendi et loquendi facultatem amittunt : unde nostra con-
stitutio etiam his subvenit, ut certis casibus et modis secundum
normam eius possint testari aliaque facere quae eis permissa
sunt, sed si quis post testamentum factum valetudine aut
quolibet alio casu mutus aut surdus esse coeperit, ratum nihilo
minus eius remanet testamentum. Caecus autem non potest 4
facere testamentum nisi per observationem, quam lex divi

pose by will, even with his pater's consent (Dig. 28. i, 6. pr.) ; nor make
gifts from it mortis caasa, which, however, he could do from peculium
profectitium with his father's sanction, Dig. 39. 5. 7. 4 ; 39- 6. 25. i.

§ L The reason of the fririosus' inability to make a will (quia mente
caret) is, perhaps, an allusion to the definition of testamentum as testatio
mentis, Tit. 10. pr. supr. Whether he could do so in a lucid moment had
at one time been disputed. Cod. 6. 22. 9.

§ 8. Deaf or dumb persons had been altogether unable to make a will
per aes et libram, the former, * quoniam verba familiae emptoris exaudire
non potest,' the latter, 'quoniam verba nuncupationis loqui non potest'
Ulpian, reg. 20. 13. By Cod. 6. 22. 10 Justinian removed the incapacity,^
save from those who were deaf and dumb from birth (except perhaps
soldiers. Tit. 11. 2 supr.), but he required those who were dumb to write
their own wills throughout.

§ 4. The execution of a blind man's will required the presence of a
notary, or, if one could not be procured, of an additional witness, and
all eight had to sign and seal the testament, Cod. 6. 22. 8.

S

^58 INSTITUTIONUM LIBRI QUATTUOR. [Lib. lU

5 lustini patris mei introduxit. Eius, qui apud hostes est, testa-
mentum quod ibi fecit non valet, quamvis redierit : sed quod
dum in civitate fuerat fecit, sive redierit, valet lure postliminii,
sive iJlic decesserit, valet ex lege Cornelia.

XIIL

DE EXHEREDATIONE LIBERORUM.

Non tamen, ut omnimodo yaleat testamentum, sufficit haec
observatio, quam supra exposuimus. sed qui filium in po-
testate habet, curare debet, ut eum heredem instituat vel
exheredem nominatim fadat: alioquin si eum silentio prae-
terierit, inutiliter testabitur, adeo quidem ut, etsi vivo patre
filius mortuus sit, nemo ex eo testamento heres existere pos-*

§ 6. The will of a civis who was taken captive by the enemy was
avoided by his capitis deminutio maxima unless rehabilitated by post-
liminium (note on Bk. i. 12. 5 supr.) ; if he died apud hostes he must
needs die intestate. This was remedied in a somewhat curious manner
. by the lex Cornelia de falsis (circ. B.C. 81, Bk. iv. 18. 7 inf ), which imposed
penalties on those who forged wills of prisoners who died in captivity,
i. e. who produced a forged will which they pretended had been executed
by the deceased prior to his capture. From this it was inferred that,
had such a will been actually so executed, the law would not have treated
it as void ; it could not have stultified itself by penalising the forgery of
an instrument which, ex hypothesiy could have no legal effect whatever
(fictio legis Comeliae) : *• lege Cornelia testamenta eorum, qui in hostium
potestate decesserunt, perinde confirmantur ac si hi, qui ea fecissent,
in hostium potestatem non pervenissent ' Dig. 28. i. 12. The principle
of the fiction was subsequently extended to all rights and dispositions
whatever, ^ in omnibus partibus iuns is, qui reversus non est ab hostibus^
quasi tunc decessisse videtur, cum captus esset' Dig. 49. 15. 18.

Tit. XIII. Having ascertained who can make wills (Tit. 12) and in
what necessary form, if any, they must be expressed (Tits. 10 and 11),
Justinian proceeds to their necessary or most usual contents, viz. exhere-»
dations (Tit. 13), the institution of the heir or heirs (Tit. 14), and substi-
tutions (Tits. 15 and 16).

The practice of exheredation based on the patria potestas, § 7, is
peculiarly Roman, and a dear survival of the old joint ownership of pro-
perty by family groups, Gains ii. 157, Dig. 28. 2. 11, Tit. 19. 2 inf. The
Roman law regarded certain of a man's relations as having so strong a
claim to succeed to his property, that it required him, if he wished eifecr
tually to exclude them, to disinherit them in his will ; not, as we should,
by simply not mentioning them at all, but by explicitly stating his desire
that they should not be his heirs. Merely to pass them over, without

Tit. 13.] DE EXHEREDATIONE LIBERORUM.. 259

sit, quia scilicet ab initio non constiterit testamentum. sed
non ita de filiabus vel aliis per virilem sexum descendentibus
liberis utriusque sexus fuerat antiquitati observatum : sed si
non fuerant heredes scripti scriptaeve vel exheredati exhere-*
dataeve, testamentum quidem non infirmabatur, ius autem
adcrescendi eis ad certam portionem praestabatur. sed nee
nominatim eas personas exheredare parentibus necesse erat,
sed licebat et inter ceteros hoc facere.

either instituting them heirs or expressly disinheriting them, did not ex-
clude them at all ; it simply avoided the will, either in whole, or in parti
What classes of relations the civil and the praetorian law respectively
required should be thus disinherited, the forms by which exheredation
was effected, and the final changes made in this department by Justinian,
appear in this Title.

Whether a will was void, in which a filiusfamilias of the first degree,
who died after its execution in the testator's lifetime, was praeteritus or
not disinherited in proper form, had been a question between the two
schools of jurists. The Sabinians, whose opinion Justinian here con-
firms, pronounced it void ab initio ; the Proculians held that it was void
only if the son in question outlived the testator, Gaius ii. 123.

Sui in the first degree, i. e. the testator's own sons, natural or adoptive,
if in his power at the time of the execution of the will (see Tit. 19.
2 inf.), were required by the civil law to be disinherited nominatim, in the
form given in this section. As regards all sui and suae except sons, the
civil law was satisfied if, in default of institution, they were disinherited
by a general clause (*ceteri exheredes sunto' Gaius ii. 128, which, if Jus-
tinian in Cod. 6. 28. 42 is to be believed, would originally be enough for
sons as well). The civil law effect of pretermitting these was not (as in
the case of a son) to avoid the will, but merely to entitle them to a share
in the succession varying with the character of the instituted heir or heirs.
If these were sui, the praeteriti took share and share alike with them
(adcrescunt in virilem portionem) ; if extranei (Tit. 19. 3 inf.) they were
entitled to half the inheritance ; for illustrations see Gaius ii. 124. An ex-
traneus, however, who was instituted heir in a will in which such persons
were praeteriti, was more hardly treated by the praetor, who gave the
praeteriti bonorum possessio. (contra tabulas) of the whole, *qua ratione
extranei heredes a tota hereditate repelluntur' Gaius ii. 125; but a re-
script of M. Aurelius again curtailed the rights of suae praeteritae by
enacting that they should in no case take more by bonorum possessio
contra tabulas than they would have taken by the ius adcrescendi of the
civil law (ib. 126); the effect of this was to augment the rights of pre-
termitted sui not in the first degree (e. g. grandsons).

The praetor, not satisfied with the civil law rules of exheredation in
respect of persons in the testator's power, required all sui— grandsons,
greatgrandsons, etc., no less than sons, to be disinherited nominatim, pro-

S 2

a6o INSTITUTIONUM UBRI QUATTUOR. [Lib. II.

1 Nominatim autem exheredari quis videtur, sive ita exhere-
detur *Titius filius meus exheres esto/ sive ita *filius meus
exheres esto' non adiecto proprio nomine, scilicet si alius
filius non extet. postumi quoque liberi vel heredes institui
debent vel exheredari. et in eo par omnium condicio est,
quod et in filio postumo et in quolibet ex ceteris liberis sive
feminini sexus sive masculini praeterito valet quidem testa-
mentum, sed postea adgnatione postumi sive postumae
rumpitur et ea ratione totum infirmatur: ideoque si mulier,

mising them in default bonorum possessio contra tabulas (Gaius ii. 129) ;
according to which, though the will remained formally valid, the inherit-
ance was divided among all the sui, whether instituted or not disinherited
nominatim, as under the rules of intestacy, Dig. 37. 4. i. i. To sum-
/ marise what has been said — unless instituted

(i) Sui filii must be disinherited nominatim ; else the will is void, and
the man dies intestate.

(2) Other sui may (a) iure civili be disinherited inter ceteros ; in de-
fault, they are entitled either to the ius adcrescendi or to half the inherit-
ance ; (b) iure praetorio, they must be disinherited nominatim ; in default,
if the institutus is extraneus, they can get bonorum possessio of the whole;
as against instituted sui they are entitled to have the bona distributed
' tanquam intestatus decessisset.'

(3) Suae of whatever grade may be disinherited by a general clause :
in default (a) iure civili, the will is not void, but they are entitled to
the ius adcrescendi ; {b) iure praetorio, they could claim bonorum pos-
sessio of the whole against an extraneus heres until the rescript of
M. Aurelius, when the older law (by which they got half) was in effect
restored.

§ L Speaking generally, a postumus is a person who is bom after
the niaking of a will : postumi sui are those persons who come under the
immediate (Tit. 19. 2 inf.) power of the testator after the execution of the
will, or would have done so, if he had not died first. Thus they com-
prise (i) postumi sui proper, the testator's own children, sons and
daughters, born after the execution of the will, who become sui by the
mere fact of birth ; (2) persons postumorum suorum loco, i. e. (a) those
adopted or adrogated, and children legitimated by the testator after
making the will, Gaius ii. 138, Tit. 17. i inf., Ulpian, reg. 23. 3 ; {b) filii-
familias or filiaefamilias who become sui by ' successio in suorum heredum
locum' as described in Gaius ii. 133, and § 2 inf. ; and {c) the child who
fell under the immediate power and so became suus heres of his soldier
father by the death of the grandfather in whose power both of them had
previously been : he is postumus in relation to his father*s will of
castrense peculium made while a filiusfamilias. Dig. 28. 2. 28. i.

Postumi were ' incertae personae ' (Tit. 20. 25 inf.), Gaius ii. 242, and
therefore by the old law could be neither instituted heirs nor disinherited,

TH. 13.] DE EXHEREDATIONE UBERORUM. a6l

ex qua postumus aut postuma sperabatur, abortum fecerit,
nihil impedimento est scriptis heredibus ad hereditatem ade-^
undam. sed feminini quidem sexus personae vel nominatim
vel inter ceteros exheredari solebant, dum tamen, si inter
ceteros exheredentur, aliquid eis legetur, ne videantur per
oblivionem praeteritae esse^ masculos vero postumos, id e;5t
filium et deinceps, placuit non aliter recte exheredari, nisi
nominatim exheredentur, hoc scilicet modo : ' quicumque mihi
filius genitus fuerit, exheres esto.' Postumorum autem loco 2
sunt et hi, qui in sui heredis locum succedendo quasi adgna-
scendo fiunt parentibus sui heredes. ut ecce si quis filium et
ex eo nepotem neptemve in potestate habeat, quia filius gradu
praecedit, is solus iura sui heredis habet, quamvis nepos quo-
que et neptis ex eo in eadem potestate sunt : sed si filius eius
vivo eo moriatur aut qualibet alia ratione exeat de potestate
eius, incipit nepos neptisve in eius locum succedere et eo modo
iura suorum heredum quasi adgnatione nanciscuntur. ne ergo
eo modo rumpatur eius testamentum, sicut ipsum filium vel
heredem instituere vel nominatim exheredare debet testator,
ne non iure faciat testamentum,, ita et nepotem neptemve ex
filio necesse est ei vel heredem instituere vel exheredare, ne

Ulpian, reg. 22. 4: consequently, if they were sui, the will necessarily
became void. It was only by very gradual steps that it became possible
to institute or disinherit postumi sui. In the most pressing case, viz.
where a postumus suus was bom after the testator's decease, so that
he could not mend matters by executing a fresh will—the civil law itself
tolerably early permitted his institution or exheredation, Ulpian, reg.
22. 19. Doubtless the rule was the same in respect of a grandchild in
utero whose father was no longer in the testator's power at the time of
the making of the will, though he had been when the child was con-
ceived. Eventually testators were enabled to institute or disinherit i
all grandchildren postumi sui, partly under a formula introduced by
Gallus Aquilius, Cicero's colleague in the praetorship, Dig. 28. 2. 29. pr.,
partly under the lex lunia Velleia, A.D. 9, mentioned in § 2 infl : and
partly on the authority of the jurist Salvius Julianus : see Poste's Gaius
pp. 236-7.

For those who were in postumorum loco by adrogation or adoption
the law was not so simple. Gaius says (ii. 138-140) that a will was
avoided by the subsequent adoption of a suus heres, even if the latter
was instituted heir in it : but this doctrine was disputed by Scaevola
(Dig. 28. 3. 18) and Papinian (Dig. 28. 2. 23. i), whose view was adopted
by Justinian. On the other hand, if an extraneus was disinherited in a

262 tNSTITUTIONUM UBRI QUATTUOR. [Lib.ir.

forte vivo eo filio mortuo, succedendo in locum eius nepos
neptisve quasi adgnatione rumpant testamentum. idque lege
lunia Velleia provisum est, in qua simul exheredationis modus

3 ad similitudinem postumorum demonstratur. Emancipatos
liberos lure civili neque heredes instituere neque exheredare
necesse est, quia non sunt sui heredes. sed praetor omnes
tarn feminini quam masculini sexus, si heredes non instituan-
tur, exheredari iubet, virilis sexus nominatim, feminini vero et
inter ceteros. quodsi neque heredes instituti fuerint neque ita
ut diximus exheredati, promittit praetor eis contra tabulas

4 testamenti bonorum possessionem. Adoptivi liberi quamdiu
sunt in potestate patris adoptivi, eiusdem iuris habentur, cuius
sunt iustis nuptiis quaesiti : itaque heredes instituendi vel ex-
heredandi sunt secundum ea quae de naturalibus exposuimus :
emancipati vero a patre adoptivo neque iure civili neque
quod ad edictum praetoris attinet inter liberos numerantur.
qua ratione accidit, ut ex diverso quod ad naturalem paren-
tem attinet, quamdiu quidem sint in adoptiva familia, extra-
neorum numero habeantur, ut eos neque heredes instituere
neque exheredare necesse sit: cum vero emancipati fuerint
ab adoptivo patre, tunc incipiant in ea causa esse, in qua
futuri essent, si ab ipso naturali patre emancipati fuissent.

'Will, and then was subsequently adopted or adrogated by the testator, the
will was always avoided. Dig. 37. 4. 8. 8 ('exheredatio res in extraneo
inepta est '). The only exception to this was where a son who had been
emancipated or given in adoption was disinherited, and subsequently
adrogated or readopted by his own natural father, the testator, Dig. 28.
2. 23. pr. Probably the same rule applied to the postumus suus by
legitimation.

If the son of a filiusfamilias who had made a will of castrense pecu-
lium was not therein instituted or disinherited, and then became suus
heres by the grandfather's death, the will was avoided. Dig. 28. 2. 28. i.

In Ulpian's time it was not established that all male postumi sui must
be disinherited nominatim, though he says (reg. 22. 22) that if one in a
remoter degree than the first was disinherited inter ceteros, it was neces-
sary to give him a legacy for the same reason alleged in this section, in
respect of postumae suae: but he adds, sed tutius est nominatim eos
exheredari, et id observatur magis.

§ 3. By liberi in this section is not meant all the testator's descendants,
but only those who, had he died intestate, would have been entitled to
succeed him by the clause in the edict 'unde liberi/ see Bk. iii. 9. 3.
and notes, vdL

Tit. 13J DE EXHEREDATIONE LIBERORUM. 263

Sed haec vetustas introducebat. nostra vero constitutio intet 5
masculos et feminas in hoc iure nihil interesse existimans,
quia utraque persona in hominum procreatione similiter naturae
officio fungitur et lege antiqua duodecim tabularum omnes
similiter ad successiones ab intestato vocabantur, quod et
praetores postea secuti esse videntur, ideo simplex ac simile ius
et in filiis et in filiabus et in ceteris descendentibus per virilem
sexum personis non solum natis, sed etiam postumis intro-
duxit, ut omnes, sive sui sive emancipati sunt, et nominatim
exheredentur et eundem habeant effectum circa testamenta
parentum suorum infirmanda et hereditatem auferendam, quem
filii sui vel emancipati habent, sive iam nati sunt sive adhuc in
utero constituti postea nati sunt, circa adoptivos autem cer-
tam induximus divisionem, quae constitutione nostra, quam
super adoptivis tulimus, continetur. Sed si expeditione oc-6
cupatus miles testamentum faciat et liberos suos iam natos vel
postumos nominatim non exheredaverit, sed silentio prae-
terierit non ignorans, an habeat liberos, silentium eius pro
exheredatione nominatim facta valere constitutionibus prin-
cipum cautum est. Mater vel avus maternus necesse non 7

§ 6. By the constitution to which he refers (Cod. 6. 28. 4) Justinian
required all descendants, whom before it had been necessary to disin-
herit at all, to be in future either instituted, or disinherited nominatim.
In default, if the pretermitted child was a suus, the will was void : if he
was emancipated, he could only demand bonorum possessio contra
tabulas. Children given in adoption had to be either instituted or dis-
inherited unless the adoptio was plena (p. 140 supr.), Cod. 8. 48. 10 pr.

It is not clear what the words 'quod et praetores postea secuti esse
videntur ' refer to : perhaps to the bonorum possessio intestati, but more
probably to the bonorum possessio contra tabulas immediately before
the rescript of M. Aurelius, p* 359 supr.

§ 7. The ' adminiculum ' referred to is the querella inofiiciosi testa-
menti, for which see Tit 18 inf.

Bonorum possessio contra tabulas, referred to in this Title, was
granted, not only to pretermitted liberi, but also, under certain circum-
stances, (a) to the parens manumissor against the will of his emancipated
son, Bk. i. 12. 6 supr., Dig. 37. 12; {b) to a patron and his agnatic de-
scendants against the will of his libertus (Bk. iii. 7 inf.) or liberta (Gaius
i. 192, ii. 122, iii. 43-4) ; (c) to a patroness against the will of her liberta,
Gaius iii. 52.

When granted to a descendant who was not disinherited by the
ancestor in the form required by the edictf its effect, if the praeteritus

a64 INSTITUTIONUM UBRI QUATTUOR. [Lib. 11.

habent liberos suos aut heredes instituere aut exheredare, sed
possunt eos omittere. nam silentium matris aut avi materni
ceterorumque per matrem ascendentium tantum facit, quantum
exheredatio patris. neque enim matri filium filiamve neque
avo matemo nepotem neptemve ex filia, si eum camve here-
dem non instituat> exheredare necesse est, sive de iure civili
quaeramus, sive de edicto praetoris, quo praeteritis Hberis
contra tabulas bonorum possessionem promittit sed aliud
eis adminiculum servatur, quod paulo post vobis manifestum
fiat.

XIV.

DE HEREDIBUS INSTITUENDIS.

Heredes instituere permissum est tarn liberos homines
quam servos tam proprios quam alienos. proprios autem olim

was a snus, was practically to substitute intestate succession for succes-
sion under the will ; if not, its effect will appear more dearly from the
following : —

(i) Upon the pretermitted child demanding bonorum possessio, liberi
who were instituted heirs in the will came in with him under the grant
(commisso per alium edicto), and thus might be largely benefited if the
part in which they were instituted was less than their intestate portion,
I^ig- 37* 4- 8. 14 : but they could not take advantage of the bonorum
possessio if they had in any way accepted under the wilL Liberi who
were properly disinherited in the will could take nothing under it, i.e.
the exheredations stand, even though the will is practically nullified,
unless the will itself becomes void by being destitutum.

(2) The effect of bonorum possessio contra tabulas being not to sub-
stitute the ordinary rules of intestacy, but to make the deceased's bona
divisible among such liberi as are not duly disinherited, later changes
in the law of intestate succession (e. g. Nov. 1x8) have no influence here,
and the nova clausula luliani (for which see Mr. Poste*s note on Gaius iL
135) applies.

(3) Certain portions of the will, if valid iure civili, still remain in
force, viz. (a) the exheredations, Dig. 37. 4. 8. pr., ib. 10. 5 ; {b) the pupil-
lary substitutions (Tit. 16 inf.) and appointments of testamentary guar-
dians ; (c) legacies and fideicommissa to coniunctae personae, i. e.
ascendants and descendants of the testator, and praelegata dotis to the
wife (Tit 2a 15 inf.), or wife of a descendant, Dig. 37. 5. i. pr. A con-
stitution of A. Pius (Dig. 37. 5. 7) limited the amount of such dispositions
by enacting that all the coniunctae personae together could not take
more than each of the bonorum possessores.

Tit. XTV. If a slave in whom another had a usufruct was manumitted

Tit. 14.] DE HEREDIBUS INSTITUENDIS. 265

quidem secundum plurium sententias non aliter quam cum
libertate recte instituere licebat. hodie vero etiam sine liber-
tate ex nostra constitutione heredes eos instituere permissum
est. quod non per innovationem induximus, sed quoniam et
aequius erat et Atilicino placuisse Paulus suis libris, quos tam
ad Masurium Sabinum quam ad Plautium scripsit, refert.
proprius autem servus etiam is intellegitur, in quo nudam
proprietatem testator habet, alio usum fructum habente.
est autem casus, in quo nee cum libertate utiliter servus a
domina heres instituitur, ut constitutione divorum Severi et
Antonini cavetur, cuius verba haec sunt : ' Servum adulterio
maculatum non iure testamento manumissum ante sententiam
ab ea muliere videri, quae rea fuerat eiusdem criminis postulata,
rationis est: quare sequitur, ut in eundem a domina coUata
institutio nuUius moment! habeatur/ alienus servus etiam is
intellegitur, in quo usum fructum testator habet Servus 1
autem a domino suo heres institutus, si quidem in eadem
causa manserit, fit ex testamento liber heresque necessarius.
si vero a vivo testatore manumissus fuerit, suo arbitrio adire
hereditatem potest, quia non fit necessarius, cum utrumque ex

by his dominus, under the old law he remained a slave until the usufruct
determined, Dig. 28. 5. 9. 20. By Justinian's constitution (Cod. 7. 15.
I. pr.) 'inter libertos proprietarii . . . quasi servus apud usufructuarium .
permaneat.'

The constitution of Severus and Antoninus here referred to had been
in some degree suggested by the lex lulia de adulteriis, which provided
' ne mulier intra sexagesimum divortii diem servos manumittat ' Dig. 4a
9. 12-14. If manumitted under the circumstances of the text the act
was not quite 'nullius momenti :' he became statu liber, Dig. 40. 9. 13,
and absolutely free if acquitted — maculatum meaning 'accusatum' (Dig.
28. 5. 48. 2 : cf. Theoph. cyo^oy ^wa r% fiotxetf).

The purpose of a will being the bestowal of the universal succession,
the institution of the heir or heirs was regarded as of more importance
than any other part — as in fact the only part which was in every case
indispensable, ' quia testamenta vim ex institutione heredis accipiunt, ob
id velut caput et fiindamentum intellegitur totius testament! heredis in-
stitutio ' Gains ii. 229 : c£ Tit. 20. 34 inf. Hence, under the old law, no
disposition could precede it in the will except escheredations (e. g. legacy
or manumission) ; and the Sabinians even held that the appointment of
a testamentary guardian ante heredis institutionem was void (Gains ii.
230-1). This was all changed by Jnstinian, Tit 2a 34 inf., Bk. i. 14. 3
supr., Cod. 6. 23. 24.

^66 INSTITUTIONUM LIBRI QUATTUOR, [Lib. If.

domini testamento non consequitur. quodsi alienatus fuerit,
iussu novi domini adire hereditatem debet et ea ratione per
eum dominus fit heres : nam ipse alienatus neque liber neque
heres esse potest, etiamsi cum libertate heres institutus fuerit :
destitisse etenim a libertatis datione videtur dominus qui eum
alienavit. alienus quoque servus heres institutus si in eadem
causa duraverit, iussu domini adire hereditatem debet, si vero
alienatus ab eo fuerit aut vivo testatore aut post mortem eius
antequam adeat, debet iussu novi domini adire. at si manu-

Originally, too, solemn forms of institution were prescribed : * heres in-
stitui recte potest his verbis : Titius heres esto, Titius heres sit, Titium
heredem esse iubeo. Ilia autem institutio; heredem instituo, heredem
facio, plerisque improbata est ' Ulpian, reg. 21. i : of. Gaius ii. 117. The
necessity of using such formulae was first abolished by Constantine II^
A.D. 389, * quibus libet confecta sententiis, vel quolibet loquendi genere
formata institutio valeat, si modo per earn liquebit voluntatis intentio'
Cod. 6. 23. 15 ; even the name of the heir was unnecessary, if it was
certain who was intended, Dig. 28. 5. 9. 8 : cf. Tit. 20. 29 inf.

Some persons cannot be validly instituted at all : they lack testament!
factio. Others, though they can be validly instituted, can either take
nothing at all as heirs, or at least the portion they can take is limited
by law. Between these two classes there is an important difference.
The will is void, if the person instituted lacks testament! &ctio cum
testatore (Ulpian, reg. 22. i) at the date either of the execution of the
will, or of the testator's decease, or at which he ought to make aditio,
Dig. 28. 5. 49. I, Tit. 19. 4 in£ But where one of the second class was
instituted, the will was never void on that ground alone, and capacity
to take was required to exist only at the time when the benefit vested:
'non oportet prius de condicione cuiusqiiam quaeri, quam hereditas
legatumve ad eum pertinet.'

Those who could not be validly instituted at all are (i) peregrini ;
(2) intestabiles, Dig. 28. i. 18. I ; Theoph. ad Inst. ii. 10. 6, though
the incapacity of this class in Justinian's time has been doubted ; (3)
heretics. Cod. i. 5. 4, and apostates, Cod. l. 7. 3 and 4 ; (4) children of
persons convicted of treason, Cod. 9. 8. 5. i ; (5) children of and parties
to unlawful marriages could not be instituted, the former by the parents,
the latter by one another, Cod. 5. 5. 6 ; 5. 9. 6 ; (6) incertae personae,
in particular (a) postumi; but the last relic of this rule, viz. that a
postumus alienus could not be instituted heir or take a legacy was
repealed by Justinian himself. Tit. 20. 28, Bk. iii. 9. pr. inf.: and {b)
juristic persons, Ulpian, reg. 22. 5. This restriction had, however, to a
large extent been removed ; the fiscus could be instituted heir, and so
could municipal corporations (Cod. 6. 24. 12), churches and religious
and charitable foundations (Cod. i. 2. i and 23). Other corporations
could acquire testament! factio only by special grant from the Emperor,

Tit. 14.] DE HEREDIBUS INSTITUENDIS. 267

missus est vivo testatore, vel mortuo antequam adeat, suo

Cod. 6. 24. 8 ; (7) the lex Voconia (see on Tit. 22 pr. inf.), had n\ade
women incapable of being instituted heirs to persons ranked in the
highest class of the census as possessing 100,000 asses or upwards
(Gaius ii. 274), though they might be legatees to the extent of half the
property, Quintil. declam. 264. This disqualification was quite obsolete
under Justinian.

Among the enactments disabling certain classes from taking under a
will either in whole or in part are the following : —

(i) By the lex lunia Norbana Latini luniani were prohibited from
taking either as heirs or as legatees, unless they acquired the civitas
within 100 days, Gaius i. 23-4, ii. no, 275, Ulpian, reg. 17. i.

(2) By a lex lulia of Augustus, the coelebs (unmarried person) could
take nothing under the will of one unrelated to him or her within the
sixth degree as either heir or legatee, unless he or she married within
100 days next after hearing of the right. Certain classes were excepted
on account of age, physical incapacity, etc., Ulpian, reg. 17. i.

(3) By the lex Papia Poppaea, five years later in date, the orbus (i. e.
person who had been married but had no children living, Ulpian, reg.
16. I ) could take under wills of persons outside the sixth degree only a
moiety of what was given them. One child was sufficient to save a man
from the statute, for ingenuae three, for libertae four were required.
Here again there were exceptions on the ground of age and absence
reipublicae causa.

(4) By the same statute, husband and wife who had no children by
the marriage could take under one another's wills only a tenth of what
was given them (lex decimaria), though the amount was increased by
the existence of issue by a previous marriage, or if such issue had died.
They were, however, entitled in addition to the usufruct of a third of the
residue from which they were excluded. Portions which under these
last two statutes could not be taken by those for whom they had been
intended, became caduca, and went in the first instance to co-legatees
with children, in the second, to instituted male heirs with children, in the
third, to male legatees with children, and in default of all, to the treasury.
These restrictions, however, no longer existed under Justinian, the penal-
ties of coelibatus and orbitas having been abolished by the sons of Con-
stantine. Cod. 8. 58. i, and the lex decimaria repealed by Honorius and
Theodosius, Cod. ib. 2.

(5) Domitian disqualified feminae probrosae from taking either the
hereditas or legata. Dig. 29. i. 41. i. Cod. 5. 4. 23. 3. For other disabili-
ties imposed on persons who married a second time, or on illegitimate
while legitimate children were living, see Cod. 5. 9. 6 and 10, Nov. 22. 27
and 28, Nov. 89. 12, for a different case. Tit. 17. 8 inf. Finally, the
bereditas or legata were sometimes ' erepta ' from the person prima facie
entitled on the ground of unworthiness (see Dig. 34. 9, Cod. 6. 35), the
forfeiture being sometimes in &vour of the fiscus, sometimes in that of
other persons.

a68 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

2 arbitrio adire hereditatem potest. Servus alienus post domini
mortem recte heres instituitur, quia et cum hereditariis servis
est testament! factio : nondum enim adita hereditas personae
vicem sustinet, non heredis futuri, sed defuncti, cum et eius,

8 qui in utero est, servus recte heres instituitur. Servus plurium,
cum quibus testamenti factio est, ab extraneo institutus heres
unicuique dominorum, cuius iussu adierit, pro portione dominii
adquirit hereditatem.

For the institution of servus proprius sine libertate see Gains ii. 186,
Bk. I. 6. 2 supr., Cod. 6. 27. 5.

§ 2. The opening words of this paragraph are ambiguous ; they may
refer to the institution of a slave actually at the time belonging to a
hereditas iacens (Dig. 28. 5. 52, ib. 64), or to an institution not to take
effect until the dominus of the slave instituted is dead, Theoph.

The institution of a servus alienus is at first sight enigpnatical, for as
/ he could acquire the inheritance only for his master, why not institute
the latter at once? The solution is twofold. Firstly, the institution of
the slave secured the transmission of the inheritance to the heirs of his
master, whereas if the latter had been instituted himself and had pre-
deceased the testator, the institution would have lapsed : and this could
not be prevented by giving a 'remainder* to his heirs by substitution, for
they were incertae personae ; nemo est heres viventis. To guard against
the contingency of the slave's own death in the lifetime of the testator,
several slaves might be instituted by way of substitution. The other
advantage of instituting a servus alienus will appear from a considera-
tion of the difficulty of transferring an inheritance inter vivos. The
maxim being semel heres, semper heres, it was idle to talk of trans-
ferring the universitas iuris when a man had once actually become heir
by aditio. But at an earlier moment it might have been possible ; what
was there to prevent one to whom a hereditas was delata, and who thus
had the right of accepting, from transferring that right of acceptance
to another ? The aditio of an inheritance, however, was an actus legi-
timus, performable only by the actual person to whom it was delata,
so that even where the person was a slave, who got nothing by aditio,
he must accept himself; his master could not do it for him, and conse-
quently the Romans refused consistently to admit any such assignment.
To this general rule there are but very few exceptions, usually called ' cases
J of transmission,' only one of which concerns us here. Gaius tells us (ii.
35) that when an inheritance was delata to an agnate under an intestacy,
he could, in lieu of personally exercising his right of aditio, transfer it by
in iure cessio to anyone he pleased, and then ' perinde fit heres is cui in
iure cesserit, ac si ipse per legem ad hereditatem vocatus esset.' But this
was the only case in which such transfer was possible : and considering
the Roman dislike of intestacy, and the subordinate position of agnates to
sui, it must even in Gains' time have been a very rare one.

Tit. 14.] DE HEREDIBUS INSTITUENDIS. 269

Et unum hominem et plures in infinitum, quot quis velit, 4
heredes facere licet. Hereditas plerumque dividitur in duode- 5
cim uncias, quae assis appellatione continentur. habent autem
et hae partes propria nomina ab uncia usque ad assem, ut puta
haec : sextans, quadrans, triens, quincunx, semis, septunx, bes,
dodrans, dextans, deunx^ as. non autem utique duodecim uncias
esse oportet. nam tot unciae assem efficiunt, quot testator volu-
erit, et si unum tantum quis ex semisse verbi gratia heredem

If, however, A instituted C, the slave of B, on A's decease B could
either actually become heir by directing C to make aditio, or he could
get all the advantage derivable from the succession, without incurring the
trouble of administration, by selling C at a price enhanced by his character
of institutus : C then made aditio at the direction of the purchaser, who
thereby became heres. If the first owner was reluctant to permanently
part with his slave, he had only to bargain for his reconveyance by a
covenant annexed to the sale.

Another clumsy expedient for effecting the same purpose was a sale of
the inheritance by the heres after acceptance. This was no violation
of the rule semel heres, semper heres, because it did not produce a
universal succession : the purchaser became owner of the deceased's
tangible property only by traditio (Cod. 4. 39. 6), succeeded to his rights
in personam only as cessionary (Dig. 18. 4. 2. 3 and 8), and became
answerable for his debts only according to the ordinary rules of inter-
cession. When, however, the inheritance was purchased from the fiscus,
the vendee was a genuine universal successor. Cod. 4. 39. i. For prac-
tical illustrations of such sales see Tit. 23 inf.

§ 5. The rules stated in this and the three following sections for the
division of an inheritance among two or more instituti may be sum-
marised thus :-—

(i) The hereditas is conceived as an as of twelve ounces, in fractions
of which the heirs respectively are instituted or take : thus A may be
instituted ex quincunce (f^, and B ex septunce {^).

(2) If the testator specifies no shares, the coheirs take ex aequis par-
tibus, § 6, unless it is clear that he intended otherwise: e.g. 'Titius
heres esto : Seius et Maevius heredes sunto : verum est quod Proculo
placet, duos semisses esse, quonun alter coniunctim duobus datur'
Dig. 28. 5. 59. 2.

(3) If he specifies the shares of one or some only, those to whom no
shares are specifically assigned take in equal proportions the difference
between the sum of the shares assigned and the aggregate of f| (e.g.'A
heres ex sextante (J), B heres ex quincunce {f^) ; C, the heir to whom
no share is assigned, takes ex quincunce as well). If, however, the sum
of the share assigned exceeds ^, then the heirs whose shares are not
specified take the difference between it and f|, and, if this is exceeded, ff
and so on, §§ 6 and 8.

Q.'JO INSTITUTIONUM LIBRI QUATTUOR. [Lib. 11.

scripserit, totus as in semisse erit : neque enim idem ex parte
testatus et ex parte intestatus decedere potest, nisi sit miles,
cuius sola voluntas in testando spectatur. et e contrario potest
quis in quantascumque voluerit plurimas uncias suam here-

6 ditatem dividere. Si plures instituantur, ita demum partium
distributio necessaria est,. si nolit testator eos ex aequis parti-
bus heredes esse: satis enim constat nuUis partibus nomi-
natis aequis ex partibus eos heredes esse, partibus autem in
quorundam personis expressis, si quis alius sine parte nomi*
natus erit, si quidem aliqua pars assi deerit, ex ea parte
heres fit : et si plures sine parte scripti sunt, omnes in eadem
parte concurrent, si vero totus as completus sit, in partem
dimidiam vocatur et ille vel lUi omnes in alteram dimidiam.
nee interest, primus an medius an novissimus sine parte

7 scriptus sit : ea enim pars data intellegitur quae vacat. Videa-
mus, si pars aliqua vacet nee tamen quisquam sine parte heres
institutus sit, quid iuris sit? veluti si tres ex quartis partibus
heredes scripti sunt, et constat vacantem partem singulis tacite
pro hereditaria parte accedere et perinde haberi, ac si ex
tertiis partibus heredes scripti essent : et ex diverso si plus in
portionibus sit, tacite singulis decrescere, ut, si verbi gratia
quattuor ex tertiis partibus heredes scripti sint, perinde ha-
beantur, ac si unusquisque ex quarta parte scriptus fuisset.

8 Et si plures unciae quam duodecim distributae sunt, is, qui
sine parte institutus est, quod dipondio deest habebit : idemque
erit, si dipondius expletus sit. quae omnes partes ad assem
postea revocantur, quamvis sint plurium unciarum.

9 Heres et pure et sub condicione institui potest, ex certo

(4) If he specifies shares for each and all of the heirs, which, however,
do not together make up the number 12 or any multiple of 12, their shares
are rateably increased until 12 or its next multiple is reached : conversely,
if he gives away more than the as in fractions among all the heirs, their
shares are rateably diminished, § 7.

It should be observed in addition that if it is clear that the testator's
intention, in giving the instituted heirs less than the whole as, was to
limit them, and if it is certain to whom he meant the residue to go, they
or one of them can be compelled to convey it to him as a fideicom-
missum ; and where a testator institutes one of two heirs ex asse, and
the other in a fraction, the will is to be interpreted, as a rule, as if no
definite share had been assigned to the first at all, Cod. 6. 37. 23. pr.

§ 9. For condicio and dies in general see pp. 162-164 supr. An exhe*

Tit. 14.] DE HEREDIBUS INSTITVENDIS. 271

tempore aut ad certum tempus non potest, veluti * post quin-
quennium quam moriar ' vel * ex kalendis ilHs ' aut * usque ad
kalendas illas heres esto ; ' diemque adiectum pro supervacuo
haberi placet et perinde esse, ac si pure heres institutus esset.
Impossibilis condicio in institutionibus et legatis nee non in 10
Adeicommissis et libertatibus pro non scripto habetur. Si plures 1 1
condiciones institutioni adscriptae sunt, si quidem coniunctim,
ut puta * si illud et illud factum erit,' omnibus parendum est :
si separatim, veluti 'si illud aut illud factum erit,' cuilibet
obtemperare satis est.

redation could not be made subject to a condition unless the child were
instituted in the contrary event, Dig. 28. 2. 3. i ; 37. 4. 18. pr.

The institution of an heir ex tempore or ad tempus (i. e. ex die or in
diem), or subject to a resolutive condition, would violate the maxim semel
heres, semper heres, and such qualifications were accordingly taken pro
non scriptis, Dig. 28. 5. 34, ib. 88, except in soldiers' wills, in which the
effect of a dies ex quo was delation, until the arrival of the dies, to the in-
testate heirs, Dig. 29. i. 41. pr., that of a dies in quem, or the fulfilment of
a resolutive condition was to shift the hereditas on to the substitutus, or,
if there were none, to the heredes ab intestato.

Thus the only condition upon which an ordinary institution can be
made to depend is a suspensive one. The effect of this was, strictly, to
postpone delatio to the institutus till the condition was fulfilled, Dig. 29.
2. 69 : but the opinion of Mucius Scaevola was gradually recognised as
law, that a person instituted under a condicio non faciendi practically
fulfils the condition, and becomes at once entitled to the inheritance, by
giving security that if he breaks the condition he will transfer the estate
to those entitled next after him (cautio Muciana, Dig. 35. i. 7). And even
any one conditionally instituted could, before the fulfilment of the condi-
tion, obtain provisional bonorum possessio from the praetor by giving the
same security, Dig. 37. 1 1. 5. pr. ; 2. 8. 12. If he did not avail himself of
this privilege, and the condition was one whose fulfilment was entirely
within his own control (e. g. si servum suum manumiserit), the creditors
of the estate could get a limit of time fixed within which he must fulfil the
condition or forfeit his right, Dig. 28. 5. 23. i : if the condition was not of
this kind (e.g. si Titius consul factus erit) the creditors could obtain
a grant of possessio of the inheritance, and pay themselves from the pro*
ceeds of its sale. Dig. ib. 23. 2.

§i»10. Impossible conditions are those which cannot be fulfilled either
(i) on natural grounds (physically impossible, e.g. Bk. iii. 19. 11), or
(2) on jural grounds (Weluti sororem nupturam sibi aliquis stipulatur'
jDig. 45. I. 35. i) : turpes (immoral) condiciones are treated in the same
way as those which cannot legally be performed, Dig. 28. 7. 15. A further
distinction is that between conditions which are absolutely or objectively

21% INSTITUTIONUM LIBRI QUATTUOR. [Lib. 11.

12 Hi, quos numquam testator vidit, heredes institui possunt.
veluti si fratris filios peregri natos ignorans qui essent heredes
instituerit: ignorantia enim testantis inutilem institutionem
non facit.

XV.

DE VULGARI SUBSTITUTIONE.

Potest autem quis in testamento suo plures gradus heredum

facere, ut puta *si ille heres non erit, ille heres esto:' et

deinceps in quantum velit testator substituere potest et

novissimo loco in subsidium vel servum necessarium heredem

1 instituere. Et plures in unius locum possunt substitui, vel

impossible, and those which are only relatively impossible ; by the latter
being meant such as might have been performed under other circum-
stances, but which under existing circumstances cannot : e. g. release of
a non-existent debt, or manumission of a slave who is dead. Between
these, however, and those which are objectively impossible there is, in
general, no difference of treatment or effect : Savigny, System iii. p. 165.
A contract made subject to an impossible condition was void, Bk. iii. 19.
1 1 inf. : the Proculians had maintained the same of testamentary disposi-
tions, but the Sabinians held that an impossible condition in a will ought
to be taken pro non scripto, though Gaius himself (iii. 98) admitted the
unreasonableness of the distinction between wills and contracts, which
nevertheless was confirmed by Justinian. A condition whose fulfilment
becomes impossible only after the making of the will does not come within
the rule. Dig. 9. 2. 23. 2.
Tit. XV. Substitutions bear some resemblance to the remainders of
V English law. They were dictated partly, no doubt, by the natural desire
to be succeeded by a number of persons, not collectively, but in sub-
ordination to one another; A (e.g.) being preferred to B, but if A could
or would not take the inheritance, then B being preferred to C, and so
on : but they were due still more, as is suggested by the concluding words
of the opening section, and as appears even more clearly from the next
Title, to the Roman dislike of intestacy. A substitution, as may be seen
from the form given in the text, is in effect a conditional institution:
conditional either on another and earlier named institutus not taking the
inheritance (Tit. 15), or, not only on this, but also on his taking and dying
before he is old enough to make a will for himself (pupillary substitution,
Tit. 16). The modes in which the condition might be fulfilled, and the
substitution take effect, were (i) the institutus dying before the testator:
(2) his failing to comply with the testator's directions, e. g. as to the time
within which he must accept : (3) his refusal to accept, or (4) disability of
being instituted or inability to take.
§ L When several joint instituti were reciprocally substituted each to

Tit. 15.] DE VULGARI SUBSTITUTIONE. 273

unus in plurium, vel singuli singulis, vel invicem ipsi qui
heredes instituti sunt. Et si ex disparibus partibus heredes 2
scriptos invicem substituerit et nullam mentionem in substi-
tutione habuerit partium, eas videtur partes in substitutione
dedisse, quas in institutione expressit : et ita divus Pius re-
scripsit. Sed si institute heredi et coheredi suo substitute 8
dato alius substitutus fuerit, divi Severus et Antoninus sine
distinctione rescripserunt ad utramque partem substitutum
admitti. Si servum alienum quis patrem familias arbitratus 4
heredem scripserit et, si heres non esset, Maevium ei substi-
tuerit isque servus iussu domini adierit hereditatem^ Maevius
in partem admittitur. ilia enim verba ' si heres non erit ' in eo
quidem, quem alieno iuri subiectum esse testator scit, sic acci-
piuntur : si neque ipse heres erit neque alium heredem effecerit :
in eo vero, quem patrem familias esse arbitratur, illud signi-
ficant : si hereditatem sibi eive, cuius iuri postea subiectus
esse coeperit, non adquisierit. idque Tiberius Caesar in per-
sona Parthenii servi sui constituit

one another, any one of them who made aditio thereby also acquired his
share in the portion of any other who failed from any reason to take,
which he could not refuse ; and any one of them who refused to make
aditio as institutus could claim nothing as substitutus.

§ 3. This is expressed by the maxim substitutus substituto est substitu-
tus instituto, which can be broken up into two quite different propositions :
(i) if B is substituted to A, and C to B, and B predeceases C, the latter is
entitled to A's share si heres non erit : (2) if of two coheirs, A and 6, B
is substituted to A, and C, an extraneus, is substituted to B, then C, if
A and B both drop out, gets B's share not only as substitutus, but also as
institutus.

For the question whether a vulgar was implied in a pupillary sub-
stitution see Mr. Poste's note on Gaius ii. 179. M. Aurelius enacted
that each should be implied in the other: Mam hoc iure utimur ex
D. Marci et Seven constitutione, ut quum pater impuberi filio in alterum
casum substituisset, in utrumque casum substituisse intellegatur, sive iilius
heres non extiterit, sive extiterit et impubes decesserit ' Dig. 28. 6. 4. pr.

§ 4. If it could be proved that the testator would not have instituted
the alienus servus, had he known his actual condition, the institution
was void, and the substitute took all, Cod. 6. 24. 3.

274 INSTITUTIONUM LIBRI QUATTUOR, [Lib, II.

XVL

DE PUPILLARX SUBSTXTUTIONE.
Liberis suis impuberibus, quos in potestate quis habet, non
solum ita ut supra diximus substituere potest, id est ut, si here-
des ei non extiterint, alius ei sit heres, sed eo amplius ut et, si
heredes ei extiterint et adhuc impuberes mortui fuerint, sit eis
aliquis heres. veluti si quis dicat hoc modo: *Titius filius
meus heres mihi esto : si filius meus heres mihi non erit, sive
heres erit et prius moriatur, quam in suam tutelam venerit
(id est pubes factus sit), tunc Seius heres esto.' quo casu si
quidem non extiterit heres filius, tunc substitutus patri fit
heres : si vero extiterit heres filius et ante pubertatem deces-
serit, ipsi fiHo fit heres substitutus. nam moribus institutum
est, ut, cum eius aetatis sunt, in qua ipsi sibi testamentum

Tit. XVI. Substitutio pupillaris, like the right of appointing testa-
mentary guardians to one's own filiifamilias under the age of puberty,
was a pure outcome of patria potestas, and, as Justinian tells us here, an
institution of customary law. Where a paterfamilias instituted as his
heir his impubes filiusfamilias (or one not yet bom, postumus, § 4
inf., Dig. 28. 6. 2. pr.), he could substitute to the latter so as to meet
not only the event of his predeceasing him himself^ and so not becoming
heir at all, but also that of his becoming heir, and then dying before he
reached puberty : and even if he disinherited the child, he could appoint
a substitutus to him in the event of his dying impubes, to take any
property which he might himself acquire between his becoming sui iuris
and his death. The object of the practice in either case was clearly to
save the child from dying intestate : not being able, ex hypothesis to
make a valid will for himself, his paterfamilias was allowed to make one
for him, § 2, which became void eo instanti that he himself acquired
testamentary capacity, § 8, The differences between this and vulgar
substitution are clear at a glance. The latter operates only if the in-
stitutus fails to take the inheritance : if he once accepts, the contingent
right of the substitutus falls to the ground. But pupillary substitution is
not necessarily made to an institutus at all : it may be made to a dis-
inherited child ; and even if the child as a fact is instituted, and actually
takes the inheritance, the substitution may still operate, and will, if the
heir dies under the age of puberty.

If the pupillariter substitutus was himself instituted, jointly with the
child, to the inheritance and refused it, he could not take under the
substitution : conversely, his acceptance of it was an implicit acceptance
of the child's inheritance in case he became entitled, Dig. 28. 6. 10. 2 and
3, Cod. 6. 30. 20. I.

Tit, 16.] DE PUPILLARI SUBSTITUTIONE. 275

facere non possunt, parentes eis faciant. Qua ratione excitati 1
etiam constitutionem in nostro posuimus codice, qua pros-*
pectum est, ut, si mente captos habeant jfilios vel nepotes vel
pronepotes cuiuscumque sexus vel gradus, liceat eis, etsi pu-
beres sint, ad exemplum pupiliaris substitutionis certas per-
sonas substituere : sin autem resipuerint, eandem substitu-
tionem infirmari, et hoc ad exemplum pupiliaris substitutionis,
quae postquam pupillus adoleverit infirmatur. Igitur in pu- 2
pillari substitutione secundum praefatum modum ordinata duo
quodammodo sunt testamenta, alterum patris, alterum filil,
tamquam si ipse filius sibi heredem instituisset : aut certe
unum est testamentum duarum causarum, id est duarum here-
ditatum. Sin autem quis ita formidolosus sit, ut timeret, ne 3

A pupillary substitution became void not only on the child's attaining
puberty, but also by his dying or otherwise passing out of potestas /
during the father's lifetime, and by his falling on the pater's death under
the potestas of another, though not by his subsequent adrogation, Dig.
I. 7. 17. I.

§ 1. This quasi pupiliaris or exemplaris substitutio, as it is commonly
called, was, as a general right, a new creation of Justinian, and was quite
independent of patria potestas, being allowed to ascendants of either
sex. Cod. 6. 26. 9, provided they left to the lunatic or idiot child the
legitima portio (Tit. 18 inf.). It is doubtful whether they might make a
will of this legitima portio only, or of the child's whole property : and in
their choice of a successor to the mente captus they were limited, in the
first instance, to descendants of the latter, in the second, to descendants
of their own ; in default of both they might select whom they pleased :
this is the meaning of * certas personas ' in the text. In general the rules
of substitutio pupiliaris applied. By special permission from the Emperor
a father might name an heir for a child who was on other grounds dis-
abled from making a will for himself, but such appointment became void
if the incapacity ceased, or the child had a suus heres bom to him. Dig.
28. 6. 43. pr.

§ 2. In pr. the substitutus is said to become heir to the child, and so
too in Gaius ii. 180 ; earlier he seems rather to have been regarded as
successor to the father, *si mihi filius gignitur, isque prius moritur [quam
in suam tutelam veniat, sc.] tum ut mihi ille sit heres ' Cic. de orat. 2. 32,
*non filio, sed sibi ' de invent. 2. 21 ; cf. Dig. 37. 11. 8. i.

The pupillary substitution, as appears from § 3 inf., might be con-
tained in a separate instrument, or even in a separate will, Dig. 28. 6.
16. J, ib. 20. I, though in the latter case the pater's will must be made
first, Dig. ib. 2. 4 : it was, however, always regarded as a mere appen-
jdage of the latter, with which it stood or fell, § 5 inf.. Dig. 28. 6. 10. 4.

§ 3. Gaius observes (ii. 181) that it was far safer to make both subt

T %

276 INSTITUTIONUM LIBRI QUATTUOR. [Lib. H.

filius eius pupillus adhuc ex eo, quod palam substitutum
accepit, post obitum eius periculo insidiarum subiceretur:
vulgarem quidem substitutionem palam facere et in primis
testamenti partibus debet, lUam autem substitutionem, per
quam et si heres extiterit pupillus et intra pubertatem deces-
serit substitutus vocatur, separatim in inferioribus partibus
scribere eamque partem proprio lino propriaque cera consig-
nare et in priore parte testamenti cavere, ne inferiores tabulae
vivo filio et adhuc impubere aperiantur. illud palam est non
ideo minus valere substitutionem impuberis filii, quod in isdem
tabulis scripta sit, quibus sibi quisque heredem instituisset,

4 quamvis hoc pupillo periculosum sit. Non solum autem
heredibus institutis impuberibus liberis ita substituere parentes
possunt, ut et si heredes eis extiterint et ante pubertatem
mortui fuerint, sit eis heres is quem ipsi voluerint, sed etiam
exheredatis. itaque eo casu si quid pupillo ex hereditatibus
legatisve aut donationibus propinquorum atque amicorum ad-
quisitum fuerit, id omne ad substitutum pertineat. quae-
cumque diximus de substitutione impuberum liberorum vel
heredum institutorum vel exheredatorum, eadem etiam de

5 postumis intellegimus. Liberis autem suis testamentum facere
nemo potest, nisi et sibi faciat : nam pupillare testamentum
pars et sequela est paterni testamenti, adeo ut, si patris testa-

6 mentum non valeat, ne filii quidem valebit. Vel singulis
autem liberis vel qui eorum novissimus impubes morietur
substitui potest, singulis quidem, si neminem eorum intestato
decedere voluit: novissimo, si ius legitimarum hereditatium

7 integrum inter eos custodiri velit. Substituitur autem impu-
beri aut nominatim, veluti * Titius,' aut generaliter * quisquis
mihi heres erit ' : quibus verbis vocantur ex substitutione im-
pubere filio mortuo, qui et script! sunt heredes et extiterunt,

8 et pro qua parte heredes facti sunt. Masculo igitur usque ad
quattuordecim annos substitui potest, feminae usque ad duo-

stitutions in separate instruments, ' quod ex priore [substitutione] potest
intellegi in altera quoque idem esse substitutus.' For illustrations of the
danger referred to see Cic. pro Cluent. 11. 32, Horace, Sat. 2. 5. 49,
Persius, Sat. 2. 12. 13, Suetonius, Galba 9, Dig. 27. 2. i. i.

§ 4. The right of substituting to disinherited children was doubtful ia
the time of Cicero^ de invent. 2. 21.

Tit. 17.] QUIBUS MODIS TESTAMENTA INFIRMANTUR. 277

decim annos : et si hoc tempus excesserit, substitutio evanescit.
Extraneo vero vel filio puberi heredi instituto ita substituere 9
nemo potest, ut, si heres extiterit et intra aliquod tempus
decesserit, alius ei sit heres : sed hoc solum permissum est, ut
eum per fideicommissum testator obliget alii hereditatem eius
vel totam vel pro parte restituere: quod ius quale sit, suo
loco trademus.

XVII.

QUIBUS MODIS TESTAMENTA INFIRMANTUR.

Testamentum lure factum usque eo valet, donee rumpatur
irritumve fiat. Rumpitur autem testamentum, cum in eodem 1
statu manente testatore ipsius testamenti ius vitiatur. si quis
enim post factum testamentum adoptaverit sibi filium per im-
peratorem eum, qui sui iuris est, aut per praetorem secundum
nostram constitutionem eum, qui in potestate parentis fuerit,
testamentum eius rumpitur quasi adgnatione sui heredis.

§ 9. As is said in the text, the power of a testator to control the
devolution of property after his own decease depended on the operation of ^i
fideicommissa (Tit. 23 inf.). Apparently he could not control or tie up the
* hereditas ' for more than two lives, viz. those of the instituted impubes
fiiius and of the pupillariter substitutus. But it would seem that the
devolution of specific property might be prescribed for an unlimited
period by imposing on each successive recipient a charge to bequeath
it to the next, at any rate for the purpose of keeping it in a particular
family : Dig. 30. 114. 14-18 : 31. 32. 6 : ib. 67. pr— 7 : ib. 69. i. 3. 4 : see
Amdts. Pandekten, § 549. By Nov. 159. c. 2 it was enacted that the
fourth holder should be discharged from the trust: but in the modem
dvil law this is not binding : Wachter, Pandekten, § 316, note 6.

Tit. XVII. For the modes in which a will might be or become void
see Bk. iii. i. pr. inf. A will which was void ab initio was said to be
iniustum or non iure factum; this might occur (i) through want of
testamenti factio in the testator at the time of its execution, p. 256 supr. ;
(2) through defect of form, pp. 248-253 supr. ; (3) through defect in the
institution, especially praeterition of a suus heres, pp. 258 sqq. supr., and
institution of a person who has not testamenti factio passiva, p. 266 supr.,
Dig. 28. 5. 49. I.

§ 1. The subsequent birth (agnatio) of a postumus suus avoided a
previously executed will, unless the postumus was by anticipation in-
stituted or disinherited; but, as is observed on Tit. 13. i supr., certain
postumi by quasi-agnatio could never be disinherited so as to save the
will. Adoptio minus plena did not avoid a will previously executed by
the adoptans, for the adopted child did not come under his potestas.

2yS INSTITUTIONUM LIBRl QUATTUOR. [Lib. II-

2 Posteriore quoque testamento, quod iure perfectum est, supe-
rius rumpitur. nee interest, an extiterit aliquis heres ex eo,
an non extiterit: hoc enim solum spectatur, an aliquo casu
existere potuerit. ideoque si quis aut noluerit heres esse, aut
vivo testatore aut post mortem eius antequam hereditatera
adiret decesserit, aut condicione, sub qua heres institutus est,
defectus sit, in his casibus pater familias intestatus moritur :
nam et prius testamentum non valet ruptum a posteriore et
posterius aeque null as vires habet, cum ex eo nemo heres

3 extiterit* Sed si quis priore testamento lure perfecto poste-
rius aeque iure fecerit, etiamsi ex certis rebus in eo heredem
instituerit, superius testamentum sublatum esse divi Severus
et Antoninus rescripserunt cuius constitutionis inseri verba
iussimus, cum aliud quoque praeterea in ea constitutione

§ 2. A later valid will revoked an earlier one, even though the testator
had, by the latter or any other declaration, proclaimed any subsequent
testamentary disposition of his own void : and even a statement in the
first that it should be revoked by a later one only if executed in a special
form, was altogether ineffectual for the purpose contemplated, for ' am-
bulatoria est voluntas . . . usque ad vitae supremum exitum' Dig. 24.

I. 32. 3.

One exception, however, to the rule, that the second will, to revoke
the first, must be valid iure civili, is stated by Ulpian in Dig. 28. 3. 2 ;
' tunc autem prius testamentum rumpitur, quum posterius rite perjectum
est, nisi forte posterius vel iure militari sit factum, vel in eo scriptus est,
qui ab intestato venire potest: tunc enim et posteriore non perfecto
superius rumpitur,' i.e. a prior valid will is revoked by a later invalid
one, if the intestate heirs of the deceased are passed over in the first
and instituted in the second, cf. Cod. 6. 23. 21. 5. Conversely, as ap-
pears from § 3, the institutus would be bound by the provisions of an
earlier will which the later one had revoked, if the dispositions of that
in which he was instituted could be read as imposing on him a fidei-
commissum tacitum. Such an inference is there drawn from the fact
that he was instituted to res certae only : though, if those res certae did
not amount to as much, he might retain enough in addition as would
make up the clear fourth of the inheritance to which he was entitled
under the SC. Pegasianum (not the lex Falcidia, as is erroneously stated
in the text).

Besides the two modes mentioned in §§ i and 2, a will might be
ruptum (a) as described in § 7 inf. ; (b) by an oral or otherwise informal
declaration of revocation, if made before three witnesses, or registered
in the acta, and at least ten years since the execution of the will, Cod.
6. 23. 27. 2.

Tit. 17.] QUIBUS MODIS TESTAMENTA INFIRMANTUR, 7,^q

expressum est. * Imperatores Severus et Antoninus Cocceio
Campano. Testamentum secundo loco factum, licet in eo
certarum rerum heres scriptus sit, iure valere, perinde ac si
rerum mentio facta non esset, sed teneri heredem scriptum,
ut contentus rebus sibi datis aut suppleta quarta ex i^e
Falcidia hereditatem restituat his, qui in priore testamento
scripti fuerant, propter inserta verba secundo testamento, qui-
bus ut valeret prius testamentum expressum est, dubitari non
oportet.' et ruptum quidem testamentum hoc modo efficitur.
Alio quoque modo testamenta iure facta infirmantur, veluti 4
cum is qui fecerit testamentum capite deminutus sit. quod
quibus modis accidit, primo libro rettulimus. Hoc autem 5
casu irrita fieri testamenta dicuntur, cum alioquin et quae
rumpuntur irrita fiant et quae statim ab initio non iure fiunt
irrita sunt : et ea, quae iure facta sunt, postea propter capitis
deminutionem irrita fiunt, possumus nihilo minus rupta dicere.
sed quia sane commodius erat singulas causas singulis appei-
lationibus distingui, ideo quaedam non iure facta dicuntur,
quaedam iure facta rumpi vel irrita fieri. Non tamen per 6
omnia inutilia sunt ea testamenta, quae ab initio iure facta
propter capitis deminutionem irrita facta sunt, nam si septem
testium signis signata sunt, potest scriptus heres secundum
tabulas testamenti bonorum possessionem agnoscere, si modo
defunctus et civis Romanus et suae potestatis mortis tempore
fuerit : nam si ideo irritum factum sit testamentum, quod
civitatem vel etiam libertatem testator amisit, aut quia in
adoptionem se dedit et mortis tempore in adoptivi patris

§ 4. Capitis deminutio is only an instance of a will becoming irritum
(veluti) ; another would be that of a soldier's will avoided at the end of a
year after his discharge, Dig. 28. 3. 7.

( 6. The only kind of capitis deminutio whose effect, in making the
will irritum, could be overridden in this manner by bonorum possessio
secundum tabulas was capitis deminutio minima. The bonorum pos-
sessio was sine re, i. e. could always be practically defeated by the civil
heirs ab intestato of the deceased, if there were such (Gaius ii. 148, 9,
Ulpian, reg. 23. 6), unless the testator, after recovering testamenti factio,
expressly declared his desire that the will should stand, Dig. 37. 11. 11. 2.
If the capitis deminutio resulted from capture in war, the will was not
irritum, being upheld either iure postliminii or by the fictio legis Come-
liae, see on Tit. 12. 5 supr.

a8o INSTITUTIONUM UBRI QUATTUOR. [Lib. II.

potestate sit, non potest scriptus heres secundum tabulas

7 bonorum possessionem petere. Ex eo autem solo non potest
infirmari testamentum, quod postea testator id noluit valere :
usque adeo ut et, si quis post factum piius testamentum pos-
terius facere coeperit et aut mortalitate praeventus, aut quia
eum eius rei paenituit, id non perfecisset, divi Pertinacis ora-
tione cautum est, ne alias tabulae priores iure factae iiritae
fiant, nisi sequentes iure ordinatae et perfectae fuerint. nam

8 imperfectum testamentum sine dubio nullum est. Eadem
oratione expressit non admissurum se hereditatem eius, qui
litis causa principem heredem reliquerit, neque tabulas non
legitime factas, in quibus ipse ob earn causam heres institutus
erat, probaturum neque ex nuda voce heredis nomen admis-

Bonorum possessio secundum tabulas usually found its application
where there was a will which iure civili was void, but which satisfied
the praetorian requirements ; cases of this, besides that in the text, and
the praetorian will mentioned p. 248 supr. are (i) pretermission of a suus
heres, though the bonorum possessio was sine re, unless the suus pre-
V deceased the testator or abstained from the inheritance, Dig. 28. 3. 12. pr.,
ib. 17. (2) If a later will became void, bonorum possessio would be
granted secundum tabulas prions testamenti, Dig. 37. 11. 11. 2. (3) If
there were two or more wills, none of which could be proved to be the
most recent, they would be read together as one (praetorian) testa-
ment, Dig. 37. II. I. 6: for a case obsolete under Justinian see Gains
ii. 1 18-122.

A will might become void, not only by being ruptum or irritum, but
also (i) by being destitutum or desertum, i.e. by the failure of all in-
stituted heirs to take, whether from refusal, from predeceasing the
testator, or from want of testamenti factio between delatio and aditio
(Tit. 19. 4 inf.); and (2) by being successfully impeached on the ground
of inofficiositas, as described in the next Title.

§ 7. For ' oratio ' see p. 105 supr., and for the enactment of Pertinax
cf. Capitol. Pert. 7 ' legem . . . tulit, ut testamenta priora non prius essent
irrita, quam alia perfecta essent, neve ob hoc fiscus aliquando suc-
cederet.' To cancel a written will otherwise than by the execution of a
later one it was necessary to destroy the instrument by tearing or cutting
it, or by erasing the institution, though tmintentional erasure after execu-
tion did not affect the validity of its dispositions if their tenor was
known, Dig. 28. 4. i. 2. Single dispositions could similarly be revoked
by erasure, without affecting the validity of the will as a whole, Dig. ib. 2.

§ 8. Cf. Paulus, sent. rec. 5. 12. 8 (in Dig. 28. 5. 9. i.) Mmperatorem
litis causa heredem institui invidiosum est, nee calumniae facultatem ex
principali maiestate capi oportet' For acceptance under informal wills
by the Emperors cf. Suetonius, Calig. 38, Domit. 12, Pliny, Paneg. 43.

Tit. i8.] DE INOFFICIOSO TESTAMENTO. %%!

surum neque ex ulla scriptura, cui iuris auctoritas desit, aliquid
adepturum. secundum haec divi quoque Sevcrus et Antoninus
saepissime rescripserunt : * licet enim ' inquiunt * legfibus soluti
sumus, attamen legibus vivimus.' . > '

XVIII.

DE INOFFICIOSO TESTAMENTO.

Quia plerumque parentes sine causa liberos suos vel exhe-
redant vel omittunt, inductum est, ut de inofficioso testamento
agere possint liberi, qui queruntur aut inique se exheredatos
aut inique praeteritos, hoc colore, quasi non sanae mentis
fuerunt, cum testamentum ordinarent. sed hoc dicitur, non
quasi vere furiosus sit, sed recte quidem fecit testamentum,
non autem ex officio pietatis : nam si vere furiosus est, nul-
lum est testamentum. Non tantum autem liberis permis- 1
sum est parentum testamentum inofficiosum accusare, verum
etiam parentibus liberorum. soror autem et frater turpibus

'Nuda vox' seem to mean the allegation of having heard so and so
declare informally that he had made the Emperor his heir (' qui diceret
audisse se ex defuncto, cum viveret, heredem sibi Caesarem esse'
Suetonius, I. c).

Tit. XVUI. The practice of exheredation formally enabled a father i
to debar his children from all share in his succession; in this Title is
described the remedy for too harsh an exercise of this privilege, which
practically secured to relations within a certain degree of every testator
a fixed proportion of his or her property. The persons to whom this
right of impeaching a will as inofficiosum belonged are specified in §§ I
and 2, and the circumstances under which it could be exercised in § 3.
The querella, or action for the rescission of the will, had to be brought
within five years of the testator's decease : its ordinary effect was to avoid
it in toto, and to substitute succession ab intestato. Dig. 5. 2. 8. 16, ib. 13,
though it might be brought against one or some only of several joint
heirs, in which case the will was upset only in part, the testator remain-
ing pro parte testatus, Dig. 5. 2. 19. 24. For the plea upon which the
will was avoided (quasi non sanae mentis) cf. Val. Max. 7. 8. i, Seneca,
clement, i. 14, Dio Cassius 59. i, Pliny, Paneg. 43.

§ L Descendants could bring the querella against the wills of as-
cendants (' exheredant . . . omittunt ' in pr. indicating respectively ascen-
dants exercising potestas and all other ascendants, female as well as
male) and vice versa, if, supposing the testator had died intestate, they
would have been the heirs, civil or praetorian, Dig. 5. 2. 6. 2 : ib. 7 : ib.
8 pr. As to the rights of brothers and sisters against one another, Ulpian

a8a INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

personis scriptis heredibus ex sacris constitutionibus praelati
sunt : non ergo contra omnes heredes agere possunt. ultra
fratres et sorores cognati nullo modo aut agere possunt aut

2 agentes vincere. Tarn autem naturales liberi, quam secundum
nostrae constitutionis divisionem adoptati ita demum de in-
officioso testamento agere possunt, si nullo alio iure ad bona
defuncti venire possunt. nam qui alio iure veniunt ad totam
hereditatem vel partem eius, de inofficioso agere non possunt.
postumi quoque, qui nullo alio iure venire possunt, de inofficioso

3 agere possunt. Sed haec ita accipienda sunt, si nihil eis penitus
a testatoribus testamento relictum est. quod nostra constitutio
ad verecundiam naturae introduxit. sin vero quantacumque
pars hereditatis vel res eis fuerit relicta, de inofficioso querella
quiescente id quod eis deest usque ad quartam legitimae partis
repletur, licet non fuerit adiectum boni viri arbitratu debere

writes 'omnibus enim tarn parentibus quam liberis de inofficioso licet
disputare : cognati enim proprii qui sunt ultra fratrem melius facerent si
se sumptibus inanibus non vexarent, cum obtinere spem non haberent '
Dig. 5. 2. I. Constantine enacted that only agnatic brothers and sisters
should be entitled to bring the querella ; Justinian extended it to germani,
but excluded uterini, and repealed the requirement of agnatic connection,
Cod. 3. 28. 27, though still allowing the action only where turpes personae
were preferred ('si script! heredes infamiae vel turpitudinis vel levis
notae macula adsparguntur ').

§ 2. The plene adoptatus alone (unless emancipated before the testa-
tor*s death) could impeach his adoptive father's will, Cod. 8. 48. 10. pr. :
the minus plene adoptatus retained the right against his natural father.
As is remarked in the text, the action was barred if the claimant could
obtain his due alio iure, e.g. by bonorum possessio contra tabulas, if
he were an emancipated son and praeteritus, or by the quarta Antonina,
if, having been adrogated as impubes, he was subsequently disinherited ;
see Bk. i. 11. 3 supr.

§ 8. Before Justinian the querella lay whenever the claimant had re-
ceived less from the testator than he was entitled to by law : ' si parum,
quam ei debebatur, fuerit consecutus, movere de inofficioso testamento
querellam concedatur' Nov. Theod. i. 22. He, however, enacted (Cod.
3. 28. 30-36) that in future the sole ground for the action should be that
the claimant had received nothing at all : if he had received something,
though ever so little, his sole remedy was to bring the new action ad
supplendam legitimam against the heir or heirs, which left the will un-
touched : for precedents for this rule cf. Paul, sent rec. 4. 5. 10, Cod.
3. 28. 4. The share which one could demand was one-fourth of what one
would have had if the testator bad died intestate, Dig. 5. 2. 8. 8. Justinian

Tit. 18.] DE INOFFICIOSO TESTAMENTO. ^83

earn repleri. Si tutor nomine pupilli, cuius tutelam gerebat, 4
ex testamento patris sui legatum acceperit, cum nihil erat ipsi
tutori relictum a patre suo, nihilo minus possit nomine suo de
inofficioso patris testamento agere. Sed et si e contrario 5
pupilli nomine, cui nihil relictum fuerit, de inofficioso egerit et
superatus est, ipse quod sibi in eodem testamento legatum
relictum est non amittit. Igitur quartam quis debet habere, 6
ut de inofficioso testamento agere non possit : sive iure here-
ditario sive iure legati vel fideicommissi, vel si mortis causa
ei quarta donata fuerit, vel inter vivos in his tantummodo
casibus, quorum nostra constitutio mentionem facit, vel aliis
modis qui constitutionibus continentur. Quod autem de 7
quarta diximus, ita intellegendum est, ut, sive unus fuerit sive

subsequently enacted, by Nov. 18. i, that if a man had less than five
children he must leave them together, in equal shares, at least a third of
the inheritance ; if five or more, at least one-half.

§ 4. Acceptance of anything, with full knowledge, under the will was
taken to imply acquiescence in its dispositions, and so barred the
querella, Dig. 34: 9. 5 pr. ; a rule sometimes so strictly construed that to
assist a claimant under the will as counsel was held to exclude one from
impeaching it on one's own account. Dig. ib. 32. pr.

§ 5. ' Qui testamentum inofficiosum dixit, et non obtinuit, id quod in
testamento accepit, perdere, et id fisco vindicari, quasi indigno ablatum *
Dig. 5. 2. 8. 14. For other exceptions see Paul. sent, rec 4. 5. 9. 10,
I^ig' 34- 9- 5 ; 5' 2. 22. I and 3, ib. 30. i.

§ 6. Gifts from the testator inter vivos (i. e. not mortis causa) could
not as a rule be counted as part of the quarta, unless made propter
nuptias or by way of dos, Cod. 3. 28. 29, or unless it had been so ex-
pressly agreed between the parties, Cod. ib. 35. 2 ; for other exceptions
se^ Cod. ib. 30. 2, Cod. 6. 20. 20. pr., Dig. 5. 2. 25. pr.

§ 7. The true ground of the querella inoflficiosi being the testator's
impietas or want of natural affection, success depended on the plaintiffs
ability to show Mmmerentem se et ideo et indigne praeteritum vel
etiam exheredatione summotum ' Dig. 5. 2. 5 : the onus of proving the
existence of reasonable grounds for the plaintiffs exclusion lay on the
defendant (instituted heir), who might meet the plaintiff by the exceptio
ingratitudinis. Cod. 3. 28. 19. ib. 23.

By Nov. 115. 3-5 Justinian made a considerable change in this branch
of law ; he required that ascendants should not only leave descendants
the portio (and vice versa) but should institute them heirs, exheredation
being allowed only for definite reasons (of which more than a dozen are
specified in the enactment), and the reason in the particular case being
required to be stated in the will. Violation of this new rule entailed
avoidance of the actual institution, the intestate heirs taking the place of

a84 INSTITUTIONUM LIBRI QUATTUOR. [Lib. 11.

plures, quibus agere de inofficioso testamento permittitur, una
quarta eis dari possit, ut pro rata distribuatur eis, id est pro
virili portione quarta.

XIX.

DE HEREDUM QUALITATE ET DIFFERENTIA.

Heredes autem aut necessarii dicuntur aut sui et necessarii
1 aut extranei. Necessarius heres est servus heres institutus :
ideo sic appellatus, quia, sive velit sive nolit, omnimodo post
mortem testatoris protinus liber et necessarius heres fit. unde
qui facultates suas suspectas habent, solent servum suum primo
aut secimdo vel etiam ulteriore gradu heredem instituere, ut,
si creditoribus satis non fiat, potius eius heredis bona quam
ipsius testatoris a creditoribus possideantur vel distrahantur vel

the institutus; in other respects the dispositions of the will were not
aflfected. It was not necessary that the amount in which an ascendant
or descendant was instituted should be equivalent to his due share. This
enactment made no change in respect of the reciprocal rights of brother
and sister, but it altogether excluded ascendants and descendants from
the old querella : if not instituted at all, they took the place of the heir
instituted, the will in other respects remaining good (c. 3. 14) : if instituted
in less than they were entitled to, they sued the heir for the balance
(c. 5. pr.).

Tit. XIX. § 1. Only servi of the testator's own (proprii) could be
necessarii heredes, including also a free person in mancipio to him, who,
however, was entitled, like sui, to the beneficium abstinendi, referred to
in § 2 inf. (Gains ii. 160). As appears from Tit. 15. pr. supr., it was
usual for testators, if they had the least reason to suspect their circum-
stances to be embarrassed, to appoint one or more of their own slaves
as final substituti, whereby they were saved from intestacy and posthu-
mous insolvency : and by the lex Aelia Sentia the testamentary manu-
mission and institution of a slave was allowed for this purpose even in
fraudem creditorum, Gaius i. 21, Cod. 6. 27. 2. Under the bankruptcy
system called venditio bonorum (Poste's Gaius p. 340 and notes) the
bankrupt had become infamis, but in Justinian's time only fraudulent
bankruptcy operated thus. The first stage in such proceedings was to
obtain a decree from the praetor of missio in possessionem (bonorum)
rei servandae causa : ultimately the property was sold in lots (bonorum
distractio, whence distrahantur in the text) and the proceeds divided
among the creditors according to their proved claims ; see on Bk. iii.
12 inf.

The privilege which a necessarius heres enjoyed of being liable for

Tit. 19.] DE HEREDUM QUALITATE ET DIFFERENTIA. 285

inter eos dividantur. pro hoc tamen incommodo illud ei com-
modum praestatur, ut ea, quae post mortem patroni sui sibi
adquisierit, ipsi resei'ventur : et quamvis non sufficiant bona
defunct! creditoribus, iterum ex ea causa res eius, quas sibi
adquisierit, non veneunt. Sui autem et necessarii heredes2
sunt veluti filius filia nepos neptisque ex filio et deinceps
ceteri liberi, qui modo in potestate morientis fuerint, sed ut
nepos neptisve sui heredes sint, non sufficit eum eamve in
potestate avi mortis tempore fuisse, sed opus est, ut pater eius
vivo patre suo desierit suus heres esse aut morte interceptus
aut qualibet alia ratione liberatus potestate : tunc enim nepos
neptisve in locum patris sui succedit. sed sui quidem heredes
ideo appellantur, quia domestici heredes sunt et vivo quoque
patre quodammodo domini existimantur. unde etiam, si quis
intestatus mortuus sit, prima causa est in successione liberorum.
necessarii vero ideo dicuntur, quia omnimodo, sive velint sive
nolint, tam ab intestato quam ex testamento heredes fiunt.

the testator's debts only so far as the estate went, is called beneficium
separationis, 'item sciendum est necessarium heredem servum cum
libertate institutum impetrare posse separationem, scilicet ut, si non
attigerit bona patroni, in ea causa sit, ut ei quicquid postea adquisierit
separetur, sed et si quid ei a testatore debetur' Dig. 42. 6. i. 18. Gaius
(ii. 155) says that he was not entitled to keep for himself anything which
' ei ex hereditaria causa fuerit adquisitum.*

§ 2. With the description of sui as domestici heredes cf. Plautus,
Trinum. 2. 2. 48, where a son says to his father * de meo : nam quod
tuum'st, meum'st,' cf. also Terence, Heaut. i. i. 79, Cic. in Verr. 2. i. 44
*quibuscum (i. e. ex liberis) vivi bona partimur,* Pliny, Paneg. n^
Ausonius, Idyl. 3. 3.

This * beneficium abstinendi ' exempted a suus heres from all liability
for his pater's debts, *si se hereditati non immiscuerit,* i.e. if he did
nothing from which acceptance of the hereditas could be inferred ; * ut
quamvis creditoribus hereditariis lure civili teneantur, tamen in eos actio
non detur, si velint derelinquere hereditatem ' Dig. 29. 2. 57. pr. ; and a
suus heres who was a minor was not prejudiced even by such ' immix-
tion,' § 5 inf.. Dig. 29. 2. 57. pr. and i. The result of this privilege was
practically to assimilate the suus et necessarius heres to an extraneus ;
consequently, he could, like the latter, be compelled by the magistrate to
decide within a prescribed time whether he meant to avail himself of it
or not, Dig. 28. 8. 7. pr.. Cod. 6. 30. 19. If he did, he was treated as if he
was not really heir at all; he had merely 'nudum nomen heredis' Dig.
38. 17. 2. 8y 'hunc qui abstinuit praetor non habet heredis loco' Dig. ii«
I. 12. pr. Consequently, the bonorum possessio became delata, in the

2,86 INSTITUTIONUM LIBRl QUATTUOR. [Lib. II.

sed his praetor permittit volentibus abstinere se ab hereditate,
ut potius parentis quam ipsorum bona similiter a creditoribus
possideantur.

3 Ceteri, qui testatoris iuri subiecti non sunt, extranei heredes
appellantur. itaque liberi quoque nostri, qui in potestate nostra
non sunt, heredes a nobis instituti extranei heredes videntur.
qua de causa et qui heredes a matre instituuntur, eodem
numero sunt, quia feminae in potestate liberos non habent.
servus quoque a domino heres institutus et post testamentum

4 factum ab eo manumissus eodem numero habetur. In extra-
neis heredibus illud observatur, ut sit cum eis testamenti factio,
sive ipsi heredes instituantur sive hi qui in potestate eorum sunt,
et id duobus temporibus inspicitur, testamenti quidem facti, ut
constiterit institutio, mortis vero testatoris, ut effectum habeat
hoc amplius et cum adit hereditatem, esse debet cum eo
testamenti factio, sive pure sive sub condicione heres institutus
sit: nam ius heredis eo vel maxime tempore inspiciendum
est, quo adquirit hereditatem. medio autem tempore inter
factum testamentum et mortem testatoris vel condicionem
institutionis existentem mutatio iuris heredi non nocet, quia
ut diximus tria tempora inspici debent. testamenti autem
factionem non solum is habere videtur, qui testamentum facere
potest, sed etiam qui ex alieno testamento vel ipse capere potest
vel alii adquirere, licet non potest facere testamentum. et ideo
et furiosus et mutus et postumus et infans et filius familias et
servus alienus testamenti factionem habere dicuntur : licet enim
testamentum facere non possunt, attamcn ex testamento vel

5 sibi vel alii adquirere possunt. Extraneis autem heredibus
deliberandi potestas est de adeunda hereditate vel non adeunda.

first instance, to the substituti, Dig. 42. i. 44, and in default of these to
the heredes ab intestato in their several degrees of proximity, and in the
last resort to the fiscus. The beneficium abstinendi passed to the heirs of
the instituted suus, Dig. 29. 2. 7. i, Cod. 6. 30. 19.

§ 4. For * testamenti factio passiva ' see on Tit. 14. pr., Tit. 17. 6 supr.

§ 6. By the civil law the institutus was not bound to accept or decline
the hereditas within any definite time, though such a period was often
fixed by the testator, non-acceptance within which caused forfeiture of
delatio to the substituti. Where this was done, both the prescribed
interval and the signification of acceptance were called cretio, Gaius ii.
J64 ; the latter was required to be made in a recognized form (ib. 166)

Tit. 19.] DE HEREDUM QUALITATE ET DIFFERENTIA. 287

sed sive is, cui abstinendi potestas est, immiscuerit se bonis
hereditariis, sive extraneus, cui de adeunda hereditate deli-

and before witnesses (Varro, de ling. Lat. 6. 81, Cic. ad Att 13. 46). Two
kinds of cretio were distinguished, vulgaris (Gaius ii. 171. 2), by which
the institutus was bound to accept within so many days only after he
knew of his institution and was able to make aditio, and continua (Gaius
ii. 172, 3), which was not so favourable to the institutus, because the
time began to run immediately on the testator's decease, and might have
wholly elapsed before he was able to take advantage of his rights or
was even aware of them. The solemn forms of cretio, which are pre-
served by Gaius, were abolished A.D. 407 by Honorius and Arcadius,
Cod. 6. 30. 17, though of course this did not in any way prevent testators
from still making the institution conditional on acceptance within a fixed
time from the date of decease.

But though no rule of law required a reasonably prompt aditio, it was
always open to the deceased's creditors (and we may add to legatees,
fideicommissarii, substituti, and other persons jointly instituted. Cod. 6.
30. 9) to petition the praetor to fix a time within which it must be made,
' solet praetor, postulantibus hereditariis creditoribus, tempus constituere,
intra quod si velit adeat hereditatem ; si minus, ut liceat creditoribus bona
defunct! vendere' Gaius ii. 167. The interval so fixed was called *spa-
tium deliberandi : ait praetor, si tempus ad deliberandum petet, dabo '
Dig. 28. 8. 1. 1. Under Justinian no longer than nine months might be
allowed for this purpose, though this might be extended to a year upon
personal petition to the Emperor, Cod. 6. 30. 9, and he also entirely ^
altered the legal position of the institutus by enacting that by doing
nothing in the way of either refusal or acceptance within the time
allowed he lost not the latter right but the former. Cod. 6. 30. 22. 14.
An institutus whose title was threatened by querella inofficiosi was re-
quired to accept within six months, or within twelve if he and the '
claimant resided in different jurisdictions, Cod. 3. 28. 36. 2. Bonorum
possessio (as contrasted with the hereditas) had in every case to be
accepted within a fixed limit of time, a year being allowed to ascendants
and descendants, and a hundred days to all other persons, Bk. iii. 9.
9 and 10 inf.

By the act of acceptance the interval which had elapsed since the
decease was held by a fiction to be obliterated; *heres quandoque
adeundo hereditatem iam tunc a morte successisse defuncto intellegitur *
Dig. 29. 2. 54. The effect of acceptance (until Justinian) had been to
produce a confusio between the proprietary relations of the deceased
and those of the heir ; what had been two properties, two sets of rights
of action, two sets of liabilities, were now combined in one ; hence debts
which either owed to the other were cancelled, ' si debitor heres creditori
extiterit, confusio hereditatis perimit petitionis actionem' Dig. 46. 3. 75,
and iura in re which the one had enjoyed over the property of the other
were extinguished. Dig. 18. 4. 2. 18 and 19 ; cf. (2) p. 221 supr. But pos- ^

a88 INSTITUTIONUM LTBRI QUATTUOR. [Lib. II.

berare licet, adierit, postea relinquendae hereditatis facultatem
non habety nisi minor sit annis viginti quinque : nam huius

session did not pass to the heir without an independent apprehensio by
him, ' quia hereditas in eum id tantum transfundit, quod est hereditatis :
non fuit autem possessio hereditatis' Dig. 47. 4. i. 15.

Subject to the exceptions noticed in the text, the acceptance was
irrevocable. The heir might have been mistaken in his estimate of the
assets and liabilities of the deceased, but having once taken upon him-
self the universitas iuris, he could not get rid of it : semel heres, semper
heres. He thus became as fully liable for the deceased's debts as
though he had contracted them himself, ^hereditas autem quin obliget
nos aeri alieno etiamsi non sit solvendo plus quam manifest um est'
Dig. 29. 2. 8. pr. Und^r such circumstances the hereditas was said to be
damnosa, Dig. 17. I. 32 ; 29. 2. 57. i ; but if its solvency appeared doubt-
ful, the institntus could protect himself by making an arrangement with
the creditors before acceptance, by which the latter resigned any claims
which they might have against the estate beyond its actual value; he
then accepted as their agent and mandatary, and could recover from
them any loss which he might sustain in so doing. Dig. 17. i. 32 : the
creditors might even agree by resolution to accept so much in the pound,
and here the majority bound the minority, Dig. 2. 14. 7. 17, ib. 8-10 pr.
Conversely, the creditors of the deceased might suspect that though the
latter's assets were sufficient to meet all their claims, they would not,
even with the heir's own property, suffice to pay the latter's debts also ;
in such a case as this they were entitled to apply within five years to
the praetor for a separatio bonorum, the effect of which was to prefer
their own rights against the bona separata to those of the heir's own
creditors, though they forfeited all claim to any subsequent payment
from the heir's own property, should the separated portion prove in fact
insufficient for their satisfaction, Dig. 42. 6. i. I. The heir, however, is
bound by his testator's dispositions. He may in his will have done more
than institute an heir; he may have given legacies or fideicommissa,
left instructions as to his funeral, appointed guardians to his children
and settled the arrangements for their education, forbidden alienation of
certain res hereditariae, and so forth. All these dispositions are valid
and binding on the heir.

When there are two or more joint heirs, the hereditas passes to them
collectively, as a whole ; there is said to be a communio in it between
them, but to each of them individually it passes only pro rata; each
coheres is not liable for the testator's debts in full, but only in the same
ratio in which he is instituted, the liabilities being divided between them
ipso iure, Cod. 3. 36. 3. Division of course would usually take place by
arrangement, but if any one refused to concur, he could be compelled
by the actio familiae erciscundae, to which also he could resort if he
thought he was being unfairly treated by his coheirs, 'haec actio pro-
ficiscitur ex lege duodecim tabularum, namque coheredibus, volentibus a

Tit. 19O DE HEREDUM QUALITATE ET DIFFERENTIA. ^89

aetatis hominibus sicut in ceteris omnibus causis deceptis, ita
et si temere damnosam hereditatem susceperint, praetor suc-
currit. Sciendum tamen est divum Hadrianum etiam maiori 6
viginti quinque annis veniam dedisse, cum post aditam here-
ditatem grande aes alienum, quod aditae hereditatis tempore
latebat, emersisset. sed hoc divus quidem Hadrianus speciali
beneficio cuidam praestitit : divus autem Gordianus postea in
militibus tantummodo hoc extendit : sed nostra benevolentia
commune omnibus subiectis imperio nostro hoc praestavit

communione discedere, necessarium videbatur aliquam actionem con-
stitui, qua inter eos res hereditariae distribuerentur ' Dig. 10. 2. i pr.
Sometimes a coheres could not claim a division without bringing into
the inheritance certain property of his own (collatio bonorum). This
practice had originated in the praetorian bonorum possessio, whether
contra tabulas or ab intestato ; the praetor would not admit emancipati
to share the estate with their unemancipated brothers and sisters unless
they brought into ' hotchpot ' all that they had acquired for themselves
since their own release from potestas, Dig. 37. 6. i. 14. The Emperors,
especially A. Pius and Leo, further developed the obligation, requiring
that where a number of descendants succeeded jointly to a common
ascendant, each female should bring in the dos which she had received
from the latter (dotis collatio), and the rule was subsequently extended to
much other property which descendants of either sex had received from
the common ascendant in his lifetime, Dig. 37. 6.

For the relief of minors by in integrum restitutio see on Bk. iv. 6. 33 inf.

§ 6. For the privilege of soldiers cf. Cod. 6. 30. 22. pr. and 15 'milites,
etsi propter simplicitatem praesentis legis subtilitatem non observaverint,
in tantum tamen teneantur, quantum in hereditate invenerint.'

By the important change to which he here alludes Justinian effected a
complete reformation in the Roman law of inheritance, so far as relates
to the character and liabilities of the heres. As Mr. Hunter says (Roman
Law p. 574), Mt was a bold and successful stroke to convert the heir into
a mere official, designated by the deceased for the purpose of winding up
his affairs and distributing his property. The heir was now a mere
executor, with the privilege of being residuary legatee, and if the testator
did not forbid it, of retaining the Falcidian fourth.'

By this enactment (Cod. 6. 30. 22) Justinian gave the person to whom
the hereditas was delata, whether ab intestato or under a will, the option
between applying for a spatium deliberandi, and making a complete
inventory of the property of the deceased. If he chose the latter, he
must, with the assistance of a notary and a prescribed number of witnesses
representing the creditors and legatees, begin the inventory within one
month of his becoming aware of his right, and finish it within two months
more : if, however, he was at a distance, he was allowed a year ; Cod. 6.
30. 22. 2 and 3. During this interval neither creditors nor legatees might

U

290 INSTITUTIONUM LIBRI QUATTUOR. [L1>. II.

beneiicium et constitutionem tam aequissimam quam nobilem
scripsit, cuius tenorem si observaverint homines, licet eis adire
hereditatem et in tantum teneri, in quantum valere bona
hereditatis contingit : ut ex hac causa neque deliberationis
auxilium eis fiat necessarium, nisi omissa observatione nostrae
constitutionis et deliberandum existimaverint et sese veteri
7 gravamini aditionis supponere maluerint. Item extraneus
heres testamento institutus aut ab intestate ad legitimam here-
ditatem vocatus potest aut pro herede gerendo vel etiam nuda
voluntate suscipiendae hereditatis heres fieri, pro herede
autem gerere quis videtur, si rebus hereditariis tamquam heres
utatur vel vendendo res hereditarias aut praedia colendo lo-
candove et quoquo modo si voluntatem suam declaret vel re

molest him in any way, though at its termination they could require him
to swear to the accuracy of the inventory, which he also had to sign. By
selecting this procedure, the heir was exempted from all liability beyond
the assets of the deceased. Cod. loc. cit. 4, and also from the obligation of
ascertaining rights of priority, etc. among creditors ; these and legatees
were to be paid in the order in which they applied to him, and if the
assets were exhausted unpaid creditors might resort to paid legatees, Cod.
ib. 4-6, 8. The universitas iuris in feet no longer passed to the heir:
there was no confusio between his proprietary relations and those of the
deceased, so that iura in re aliena and debts were no longer affected in
the way described, p. 288 supr.. Cod. ib. 9.

If the institutus or person entitled preferred to apply for a spatium
deliberandi, his old liabilities remained, ib. 14 : even in this case he must
make an inventory ; if he did not, and accepted the inheritance, he lost
his right to the Falcidian fourth, and must pay legacies and fideicommissa
in full. The practical result, as Mr. Hunter remarks, was that if there
was any doubt as to the solvency of the hereditas, th^ heir was compelled
to make an inventory.

§ 7. No form was at any time prescribed by law for acceptance of an
' inheritance, though before the abolition of cretiones (note on § 5 supr.)
a formal acceptance might have been required by the testator- The
mere intention to accept, provided it was evidenced by words or acts
(pro herede gestio), was sufficient. It might not, however, be partial
(* sed et si quis ex pluribus partibus in eiusdem hereditate institutus sit,
non potest quasdam partes repudiare, quasdam agnoscere' Dig. 29. 2. ^),
or conditional, for hereditatis aditio was an actus legitimus : ' sed et si
quis ita dixerit, si solvendo hereditas est, adeo hereditatem, nulla aditio
est * Dig. ib. 51. 2. It would seem that aditio itself could not be made on
behalf of the institutus by an agent. Dig. 36. i. 65. pr. ; though this rule
admitted of exceptions in favour of juristic persons, Dig. 36. i. 6. 4,
infents. Cod. 6. 30. 18. pr., and those of weak intellect. Cod. 5. 70. 7. pr.,

Tit. 30.] DE LEGATIS. 29I

vel verbis de adeunda hereditate, dummodo sciat eum, in cuius
bonis pro herede gerit, testato intestatove obiisse et se ei
heredem esse, pro herede enim gerere est pro domino gerere :
veteres enim heredes pro dominis appellabant. sicut autem
nuda voluntate extraneus heres fit, ita et contraria destinatione
statim ab hereditate repellitur.* eum, qui mutus vel surdus
natus est vel postea factus, nihil prohibet pro herede gerere et
adquirere sibi hereditatem, si tamen inteilegit quod agitur.

XX.

DE LEGATIS.

Post haec videamus de legatis. quae pars iuris extra pro-
positam quidem materiam videtur : nam loquimur de his iuris
figuris, quibus per universitatem res nobis adquiruntur. sed
cum omnino de testamentis deque heredibus qui testamento
instituuntur locuti sumus, non sine causa sequenti loco potest
haec iuris materia tractari.

Legatum itaque est donatio quaedam a defuncto relicta. 1
Sed olim quidem erant legatorum genera quattuor : per vindi- 2

and the declaration of acceptance might be made by an agent always,
Dig. 36. I. 65. 3. Before delatio a person could not bind himself by
either acceptance or repudiation, but after delatio either determination,
when once manifested, was irrevocable, Cod. 6. 31.

For the mode in which bonorum possessio was obtained see Bk. iii.
9. 10 inf.

Tit. XX. 1. Hereditas is universal succession, sometimes under a will,
sometimes ab intestato: legatum is singular succession, under a will
only, to a part, directly or indirectly, of the testator's property : ' legatum
est delibatio hereditatis, qua testator ex eo, quod universum heredis
foret, alicui quid collatum velit' Dig. 30. 116. pr. Historically, the idea
of legacy is inseparable from that of testamentum ; a legacy can be
charged only on a testamentary heir, and only through the will itself,
Tit. 23. 10 inf. : no legatee is entitled unless some one accepts under the
testamentum : no one can be a legatee who has not testament! factio
passiva (note on Tit. 14. pr. supr.) ; the words in which a legacy is given
must be formal, imperative, and in the Latin tongue (civilia verba) ;
' legatum est, quod legis modo, id est imperative, testamento relinquitur :
nam ea, quae precativo modo relinquuntur, iideicommissa vocantur'
Ulpian, reg. 24. i.

§ 2. The four formulae, alluded to here, in which legacies could be
given under the older law, are described at length in Gains ii. 192-223,

U %

2g% INSTITUTIONUM LIBRI QUATTUOR. [Lib. If.

cationem, per damnationem, sinendi modo, per praeceptionem :
et certa quaedam verba cuique generi legatorum adsignata
erant, per quae singula genera legatorum significabantur. sed
ex constitutionibus divorum principum soUemnitas huiusmodi
verborum penitus sublata est. nostra autem constitutio, quam
cum magna fecimus lucubratiOne, defunctorum voluntates vali-
diores esse cupientes et non verbis, sed voluntatibus eorum
faventes, disposuit, ut omnibus legatis una sit natura et, qui-
buscumque verbis aliquid derelictum sit, liceat legatariis id
persequi non solum per actiones personales, sed etiam per in
rem et per hypothecariam : cuius constitutionis perpensum
modum ex ipsius tenore perfectissime accipere possibile est.

and Ulpian, reg. 24. 2-13. They differed from one another, inter cUia^
(i) in respect of the property which could be given by them respectively.
Nothing could be given per vindicationem, with small exceptions, which
did not belong to the testator ex iure Quiritium at the time both of the
execution of the will and of his decease ; a legacy sinendi modo might
comprise property of the heir as well as of the testator: per dam-
nationem could be given property belonging to any one, the heir being
bound, if possible, to procure and convey it to the legatee ; see § 4 inf.
(2) In respect of the remedy available to the legatee : if the disposition
were made per vindicationem or praeceptionem, he could recover by
real action : if sinendi modo, it was doubted whether the heir was under
any active obligation at all, Gaius ii. 213-14 : if per damnationem, the
remedy was in personam only. (3) In respect of the effect of a gift
of the same thing to two or more persons disiunctim, Gaius ii. 20$.
The importance of these distinctions of form was much reduced by the
SC. Neronianum, A.D. 64, which apparently enacted that whichever of
the four formulae was actually employed, it should be construed as
though it were that most favourable to the legatee, i.e. per damnationem :
* SC**. Neroniano cautum est, ut quod minus aptis (or ratis) verbis legatum
est, perinde sit ac si optimo iure legatum esset : optimum autem ius
legati per damnationem est' Ulpian, reg. 24. 11 : its effect was thus to
render valid legacies left in one of the other three forms which previously
would have been void : Gaius ii. 197. 212. 218. Some hundreds of years
later testators were enabled by an enactment of Constantius, a.d. 339, to
give legacies in any words they chose, whether Greek or Latin, Cod. 6.
37. 21. Justinian's own regulations, mentioned in this and the following
sections, assimilated the civil law bequest (legatum) so far as was possible
to fideicommissa, the nature of which will appear from Tits. 23 and 24 inf.
Any legal superiority which either had possessed over the other was in
future to be common to both, and the object of a bequest, whether
technically a legatum or a fideicommissum, was to be recoverable by the
beneficiary by the most appropriate remedy, real or personal. The

Tit. aoj DE LEGATIS. ^93

Sed non usque ad earn constitutionem standum esse existi- 3
mavimus. cum enim antiquitatem invenimus legata quidem
striate concludentem, fideicommissis autem, quae ex voluntate
m^is descendebant defunctorum, pinguiorem naturam indul-
gentem: necessarium esse duximus omnia legata fideicom-
missis exaequare, ut nulla sit inter ea differentia, sed quod
deest legatis, hoc repleatur ex natura fideicommissorum et, si
quid amplius est in legatis, per hoc crescat fideicommissi
natura. sed ne in primis legum cunabulis permixte de his
exponendo studiosis adulescentibus quandam introducamus
difficultatem, operae pretium esse duximus interim separatim
prius de legatis et postea de fideicommissis tractare, ut natura
utriusque iuris cognita facile possint permixtionem eorum
eruditi suptilioribus auribus accipere.

Non solum autem testatoris vel heredis res, sed et aliena4
legari potest : ita ut heres cogatur redimere eam et praestare
vel, si non potest redimere, aestimationem eius dare, sed si
talis res sit, cuius non est commercium, nee aestimatio eius
debetur, sicuti si campum Martium vel basilicas vel templa
vel quae publico usui destinata sunt legaverit: nam nuUius
momenti l^atum est. quod autem diximus alienam rem
posse legari, ita intellegendum est, si defunctus'sciebat alienam
rem esse, non et si ignorabat : forsitan enim, si scisset alienam,
non legasset. et ita divus Pius rescripsit. 'et verius est ipsum
qui agit, id est legatarium, probare oportere scisse alienam
rem legare defunctum, non heredem probare oportere ignorasse

legatee acquired a real right to the res legata in every case where it
belonged to the testator, unless indeed the testator himself expressed a
contrary intention, Cod. 6. 43. i ; and in no other ; he acquired a personal
right against the heir in every case, and this was secured by a statutory
hypotheca, first given by Justinian himself, over everything which the
person on whom the legacy or fideicommissum was charged had himself
received from the inheritance. Cod. 6. 43. i. 2.

§ 8. For the principal original differences between legacies and fidei-
commissa see on Tit. 23. i inf.

§ 4. The true rule, of which only an illustration is afforded by the
legacy of a res extra commercium, is that the act which the heres has to
perform in favour of the legatee must be both physically possible and
legally permitted: as, he cannot convey to the latter a res extra com-
mercium, so he ought not to be compelled to pay him its value.

294 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

alienam, quia semper necessitas proband! incumbit illi qui agit.

5 Sed et si rem obligatam creditori aliquis legaverit, necesse
habet heres luere. et hoc quoque casu idem placet, quod in
re aliena, ut ita demum luere necesse habeat heres, si sciebat
defunctus rem obh'gatam esse: et ita divi Severus et Anto-
ninus rescripserunt. si tamen defunctus voluit legatarium luere

6 et hoc expressit, non debet heres earn luere. Si res aliena
legata fuerit et eius vivo testatore legatarius dominus factus
fuerit, si quidem ex causa emptionis, ex testamento actione
pretium consequi potest : si vero ex causa lucrativa, veluti ex
donatione vel ex alia simili causa, agere non potest, nam
traditum est duas lucrativas causas in eundem hominem et in
eandem rem concurrere non posse, hac ratione si ex duobus
testamentis eadem res eidem debeatur, interest, utrum rem an
aestimationem ex testamento consecutus est: nam si rem,
agere non potest, quia habet eam ex causa lucrativa, si aesti-

7 mationem, agere potest. Ea quoque res, quae in rerum
natura non est, si modo futura est, recte legatur, veluti fructus
qui in illo fundo nati erunt, aut quod ex ilia ancilla natum

8 erit. Si eadem res duobus legata sit sive coniunctim sive
disiunctim, si ambo perveniant ad legatum, scinditur inter eos
legatum : si alter deficiat, quia aut spreverit legatum aut vivo
testatore decesserit aut alio quolibet modo defecerit, totum ad
collegatarium pertinet. coniunctim autem legatur, veluti si

§ 6. The maxim 'duas lucrativas causas in eundem hominem et in
eandem rem concurrere non posse' may be otherwise stated thus: if
the res legata already belongs to the legatee when the dies legati cedit
(Dig. 30. 82. pr.), the latter can daim its value from the heir only if and
so far as he obtained it after the execution of the will for valuable con-
sideration. If at that time it belonged to him, the disposition is void, un-
less he alienated it before the testator's death (Dig. 34. 7. i. 2), or unless his
own ownership was revocable (Dig. 30. 82. i), or, thirdly, unless the
testator or the heir had some real right over the object by which the
legatee could practically be deprived of its enjoyment (e.g. pignus,
usufruct, or emphyteusis), or a personal right by which he could be
forced to deliver it up, Dig. 30. 71. 5, ib. 39. 2.

§ 8. So far as the form per vindicationem is concerned, the rule as to
legacy of the same thing disiunctim to two or more persons is similarly
stated by Gaius ii. 199, but in § 205 he adds ' si eadem res duobus pluri-
busve per danmationem legata sit . . . disiunctim, sing^is solida res
debetur, ut scilicet heres alteri rem, alteri aestimationem eius praestare

Tit. ao.] DE LEGATIS. 295

quis dicat ' Titio et Seio hominem Stichum do lego : ' dis-
iunctim ita ' Titio hominem Stichum do lego, Seio Stichum
do lego/ sed et gi expresserit 'eundem hominem Stichum/

debeat/ In this point the SC. Neronianum appears not to have operated
at all : otherwise it is difficult to see how the rule did not become
exactly the contrary of that which is here stated in the text. Justinian
enacted that in no case should co-legatees of the same thing be entitled,
the one to it, the other or rest to its value, * nisi testator apertissime et
expressim disposuerit, ut uni quidem res solida, aliis autem aestimatio
rei singulis in solidum praestetur' Cod. 6. 51. i. 11. As Gaius remarks
(ii. 206), an important modification was made in the law of accrual
between co-heirs and ce-legatees by the leges lulia and Papia Poppaea,
for which see on Tit. 14. pr. supr. ; these statutes, however, were no
longer in force under Justinian, who speaks of the caducitas which they
introduced as altogether abolished from his system, Cod. 6. 51. i. i.

Two or more persons are said to be co-heirs or co-legatees when
the same thing is given to both or all of them. As to the technical ex-
pressions or modes by which testators could effect such conjunction, we
must at the outset exclude what is called conjunction ' verbis,* in which
each of the apparently conjoined heirs or legatees is in fact given some-
thing different from the other or rest, *item verbis, non etiam re [con-
iuncti videntur] : Titio et Seio fundum acquis partibus do lego* Dig. 32.
89; here Titius and Seius are not co-legatees in the proper sense, for
what is bequeathed to them is not the same thing, but equal shares in
the same thing, i. e. different things, or, as Pomponius puts it in Dig. 28.
5. 66 ' quia non tam coniunxisse quam celerius dixisse videatur.' In such
cases, as there is no true conjunction, the ius adcrescendi has no applica-
tion. Genuine conjunction, in which the co-heirs or co-legatees, though
limiting one another's rights, are regarded as against other heirs or
legatees as one person (coniunctim heredes institui, and 'coniunctim
legari, hoc est, totam hereditatem et tota legata singulis data esse,
partes autem concursu fieri ' Dig. 32. 80), could be produced in two ways,
(i) *re et verbis (the coniunctim of the text) : nee dubium est, quin con-
iuncti sint, quos et nominum et rei complexus iungit ; veluti Titius et
Maevius ex parte dimidia heredes sunto : vel ita, Titius Maeviusque
heredes sunto : vel, Titius cum Maevio ex parte dimidia heredes sunto.
Videamus autem ne, etiamsi hos articulos detrahas, et, que, cum inter-
dum tamen coniunctos accipi oporteat, veluti, Lucius Titius, Publius
Maevius ex parte dimidia heredes sunto, vel ita : P. Maevius, L. Titius
heredes sunto : Sempronius ex parte dimidia heres esto, ut Titius et
Maevius veniant in partem dimidiam, et re et verbis coniuncti videantur '
Dig. 50. 16, 142 ; (2) * re (the disiunctim of the text) ; re coniuncti viden-
tur, non etiam verbis, cum duobus separatim eadem res legatur' Dig. 32.
89 ; for this mode of conjoining heirs see Dig. 50. 16. 142.

The general rule of accrual between co-legatees is tersely stated in the
text, though there was some difference according to the form employed.

296 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

9 aeque disiunctim legatum intellegitun Si cui fundus alienus
legatus fuerit et emerit proprietatem detracto usu fructu et
usus fructus ad eum pervenerit et postea ex testamento agat,
recte eum agere et fundum petere lulianus ait, quia usus fruc-
tus in petitione servitutis locum optinet : sed officio iudicis
contineri, ut deducto usu fructu iubeat aestimationem praestari.

10 Sed si rem legatarii quis ei legaverit, inutile legatum est, quia
quod proprium est ipsius, amplius eius fieri non potest : et
licet alienaverit eam, non debetur nee ipsa nee aestimatio eius.

11 Si quis rem suam quasi alienam legaverit, valet legatum : nam
plus valet, quod in veritatq est, quam quod in opinione. sed
et si legatarii putavit, valere constat, quia exitum voluntas

12 defuncti potest habere. Si rem suam legaverit testator post-
eaque eam alienaverit, Celsus existimat, si non adimendi
animo vendidit, nihilo minus deberi, idque divi Severus et
Antoninus rescripserunt. idem rescripserunt eum, qui post
testamentum factum praedia quae legata erant pignori dedit,
ademisse legatum non yideri et ideo legatarium cum herede

If they were conjoined re, i. e. disiunctim, and one or more of them failed
to take, the accrual operated ipso iure : there was no right of refusal
in those who took, and who consequently were unaffected by any fidei-
conmiissa or other burdens imposed by. the testator on those who had
fiEiiled : if they were conjoined re et verbis, they had the option of re-
fusing the shares of those who failed, or of taking them subject to such
charges, Cod. 6. 51. i. ii.

§ 9. That by * pervenerit ' is meant ' has come by a lucrativa causa ' is
clear from the passage of Julianus referred to, ^ fundus mihi legatus est :
proprietatem eius fundi redemi, detracto usufructu : postea venditor
capite minutus est ([8], p. 222 supr.), et ususfnictus ad me pertinere coepit :
si ex testamento egero, iudex tanti litem aestimare debebit, quantum mihi
aberit. (Marcellus.) idem erit, et si partem redemero, pars mihi legata
aut donata sit : partem enim duntaxat petere debebo ' Dig. 3a 82. 2 and 3.

§ 10. Cf. Bk. iv. 6. 14 inf. For the principle (regula Catoniana) upon
which a legacy of this kind was void see on § 32 inf.

§ 11. It is difficult to see why the rule *plus valet quod in veritate est
quam quod in opinione * did not apply to legacy of a res aliena which
the testator thought was sua, which in § 4 supr. is said to be void : cf.
also Dig. 29. 2. 15 'plus est in opinione quam in veritate.*

§ 12. The generally received opinion in Gaius' time (ii. 198) was that
such a legacy was void, unless given per damnationem, and even then
the heir on being sued could repel the legatee by exceptio doli : cf.
Pomponius in Dig. 30. 8. pr. *si partem alienasset, partem duntaxat . . .
deberi.'

Tit. 20.] DE LEGATIS. 297

agere posse, ut praedia a creditore luantur. si vero quis par-
tem rei legatae alienaverit, pars quae non est alienata omni-
modo debetur, pars autem alienata ita debetur, si non adi-
mendi animo alienata sit. Si quis debitor! suo liberationem 13
legaverit, legatum utile est et neque ab ipso debitore neque
ab herede eius potest heres petere nee ab alio qui heredis loco
est : sed et potest a debitore conveniri, ut liberet eum. potest
autem quis vel ad tempus iubere ne heres petat. Ex con- 14
trario si debitor creditor! suo quod debet legaverit, inutile est
legatum, si niliil plus est in legato quam in debito, quia nihil
amplius habet per legatum. quodsi in diem vel sub condicione
debitum ei pure legaverit, utile est legatum propter repraesen-
tationem. quodsi vivo testatore dies venerit aut condicio
extiterit, Papinianus scripsit utile esse nihilo minus legatum,
quia semel constitit. quod et verum est : non enim placuit
sententia existimantium extinctum esse legatum, quia in eam
causam pervenit, a qua incipere non potest. Sed si uxori 15

§ 18. If the testator was himself the creditor, the debtor, under
Justinian, was usually released ipso facto by the legacy ; for his right to
compel the heir to release him cf. Dig. 34. 3. 3. 3 * agere, ut liberer per
acceptilationem.' if the creditor was some one else, the debtor could
compel the heir to pay the debt and so discharge him, Dig. ib. 8. pr., ib.
II and 14. If the supposed debt was non-existent, the legatee got
nothing; and the legacy was extinguished by extinction of the debt
during the testator*s lifetime.

§ 14. Where money due on a certain day, or on the fulfilment of a
condition, is paid before the time or the occurrence of the event
specified, the creditor is pro tanto better, the debtor pro tanto worse ^
off: this gain or loss is called interusurium, commodum or incommodun^
repraesentationis/ If a testator leaves to a supposed creditor the amount
of a non-existent debt, the legacy is void if the debt is simply referred to,
but if its amount is clearly specified it can be claimed, ^ si decern quae
Titio debeo legavero nee quicquam debeam, falsa demonstratio (§ 30 inf.)
non perimit legatum' Dig. 30. 75. i, cf. Dig. 31. 88. 10, and the next
section of this Title. The doctrine of Papinian here stated is not uni-
versally recognised in the Corpus iuris ; it is confirmed by Dig. 50. 17.
85. I, but is contradicted, in its general form, in Dig. 34. 8. 3. 2 'nam
quae in eam causam pervenerunt a qua incipere non poterant pro non
scriptis habentur,' and in its particular application in Dig. 31. 8a. pr.
(Paulus) 'dicendum erit inutile effici legatum, quanquam consdterit
ab initio.' For the technical meaning of dies venit in connection with
obligations see on § 20 inf.

§ 16. The advantages of the action on the legacy over the actio de

2g» INSTITUTIONUM LIBRI QUATTUOR. [Lib. IT.

maritus dotem legaverit, valet legatum, quia plenius est lega-
tum quam de dote actio, sed si quam non acceperit dotem
legaverit, divi Severus et Antoninus rescripserunt, si quidem
simpliciter legaverit, inutile esse legatum : si vero certa pecunia
vel certum corpus aut instrumentum dotis in praelegando de-

16 monstrata sunt, valere legatum. Si res legata sine facto heredis
perierit, legatario decedit. et si servus alienus legatus sine
facto heredis manumissus fuerit, non tenetur heres. si vero
heredis servus legatus fuerit et ipse eum manumiserit, teneri
eum lulianus scripsit, nee interest, scierit an ignoraverit a se
legatum esse, sed et si alii donaverit servum et is cui donatus
est eum manumiserit, tenetur heres, quamvis ignoraverit a se

17 eum legatum esse. Si quis ancillas cum suis natis legaverit,
etiamsi ancillae mortuae fuerint, partus legato cedunt. idem
est, si ordinarii servi cum vicariis legati fuerint, ut, licet mortui
sint ordinarii, tamen vicarii legato cedant. sed si servus cum
peculio fuerit legsttus, mortuo servo vel manumisso vel alienato
et peculii legatum extinguitur. idem est, si fundus insti-uctus
vel cum instrumento legatus fuerit : nam fundo ali^ato et

dote were that the heir could not claim th^ statutory interval of one year
before restitution, which was allowed in ordinary cases (which probably
is the explanation of ' praelegare,' so common in this form of legacy),
^ifi^* 33- 4- 1-2, and that certain sets-off were excluded which could be
pleaded in the action.

§ 17. The opposition of ordinarius to vicarii servi is found in Dig. 14.
4. 5. I ; 15. I. 17, ib. 19. pr. The former was a slave holding some defi-
nite post in his master's household, the latter were his assistants, and
usually formed part of his peculium: in fact, a slave often bought a
vicarius with part of his peculium to lighten his own duties, Horace,
Sat. 2. 7. 79 ; for the whole subject v. Becker*s Gallus.

For the difference between instructus and cum instrumento cf. Dig.
33. 7. 12. 27 'plus esse, cum instructus fundus legetur, quam si cum in-
strumento : . . . omnia, quae eo collata sunt, ut instructior esset pater-
familias, instructo contineri,' ib. pr. ' instrumentum [fundi] est apparatus
rerum diutius roansurarum, sine quibus exerceri nequiret possessio,' ib.
27. 16 'inter instrumentum et omamentum multum interesse, instru-
ment! enim ea esse, quae ad tutelam domus pertinerent, omamenti, quae
ad voluptatem.* Thus ' instrumentum involved the idea of a means to
an end, but that end was to get the use of the land ; it did not include
household furniture. Fundus instructus, although there was some variety
of opinion on the subject, seems to have been considered as including
not only instrumentum, but everything prepared for the comfort or

Tit. •JO.'] DE LEG AXIS. ^ 299

instrumenti l^atum extinguitur. Si grex legatus fuerit post- 18
eaque ad unam ovem pervenerit, quod superfuerit vindicari
potest. Grege autem legato etiam eas oves, quae post testa-
mentum factum gregi adiciuntur, legato cedere lulianus ait :
esse enim gregis unum corpus ex distantibus capitibus, sicuti
aedium unum corpus est ex cohaerentibus lapidibus : aedibus 19
denique legatis columnas et marmora, quae post testamentum
factum adiecta sunt, legato cedere. Si pecuHum legatum 20
fuerit, sine dubio quidquid peculio accedit vel decedit vivo
testatore, legatarii lucro vel damno est. quodsi post mortem
testatoris ante aditam hereditatem servus adquisierit, lulianus
ait, si quidem ipsi manumisso peculium legatum fuerit, omne,
quod ante aditam hereditatem adquisitum est, legatario cedere,
quia dies huius legati adita hereditate cedit : sed si extraneo
peculium legatum fuerit, non cedere ea legato, nisi ex rebus
peculiaribus auctum fuerit peculium. peculium autem nisi
legatum fuerit, manumisso non debetur, quamvis si vivus

pleasure of the owner. Such a legacy, therefore, includes the furniture
of the farmhouse, the clothes, gold, silver, wine, and utensils of the
testator, also the domestic slaves, the books and library, but not the
crop ready for the market.' Hunter, Roman Law p. 723 ; cf. Mr. Roby*s
edition of Dig. 7. i. pp. 74, 75.

§ 20. Dies cedit marks the commencement of a right, or the moment
at which it comes into existence : dies venit indicates the moment at
which it can first be enforced by action : * cedere diem significat, incipere
deberi pecuniam : venire diem significat, eum diem venisse, quo pecunia
peti possit' Dig. 50. 16. 213. Thus, if a man promises to pay 10/. this
day six months, he is bound, and the other party acquires a right to have
the money then, at once (dies cedit) : but he cannot be compelled to pay
until dies venit, i.e. until the six months have elapsed; Bk. iii. 15. 2 inf.
Originally, if the legatee outlived the testator, and the legacy was uncon-
ditional (or the condition, if there were one, had been fulfilled), dies cessit
immediately on the testator's decease : the right was acquired, and there-
fore passed to the legatee's heir even if he himself died immediately after
the testator: *si post diem legati cedentem legatarius decesserit, ad
heredem suum transfert legatum' Dig. 36. 2. 5. pr. This was altered by
the lex Papia Poppaea, which postponed dies cedit to the date of the
opening of the will, Ulpian, reg. 17. I, but the old law was restored by
Justinian, Cod. 6. 51. i c. If the legacy was conditional, dies cessit only
on the fulfilment of the condition : with rights arising ex contractu it was
different; see on Bk. iii. 15. 4 inf. Dies (legati) venit when the heir
accepted, unless of course the dies cedens was later owing to an unful-
fiUed condition, or unless a later day was fixed by the testator himself:

300 INSTITUTIONUM UBRI QUATTUOR. • [Lib. II.

manumiserit, sufficit, si non adimatur : et ita divi Severus et
Antoninus rescripserunt. idem rescripserunt peculio legato
non videri id relictum, ut petitionem habeat pecuniae, quam
in rationes dominicas impendit. idem rescripserunt pecuHum
videri legatum, cum rationibus redditis liber esse iussus est et

21 ex eo reliquas inferre. Tam autem corporales res quam incor-
porates legari possunt. et ideo et quod defuncto debetur,
potest alicui legari, ut actiones suas heres legatario praestet,
nisi exegerit vivus testator pecuniam : nam hoc casu legatum
extinguitur. sed et tale legatum valet : * damnas esto heres

22 domum illius reficere ' vel * ilium acre alieno liberare.' Si
generaliter servus vel alia res legetur, electio legatarii est, nisi

'omnia quae testamentis sine die vel conditione adscribuntur, ex die
aditae hereditatis praestentur' Dig. 31. 32. pr.

No acceptance of a legacy was necessary, in the sense that an institutus
could not become heir without aditio : but one could be declined, and if
this were done, the legatee was regarded as never having acquired any
right upon the testator's decease whatever, Dig. 30. 38. i.

If a slave's peculium was bequeathed to an extraneus, the latter^s rights
were fixed (dies cedit) at the testator's decease : he became entitled to
the amount of the peculium as it stood at that moment, but to nothing
which was subsequently added to it, as it were, from outside. But if the
slave, being manumitted by the will, was himself the legatee, his rights
were not fixed till aditio (an exception to the general rule), because unless
and until some institutus accepted his manumission did not take effect,
and being still a slave he could have no rights.

The words * et ex eo reliquas inferre ' at the end of the section are in-
terpreted by Theophilus as part of the rescript, not of the will : but it is
clear that they belong to the latter, the manumission being ex die, and
taking effect from the giving in of the slave's accounts with his master,
the adverse balance being made up out of his peculium, * et quod reli-
quum est . . . solvere debet' Dig. 35. I. iii.

§ 21. This is called legatum nominis, nomen being the technical term
' for what we call a chose in action. The legatee could sue the testator's
debtor by actio utilis. Cod. 6. 37. 18, and could also claim an express
assignment from the heres, Dig. 30. 44. 6. If the debtor paid the heir,
the latter could be compelled to transfer the amount so received to the
legatee : if payment were made to the testator in his lifetime, the legacy
became void unless the will clearly disclosed a contrary intention, Dig.
32. II. 13, ib. 64.

§ 22. Where a res non fungibilis (for which see on Bk. iii. 14. pr. inf.)

is bequeathed without further specification (e. g. a slave, a horse, a jewel)

^ it is technically called a legatum generis. Unless there was evidence of

a contrary intention, such legacies were valid only (i) if the inheritance

Tit, ao.l DE LEGATIS. 301

aliud testator dixerit. Optionis legatum, id est ubi testator ex 23
servis suis vel aliis rebus optare legatarium lusserat, habebat
in se condicionem, et ideo nisi ipse legatarius vivus optaverat,
ad heredem legatum non transmittebat sed ex constitutione
nostra et hoc in meliorem statum reformatum est et data est
licentia et heredi legatarii optare, licet vivus legatarius hoc non
fecit et diligentiore tractatu habito et hoc in nostra consti-
tutione additum est, ut, sive plures legatarii existant, quibus
optio relicta est, et dissentiant in corpore eligendo, sive unius
legatarii plures heredes, et inter se circa optandum disseittiant
alio aliud corpus eligere cupiente, ne pereat legatum (quod
plerique prudentium contra benevolentiam introducebant), for-
tunam esse huius optionis iudicem et sorte esse hoc dirimen-
dum, ut, ad quem sors perveniat, illius sententia in optione
praecellat.

L^ari autem illis solis potest, cum quibus testamenti factio 24
est. Incertis vero personis neque legata neque fideicommissa 25
olim relinqui concessum erat : nam nee miles quidem incertae
personae poterat relinquere, ut divus Hadrianus rescripsit.
incerta autem persona videbatur, quam incerta opinione
animo suo testator subiciebat, veluti si quis ita dicat : * qui-
cumque filio meo in matrimonium filiam suam coUocaverit, ei
heres meus ilium fundum dato : ' illud quoque, quod his relin-
quebatur, qui post testamentum scriptum primi consules de-
signati erunt, aeque incertae personae legari videbatur: et
denique multae aliae huiusmodi species sunt, libertas quoque

actually comprised a thing or things of the genus bequeathed, Dig. 30.
71. pr., and (2) if the genus was sufficiently definite : thus the legacy of
an estate is void, that of a house is valid, Dig. 23. 3. 69. 4 : 30. 71. pr.
Under the older law it would seem that as a general rule the l^atee had
the choice of the object if the bequest was per vindicationem, the heir if
it was per damnationem : but, as is said in the teict, under Justinian,
unless the testator directed otherwise, the election always rested with the
former, subject to the restriction that he must not choose the best specimen
of the genus ; but cf. Dig. 33. 6. 4. If the choice was given to the heir,
he might not select the worst : if to a third person, he might choose
neither the best nor the worst, Dig. 30, 37. pr.

§ 28. Justinian's enactment on this matter is in Cod. 6. 43. 3.

§ 26. For incertae personae and testamenti factio see Gains ii. 238-240,
and note on Tit. 14. pr. supr. ; for the validity of fideicommissa to in-
certae personae, note (3) on Tit. 23. i inf.

3oa INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

non Videbatur posse incertae personae dari, quia placebat
nominatim servos liberari. tutor quoque certus dari* debebat.
sub certa vero demonstratione, id est ex certis personis in-
certae personae, recte legabatur, veluti * ex cognatis meis qui
nunc sunt si quis filiam meam uxorem duxerit, ei heres meus
illam rem dato.' incertis autem personis legata vel fideicom-
missa relicta et per errorem soluta repeti non posse sacris

26 constitutionibus cautum erat. Postumo quoque alieno inuti-
liter legabatur: est autem alienus postumus, qui natus inter
suos heredes testatoris futurus non est : ideoque ex eman-
cipato filio conceptus nepos extraneus erat postumus avo.

27 Sed nee huiusmodi species penitus est sine iusta emendatione
derelicta, cum in nostro codice constitutio posita est, per quam
et huic parti medevimus non solum in hereditatibus, sed etiam
in legatis et fideicommissis : quod evidenter ex ipsius consti-
tutionis lectione clarescit. tutor autem nee per nostram con-
stitutionem incertus dari debeat, quia certo iudicio debet quis

28 pro tutela suae posteritati cavere. Postumus autem alienus
heres institui et antea poterat et nunc potest, nisi in utero
eius sit, quae iure nostra uxor esse non potest. Si quid in

29 nomine cognomine praenomine legatarii erraverit testator, si
de persona constat, nihilo minus valet legatum: idem in

§§ 26, 27. For legacy to postumi alieni see Gaius ii. 241 and note on
Tit. 14. pr. supr. The constitution by which Justinian altered the law is
not in the Code which has come down to us, but there is a statement of
its contents in the abstract of the Basilica made by one Tipucitus.

§ 28. What Justinian says as to the possibility of instituting a postumus
alienus before his own time refers (as is clear from Bk. iii. 9. pr. inf.) not
to the validity of such institution iure civili, but to the resulting bonorum
possessio : cf. Gaius ii. 242, 287. For the latter part of the section cf.
Gaius ii. 141 Mtem qui in utero eius est quae cohnubio non interveniente
ducta est uxor extraneus postumus patri contingit' and Dig. 28. 2. 9. I
'sed si ex ea, quae alii nupta sit, postumum quis heredem instituerit,
ipso iure non valet, quod turpis sit institutio,' ib. 4 'sed si per adop-
tionem sororem factam habeam, potero postumum ex ea heredem in-
stituere, quia adoptione soluta possum eam ducere uxorem.'

§ 29. Mistake is of two kinds : it may exist either in forming an in-
tention, or in expressing one already genuinely formed. In this and the
next section Justinian is speaking of the latter. An error in a name, si de
persona constat, does not affect the validity of a testamentary disposition,
'rerum enim vocabula immutabilia sunt, hominum mutabilia' Dig. 30.
4. pr. Again, if a testator expressed a different quantity from what he

Tit. ao.] D£ LEGATIS. 303

heredibus servatur et. recte: nomina enim significandorum
hominum gratia reperta sunt, qui si quolibet alio modo intel-
legantur, nihil interest. Huic proxima est ilia iuris regula 30
falsa demonstratione legatum non peremi. veluti si quis ita
legaverit * Stichum servum meum vernam do lego :' licet enim
non vema, sed emptus sit, de servo ta'men constat^ utile est
legatum. et convenienter si ita demonstraverit * Stichum
servum, quem a Seio emi,' sitque ab alio emptus, utile legatum
est, si de servo constat. Longe magis l^^to falsa causa non 31
nocet. veluti cum ita quis dixerit : * Titio, quia absente me
n^otia mea curavit, Stichum do lego/ vcl ita: * Titio, quia
patrocinio eius capitali crimine liberatus sum, Stichum do
lego:* licet enim neque negotia testatoris umquam gessit
Titius neque patrocinio eius liberatus est, legatum tamen

intended, the expression must yield to the intention. Dig. 28. 5. 9. 2-4 ;
30. 15 : and if he inserted a condition which he never intended, it was
taken pro non scripto, but a disposition which in form is absolute, but ^
which the testator intended to make conditional, is void, Dig. 28. 5. 9. 5.

A disposition made under a mistake, or in ignorance of certain facts i
(the first kind of mistake above mentioned) as a rule has all the effect
which it would have had, had there been no mistake at all. In wills,
however, this rule is reversed, and the disposition is void Thus, if a
testator institutes or gives a legacy to a person whom he erroneously
believes to be his son or brother, the institution or legacy is invalid, Cod.
6. 23. 5 ; 6. 24. 4 : so too if he institutes an extraneus supposing that
he has no children of his own, Dig. 5. 2. 28, or executes a second will
under the impression that the person instituted in the first 'is dead,
Dig. 28. 5. 92. According to this rule, the master of the instituted slave
in Tit. 15. 4 supr. would be entitled to nothing, but the decision of
Tiberius, though quite opposed to principle, is to be excused as a rough
and ready attempt to adjust a conflict between equitable and strictly
legal claims. The inconsistency between §§4 and '11 has been pointed
out in the note on the latter.

§ SO. ' Quicquid^ demonstratae rei additur satis demonstratae, frustra
est' Dig. 33. 4. I. 8, the reason being that ' deihonstratio plerumque vice
nominis fungitur' Dig. 35. i. 34.

§ 81. The general rule is that a testamentary disposition is void if the -
testator's motive in making it is a mistaken one, e. g. if he erroneously ^
supposes the institutus or legatee to have saved his life, to be his agent,
etc. : and it is only apparently that this is contradicted by the maxim
falsa causa non nocet. All that the latter means is that an institution
or legacy is not avoided by the mere fact that the testator states a motive
for his disposition which is unreal: to avoid it it must also be proved

304 INSTITUTIONUM LIBRI Q UA TTUOR. [Lib. II .

valet, sed si condicionaliter enuntiata fuerit causa, aliud
iuris est, veluti hoc modo: *Titio, si negotia mea curaverit,

32 fundum do lego.' An servo heredis recte legamus, quaeritur.
et constat pure inutiliter legari nee quidquam proficere, si vivo
testatore de potestate heredis exierit, quia quod inutile foret
legatum, si statim post factum testamentum decessisset tes-
tator, hoc non debet ideo valere, quia diutius testator vixerit.
sub condicione vero recte legatur, ut requiramus, an, quo

33 tempore dies legati cedit, in potestate heredis non sit. Ex
diverso herede instituto servo quin domino recte etiam sine
condicione legetur, non dubitatur. nam et si statim post
factum testamentum decesserit testator, non tamen apud eum
qui heres sit dies legati cedere intellegitur, cum hereditas a
legato separata sit et possit per eum servum alius heres effici,
si prius, quam iussu domini adeat, in alterius potestatem
translatus sit, vel manumissus ipse heres efficitur: quibus
casibus utile est legatum : quodsi in eadem causa permanserit

34 et iussu legatarii adierit, evanescit legatum. Ante heredis
institutionem inutiliter antea legabatur, scilicet quia testa-
menta vim ex institutione heredum accipiunt et ob id veluti
caput atque fundamentum intellegitur totius testamenti here-

that he believed it to be real : ' falsam causam legato non obesse verius
est, quia ratio legandi legato non cohaeret : sed plerumque doli ex-
ceptio locum habebit, si probetur alias legaturus non fuisse' Dig. 35.
I. 72. 6; of. Cod. 6. 44. I.

§ 82. This distinction between a legacy given pure, and sub condicione
to a slave of the institutus had been supported by the Sabinians : the
Procuiians held it void in either case : Servius maintained that the
bequest was provisionally valid, whether conditional or not, but became
void if the legatee was in the institutus* power on the dies legati cedens,
Gaius ii. 244. The Proculian view was based upon what is called the
regula Catoniana, because it was ascribed to one of the Catos, probably
the younger: * regula Catoniana sic definit; quod, si testamenti facti
tempore decessisset testator, inutile foret, id legatum, quandocunque de-
cesserit, non valere ' Dig. 34. 7. i. But this rule did not apply to con-
ditional legacies, whose validity was tested at the fulfilment of the condi-
tion^ Dig. 35. I. 98, or to those which were given ex die: 'Catoniana
regula non pertinet ad ea legata, quorum dies non mortis tempore, sed
post aditam cedit hereditatem ' Dig. 34. 7. 3.

§ 34. Cod. 6. 23. 24 : see note on Tit. 14 pr. supr. ad init. The words
' quod et ipsi antiquitati vituperandum fuerat visum * relate to the whole
sentence, ' ordinem scripturae sequi, spemi autem testatoris voluntatem.'

Tit. 20.] DE LEG AT IS. 305

dis institutio. pari ratione neclibertas ante heredis institu-
tionem dari poterat. sed quia incivile esse putavimus ordinem
quidem scripturae sequi (quod et ipsi antiquitati vituperandum
fuerat visum), spemi autem testatoris voluntatem : per nostram
constitutionem et hoc vitium emendavimus, ut liceat et ante
heredis institutionem et inter medias heredum institutiones
legatum relinquere et multo magis libertatem, cuius usus
favorabilior est. Post mortem quoque heredis aut legatarii ^^
simili modo inutiliter legabatur : veluti si quis ita dicat : * cum
heres meus mortuus erit, do lego : ' item * pridie quam heres
aut legatarius morietiir.* sed simili modo et hoc correximus
firmitatem huiusmodi legatis ad fideicommissorum similitu-
dinem praestantes, ne vel in hoc casu deterior causa legatorum
quam fideicommissorum inveniatur. Poenae quoque nomine ^^
inutiliter legabatur et adimebatur vel transferebatur. poenae
autem nomine legari videtur, quod coercendi heredis causa
relinquitur, quo magis is aliquid faciat aut non faciat : velut,
si quis ita scripserit: * heres meus si filiam suam in matri-
monium Titio collocaverit ' (vel ex diverso *si non colloca-
verit)/ * dato. decem aureos Seio/ aut si ita scripserit * heres
meus si sefvum Stichum alienaverit ' (vel ex diverso ' si non
alienaverit),' * Titio decem aureos dato.' et in tantum haec
regula observabatur, ut perquam pluribus principalibus consti-
tutionibus significetur nee principem quidem agnoscere, quod

§ 85. Gaius says (ii. 232) that a legacy ^ cum heres meus morietur ' was
valid, but one 'cum heres meus mortuus erit' or * pridie quam heres
meus morietur * was void : a distinction, he adds, * quod non pretiosa
ratione receptum videtur/ The ground of the rule was 'ne ab heredis
herede legari videatur, quod iuris civilis ratio non patitur' Ulpian, reg.
24. 16, cf. Paul. sent. rec. 3. 6. 5, which itself was only an application of
the larger principle ' inelegans visum, ex heredis persona incipere obliga-
tionem' Gaius iii. 100 : see on 6k. iii. 19. 13 inf. A fideicommissum was
valid in any of the three forms given above, Gaius ii. 277, Ulpian, reg.
25. 8. Justinian's enactments on the subject are in Cod. 4. 11. i ; 8. 38. 11.

§ 96. Some conditional legacies are difficult to distinguish from legacies
poenae nomine, viz. those in which the fulfilment of the condition depends
on the legatee himself. These, however, were not necessarily treated as
penal under the old law : the test was the intention of the testator ('poenam
a condicione voluntas testatoris separat, et an poena, an condicio sit ex
voluntate defuncti apparet ' Dig. 34. 6. 2) ; unless it appeared that the
testator designed the legacy as a means of compulsion, it was valid.

X

30.6 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

ei poenae nomine legatum sit. nee ex militis quidem testa-
mento talia legata valebant, quamvis aliae militum voluntates
in ordinandis testamentis valde observantur. quin etiam nee
libertatem poenae nomine dari posse placebat. eo amplius
nee heredem poenae nomine adici posse Sabinus existimabat,
veluti si quis ita dicat: 'Titius heres esto: si Titius filiam
suam Seio in matrimonium collocaverit, Seius quoque heres
esto : ' nihil enim intererat, qua ratione Titius coerceatur, utrum
legati datione an coheredis adiectione. at huiusmodi scrupu-
lositas nobis non placuit et generaliter ea quae relinquuntur,
licet poenae nomine fuerint relicta vel adempta vel in alios
translata, nihil distare a ceteris legatis constituimus vel in
dando vel in adimendo vel in transferendo : exceptis his vide-
licet, quae impossibilia sunt vel legibus interdicta aut alias
probrosa; huiusmodi enim testatorum dispositiones valere
secta temporum meorum non patitun

XXI.

DE ADEMPllONE LEGATORUM ET TRANSLATIONE.

Ademptio legatorum, sive eodem testamento adimantur
sive codicillis, firma est, sive contrariis verbis fiat ademptio,
yeluti si, quod ita quis legaverit * do lego,' ita adimatur * non
do non lego,* sive non contrariis, id est aliis quibuscumque
1 verbis. Transferri quoque legatum ab alio ad alium potest,
veluti si quis ita dixerit: 'hominem Stichum, quern Titio
legavi, Seio do lego,' sive in eodem testamento sive in

Tit. XXI. For codicilli see Tit. 25 and notes inf. Besides the modes
mentioned in the text, a legacy might be taken away by erasing the dis-
position from the will, Dig. 34. 4, 16 and 17, or tacitly by any act from
which it could be gathered that the testator no longer wished the legatee
to have the bequest, e.g. by alienation of the res legata, 12 supr., Dig.
34. 4. 15, and a legacy was even held to be revoked if the relations
between the parties became such that a continuance of the testator's
benevolent intention could not be presumed, e. g. if a serious enmity
arose between them. Dig. 34. 4. 3. 11. Under the older law contraria
verba had been required for an express ademption, *dum tamen eodem
modo adimatur, quo modo datum est ' Ulpian, reg. 24. 29.

§ 1. * Translatio legati fit quattuor modis : aut enim a persona in per-
sonam transfertur, aut ab eo, qui dare iussus est, transfertiu* ut alius det ;

Tit. 22.] DE LEGE FALCIDIA. 307

codicilHs hoc fecerit : quo casu simul Titio adimi videtur et
Seio dari.

XXII.

DE LEGE FALCIDIA.

Superest, ut de lege Falcidia dispiciamus, qua modus
novissime legatis impositus est. cum enim oHm lege duo-
decim tabularum libera erat legandi potestas, ut liceret vel
totum patrimonium legatis erogare (quippe ea lege ita cautum
esset: uti legassit suae rei, ita ius esto): visum est banc
legandi licentiam coartare, idque ipsorum testatorum gratia
provisum est ob id, quod plerumque intestati moriebantur,
recusantibus scriptis heredibus pro nuUo aut minimo lucro
hereditates adire. et cum super hoc tam lex Furia quam lex
Voconia latae sunt, quarum neutra sufficiens ad rei con-
summationem videbatur : novissime lata est lex Falcidia,
qua cavetur, ne plus legare liceat, quam dodrantem totorum
bonorum, id est ut, sive unus heres institutus esset sive plures,

aut cum res pro re datur, ut pro fundo decern aurei : aut quod pure
datum est, transfertur sub condicione ' Dig. 34. 4. 6. pr.

Tit. XXH. For the well-known enactment of the Twelve Tables here
quoted cf. Cic. de inv. 2. 50, 148, Auctor ad Herenn. i. 13, 23, Dig. 50.
16. 120, Ulpian, reg. 11. 14; its content is pithily put by Gaius ii. 224
' quod quisque de re sua testatus esset, id ratum haberetur.'

The lex Furia testamentaria, the date of which is unknown, but which
must have been enacted before the lex Voconia, Gaius ii. 226, imposed a
penalty of four times the excess upon any one (except the cognates, within
certain degrees, fragm. Vat. 301, or the cognates of the person by whom
the testator had been emancipated or manumitted, Ulpian, reg. 28. 7)
who took as a legacy, or mortis causa, more than 1000 asses from the
same person. As Gaius remarks, it altogether failed in its object, ' qui
enim verbi gratia quinque millium aeris patrimonium habebat, poterat
quinque hominibus singulis millenos asses legando totum patrimonium
erogare' ii. 225. The lex Voconia, B.C. 169 (Cic. de fin. 2. 17: in Verr.
I. 43), one provision of which has been already noticed on p. 267 supr.,
enacted (Gaius ii. 226) that no one should take more by way of legacy or
donatio mortis causa than the heir or heirs jointly. Thus a person pos-
sessing 100,000 asses or upwards could leave a woman half his property
as a legacy, though he could not institute her his heir : and this perhaps
was the origin of legata partitionis (see on Tit. 23. 4-6 inf.). The enact-
ment failed in its object, for, as Gaius says, * in multas legatariorum per-

X 2

308 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IT.

1 apud eum eosve pars quarta remaneret. Et cum quaesitum
esset, duobus heredibus institutis, veluti Titio et Seio, si Titii
pars aut tota exhausta sit legatis, quae nominatim ab eo
data sunt, aut supra modum onerata, a Seio vero aut nulla
relicta sint legata, aut quae partem eius dumtaxat in partem
dimidiam minuunt, an, quia is quartam partem totius here-
ditatis aut amplius habet, Titio nihil ex legatis, quae ab eo
relicta sunt, retinere liceret : placuit retinere licere, ut quartam
partem suae partis salvam habeat: etenim in singulis here-

sonas distributo patrimonio, poterat adeo heredi minimum relinquere
[testator] ut non expediret heredi, huius lucri gratia, totius hereditatis
onera sustinere.' Both statutes were superseded by the lex Falcidia,
B. c. 40, the terms of which ran as follows, ' quicunque civis Romanus
post hanc legem rogatam testamentum faciet, is quantSm cuique civi
Romano pecuniam iure publico dare legare volet, ius potestasque esto,
dum ita detur legatum, ne minus quam partem quartam hereditatis eo
testamento heredes capiant' Dig. 35. 2. i. pr. The provisions of the lex
Falcidia were not extended to donationes mortis causa till the time of
Septimius Severus, Dig. 24. i. 32. i ; 31. 77. I.
§ 1. The maxim * in singulis heredibus ratio legis Falcidiae pohenda est *

^ can best be explained by an illustration. A leaves a property of 800/.
between B and C as co-heredes. He charges B with legacies to the
extent of 350/. : C he leaves comparatively free. The legatees argue that
their legacies ought to be paid in full, for even so the heirs between
them will get far more than a fourth of the whole inheritance. B argues
that they ought not, for else he will not get a clear fourth, but only an
eighth, of his own share. B's argument prevails, each heir being entitled
separately to claim the Falcidian fourth on his share of the inheritance,
even though the legatees collectively thus get less than the three-fourths
to which they are apparently entitled under the statute.

If B had refused to accept, C would by accrual have had two distinct
shares in the same inheritance, and as this might happen in other ways,

^ it is important to determine how the Falcidian fourth is calculated, if
necessary, in such cases. Three different modes of such calculation are
found in the authorities, (i) The several shares in the inheritance, and
the legacies charged upon them respectively, are taken in the aggregate,
and a fourth deducted from that aggregate only. (2) The several shares
are regarded as still belonging to different heirs, and the maxim stated
in this section is applied to them severally. (3) They are still kept
separate, and the fourth is calculated on each share by itself: but the
excess on some shares is allowed to benefit the legatees whose bequests
are charged on others, but not vice versa. This is the principle applied
in the case of accrual between B and C supposed ; the legatees whose
bequests are charged on the heir who takes (C) are benefited by the
surplus (if there be one) on the share of the heir who refuses, but not

Tit. 23.] DE LEGE FALCIDIA. 309

dibus ratio legis Falcidiae ponenda est. Quantitas autem 2
patrimonii, ad quam ratio legis Falcidiae redigitur, mortis
tempore spectatur. itaque si verbi gratia is, qui centum
aureorum patrimonium habebat, centum aureos legaverit, nihil
legatariis prodest, si ante aditam hereditatem per servos
hereditarios aut ex partu ancillarum hereditariarum aut ex
fetu pecorum tantum accesserit hereditati, ut centum aureis
legatorum nomine erogatis heres quartam partem hereditatis
habiturus sit, sed necesse est, ut nihilo minus quarta pars
legatis detrahatur. ex diverso si septuaginta quinque lega-

conversely, ' quod si alterutro eorum deficiente alter heres solus extiterit,
utrum perinde ratio legis Falcidiae habenda sit, ac si statim ab initio is
solus heres institutus esset, an singularum portionum separatim causae u
spectandae sunt ? et placet, si eius pars legatis exhausta sit, qui heres
extiterit, adiuvari legatarios per deficientem partem ... si vero defecta
pars fuerit exhausta, perinde in ea ponendam rationem legis Falcidiae,
atque si ad eum ipsum pertineret, a quo defecta fieret' Dig. 35. 2. 7^,
We find the same system in cases of substitution. The first method of
calculating the fourth is found pure and simple only whbre the same heir
is instituted to different shares (*ex variis portionibus' Dig. 35. 2. 11. 7) u
m the same inheritance, though we often see it in combination with the
second (as in the case of accrual) ; the second applies by itself where one
of two co-heirs becomes heir to, or otherwise entitled to the share of, the
other after acceptance, ' si coheredem meum post aditam hereditatem ^
adrogavero, non dubitatur quin separandae sint portiones, perinde atque
si coheredi meo heres extitissem* Dig. 35. 2. i. 15.

§ 2. The mode in which the fourth was ascertained was as follows.
Immediately on the testator's decease, the inheritance was valued : after
deducting the costs and charges specified in section 3, three-fourths of the
residue is set apart for the legatees, who, if any one accepts under the ^
will, can claim this, whatever happens, ui;)ess indeed they agree to take
less : but under no circumstances can they demand more. What remains
is reserved for the heir, whether its amount is increased or diminished .
between the testator's decease, and acceptance by him.

For instance, after deducting the costs and charges referred to, the
inheritance is valued at 1200/. The legacies charged on the heir amount
to 1 150/., but all that the legatee can get is 900/., even if subsequently
and before aditio the inheritance doubles in value, e. g. by a servus here-
ditarius being instituted heir to a rich deceased, or in any other manner '-
whatsoever. The only person benefited by this is the heir : instead of
300/., his share at the testator's decease, he gets (under the circumstances
supposed) 1500/., and yet the legatees cannot claim more than 900/.,
because their rights are fixed at the date of death.

In the converse case of the inheritance seriously falling in value after

3IO INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

verit et ante aditam hereditatem in tantum decreverint bona,
incendiis forte aut naufragiis aut morte servorum, ut non
amplius quam septuaginta quinque aureorum substantia vel
etiam minus relinquatur, solida legata debentur. nee ea res
damnosa est heredi, cui liberum est non adire hereditatem :
quae res cfficit, ut necesse sit l^atariis, ne destituto testa-
mento nihil consequantur, cum herede in portione pacisci.
3 Cum autem ratio legis Falcidiae ponitur, ante deducitur aes
alienum, item funeris impensa et pretia servorum manu-
missorum, tunc deinde in reliquo ita ratio habetur, ut ex eo
quarta pars apud heredes remaneat, tres vero partes inter
legatarios distribuantur, pro rata scilicet portione eius, quod
cuique eorum legatum fuerit. itaque si fingamus quadrin-

that date, the heir (as is remarked in the text) need not accept, and
naturally will not, if his share has dwindled so much as to be no com-
pensation for the trouble of administration : but if he does not accept
(supposing no substitutus does either) intestate succession will take the
place of the will, and the legacies will fall to the ground : it will conse-
quently be the legatees* interest to abate their claims so f^r as to make
aditio not unprofitable to the institutus.

In valuing the inheritance, all its debtors who were not known to be
bankrupt were regarded as solvent, though only to the extent that they
could pay : ^ cuius debitor non solvendo est, tantum habet in bonis quan-
tum exigere potest ' Dig. 35. 2. 63. i, so that if any subsequently became
insolvent the loss fell on the heir : ' in ratione legis Falcidiae . . .
debitorum facta peiora nomina . . . heredi pereunt ' Dig. ib. 30. pr. In
the opposite case the rule was inconsistent : if bankrupt debtors subse-
quently acquired property, the legatees were so much the better off, Dig.
ib. 56. I.

The heir was entitled to his fourth as heir : whatever else he got from
the testator, by legacy, fideiconunissum, or donatio mortis causa, was not
included in it, unless the testator directed otherwise, Dig. ib. 29 ; ib. 74 ;
ib. 91.

§ 3. Besides debts, funeral expenses, and the value of slaves whom the
testator had manumitted either directly or by fideicommissum, there
were deducted the costs of administration, Dig. 32. 5. 72. The heir could
not claim his legitima pars (Tit. 18 supr.), Dig. 5. 2. 89, in addition to the
Falcidian fourth : the Canon law altered this where he was charged with
a fideicommissaria hereditas (for which see next Title). The legitima
pars of those relations of the testator who could claim it was treated as a
debt due from the inheritance.

The cases in which the heir could not claim the Falcidian fourth are
^' briefly as follows, (i) Where the testament was that of a soldier exe-
cuted in accordance with the rules laid down in Tit. 11 supr., Cod. 6. 21.

Tit. 33.] DE FIDEICOMMISSARIIS HEREDITATIBUS. 31 1

gentos aureos legates esse et patrimonii quantitatem, ex
qua legata erogari oportet, quadringentorum esse, quarta
pars singulis legatariis detrahi debet, quodsi trecentos
quinquaginta legates fingamus, octava debet detrahi. quodsi
quingentos legaverit, initio quinta, deinde quarta detrahi
debet: ante enim detrahendum est, quod extra bonorum
quantitatem est, deinde quod ex bonis apud heredem re-
manere oportet.

XXIII.

DE FIDEICOMMISSARIIS HEREDITATIBUS.

Nunc transeamus ad fideicommissa. et prius de heredi-
tatibus fideicommissariis videamus.

Sciendum itaque est omnia fideicommissa primis tempo- 1

12. (2) When the testator explicitly denied the fourth to the heir, which
Justinian enabled him to do in all cases by Nov. i. 2. 2. (3) Where the
heir renounced the right, such renunciation being presumed if he paid
the legacies in full. Cod. 6. 50. 19 : but no such renunciation bound the
heir if made during the testator's lifetime, Dig. 32. 5. 15. i. (4) Where
the heir forfeited his right, as he did {a) by neglecting to make an inven-
tory (p. 289 supr.). Cod. 6. 30. 22. 14 c, {b) by any attempt to defraud the
legatees, Dig. 32. 5. 59. pr. : and (c) by accepting the inheritance only
under compulsion from the legatees or iideicommissarii, Dig. 36. 1.4:
ib. 14. 4. (5) The right to deduct the fourth did not exist in respect of
certain kinds of legacies, e. g. those of liberty to slaves. Dig. 35. 2. 33,
of objects possessing no proper pecuniary value, such as documents of
title, Cod. 6. 50. 15, legata debiti when there is no commodum repraesen-
tationis (Tit. 20. 14 supr.). Dig. 30. 28. i ; legacies ad pias causas, Nov.
131. 12, and those which go to make up the legitima pars of persons who
could bring the querella inofficiosi testamenti or the actio ad supplendam
legitimam, Cod. 3. 38. 36 pr. : and legacies to a wife of articles in her
personal use, Dig. 35. 2. 81. 2.

Tit. XXTII. § 1. Fideicommissa, which under Justinian's final legis-
lation practically formed one institution with legacies, in origin differed
from them in nearly every respect. Not being legally binding in any
case on the heir or other person who was charged with them, there was
nothing to be gained by inserting them in a will, so that probably they
were in most cases oral or contained in codicilli (Tit. 25 inf.) ; this at
least seems to be the natural inference from the fact that codicilli were
clothed with obligatory force almost simultaneously with Augustus' inter-
vention in favour of fideicommissa. In Cicero's time it was considered
an honest man's duty to carry out fideicommissa whose object was legi-

3 1 2 INSTITUTIONUM LIBRI Q UA TTUOR. [Lib. II.

rlbus infirma esse, quia nemo invitus cogebatur praestare id
de quo rogatus erat: quibus enim non poterant hereditates
vel legata relinquere, si relinquebant, fidei committebant
eorum, qui capere ex testamento poterant: et ideo fidei-
commissa appellata sunt, quia nullo vinculo iuris, sed tantum
pudore eorum qui rogabantur continebantur. postea primus
divus Augustus semel iterumque gratia personarum motus,
vel quia per ipsius salutem rogatus quis diceretur, aut ob
insignem quorundam perfidiam iussit consulibus auctoritatem
suam interponere. quod quia iustum videbatur et populare
erat, paulatim conversum est in adsiduam lurisdictionem :
tantusque favor eorum factus est, ut paulatim etiam praetor
proprius crearetur, qui fideicommissis ius diceret, quem fidei-
commissarium appellabant.

limate, while those which aimed at an evasion of law were disregarded ;
de fin. 2. 17 and 18. For their conversion into an ^adsidua iurisdictio'
cf. Suetonius, Claud. 23 ' iurisdictionem de fideicommissis quotannis et
tantum in urbe delegari magistratibus solitam, m perpetuum atque etiam
per provincias potestatibus demandavit.' The praetor fideicommissarius
is mentioned by Gaius ii. 278, Ulpian, reg. 25. 12, and often in the Digest.

The following are perhaps the most characteristic of the many points
of difference which Gaius (ii. 269-289) mentions as originally existing
between these two kinds of bequest : —

(i) A legacy could not exist apart £rom a will, and had to be expressed
' civilibus verbis : ' a fideicommissum could be imposed on intestate heirs
as well as heirs under a will, and even when contained in a will might be
written in Greek, Ulpian, reg. 25. 9. Indeed, while no one could be
charged with a legacy except the testamentary heir, a fideicommissum
could be imposed on any one who took a benefit from the deceased upon
his death, Tit. 24. i inf. : and thoughr certain forms were generally em-
ployed, a mere gesture, if unmistakeable, was sufficient, Ulpian, reg. 25. 2
and 3.

(2) A legacy created an actionable obligation (quasi ex contractu)
between the heir and legatee : a fideicommissum gave rise only to a
moral obligation : the deceased was said fidei committere, as opposed to
directo iure relinquere. Even when fideicommissa had become an
adsidua iurisdictio, they could not be sued upon by a regular action at
law, which was tried by a iudex, but (if he saw fit in the particular case
to enforce them) they were adjudicated upon by the praetor fideicom-
missarius in person, thus forming a branch of the extraordinaria cognitio :
and it was not till Justinian's own time (Tit. 20. 2 and 3 supr.) that in
respect of remedy they were placed upon precisely the same footing with
legacies.

Tit. 23.] DE FIDEICOMMISSARIIS HEREDITATIBUS, 313

In primis igitur sciendum est opus esse, ut aliquis recto 2
iure testament© heres instituatur eiusque fidei committatur,
ut earn hereditatem alii restituat: alioquin inutile est testa-
mentum, in quo nemo heres instituitur. cum igitur aliquis
scripserit: 'Lucius Titius heres esto/ poterit adicere: *rogo
te, Luci Titi, ut, cum primum possis hereditatem meam adire,
earn Gaio Seio reddas restituas.* potest autem quisque et de
parte restituenda hcredem rogare: et liberum est vel pure
vel sub condicione relinquere fideicommissum vel ex die certo.

Restituta autem hereditate is quidem qui restituit nihilo 3

(3) To benefit by a fideicommissum the recipient need not have testa-
ment! factio or any other kind of capacity (see Tit. 20. 24 supr.) : thus
one could be given to peregrini, Latini luniani, women who by the lex
Voconia were disabled from succeeding to testators possessed of 100,000
asses or upwards, incertae personae, coelibes, and orbi. The incapa-
city of peregrini to take legacies is mentioned by Gaius (ii. 285) as the
probable origin of fideicommissa of res singulae : that of women under
the lex Voconia seems to be connected with the first cases of fideicom-
missaria hereditas, Cic. de fin. 2. 17 and 18. But by the SC. Pegasianum
(§ 5 inf., Gaius ii. 286) fideicommissa were subjected to the rules of the
leges lulia and Papia Poppaea respecting coelibes and orbi (p. 267 supr.),
and peregrini and incertae personae were incapacitated by senatus
consulta of Hadrian, Gaius ii. 285. 287.

(4) The lex Falcidia had not included fideicommissa within its scope :
this was remedied by the SC. Pegasianum, § 8 inf.

§ 2. After the passing of the SC. TrebeUianum (§ 4 in£) a fideicom-
missum was called a fideicommissaria hereditas if the heir was requested •
to transfer either the whole inheritance, or some definite fraction of it, to.
the intended beneficiary : this following the analogy of a genuine heir-
ship, in which a person is heres though instituted in a very small fraction
of the succession as a whole : in other words, as a man was directus heres
who was instituted in only a tenth, or a fiftieth, of the inheritance, so he
was regarded as heres fideicommissarius, and entitled to a fideicommis-
saria hereditas, if the instituted heir was requested to transfer to him
some definite quota of the universal succession, see § 7 inf. Nor, as
might be hastily inferred from the text, was it essential that there should
be a will : a fideicommissaria hereditas could be created by a person
charging his heredes ab intestato with the restitution of the succession
either in whole or in part : ' meminisse autem oportebit de herede instituto
senatum loqui : ideoque tractatum est apud luhanum, ad intestatos locum
habeat: sed est verius eoque iure utimur, ut hoc senatusconsultum ad
intestatos quoque pertineat, sive legitimi sive honorarii sint successores '
Dig. 36. I. 6. I ; cf. § 10 mf.

§ 3. Before the legislation mentioned in the next section, the effect of

314 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

minus heres permanet: is vero qui recipit hereditatem

4 aliquando heredis aliquando legatarii loco habebatur. Et
in Ncronis quidem temporibus Trebellio Maximo et Annaeo
Seneca consulibus senatus consultum factum est, quo cautum
est, ut, si hereditas ex fideicommissi causa restituta sit, omnes
actiones, quae iure civili heredi et in heredem competerent,
ei et in eum darentur, cut ex fideicommisso restituta esset
hereditas. post quod senatus consultum praetor utiles ac-
tiones ei et in eum qui recepit hereditatem quasi heredi et in

5 heredem dare coepit. Sed quia heredes scripti, cum aut
totam hereditatem aut paene totam plerumque restituere
rogabantur, adire hereditatem ob nullum vel minimum lucrum
recusabant atque ob id extinguebantur fideicommissa : postea
Vespasiani Augusti temporibus Pegaso et Pusione consulibus
senatus censuit, ut ei, qui rogatus esset hereditatem resti-
tuere, perinde liceret quartam partem retinere, atque lege
Falcidia ex legatis retinere conceditur. ex singulis quoque
rebus, quae per fideicommissum relinquuntur, eadem retentio
permissa est. post quod senatus consultum ipse heres onera
hereditaria sustinebat: ille autem, qui ex fideicommisso
recepit partem hereditatis, legatarii partiarii loco erat, id est

a request to the heres to transfer to some other person the hereditas or
some definite fraction of it had not been to produce a universal succession
in the proper sense of the term. The transfer was at that time effected
under the guise of a sale at a nominal price ('nummo uno ' Gaius ii. 252),
and the heir under the will (heres fiduciarius), and the transferee entered
into a contract by reciprocal stipulations (stipulationes quasi emptae et
venditae hereditatis) ; the former bargaining that he should be indemni-
fied, in proportion to the quota of the hereditas which he transferred,
against all judgments, legal expenses, etc. incurred by him as heir, the
latter, that the other should hand over to him his due share of the present
or subsequent assets, and allow him if necessary to sue as his agent upon
debts owed to the testator, Gaius ii. 252. In other words, the maxim
semei heres semper heres was consistently adhered to: the institutus,
being charged with the transfer of so large a share of the succession that
otherwise it would not be worth his while to accept, considering the
liabilities with which he was saddled, was only induced to do so by the
transferee's expressly undertaking to bear a fair share in all debts and
other expenses which he incurred as heir.

This section is wrongly placed, as it refers really to the law as it stood
after the passing of the SC*. Trebellianum and Pegasianum.

§§ 4r-e. The SC. Trebellianum, A. D. 62, was designed in order to dis-

Tit. 33.] DE FIDEICOMMISSARIIS HEREDITATIBUS. 315

eius legatarii, cui pars bonorum legabatur. quae species legati
partitio vocabatur, quia cum herede legatarius partiebatur
hereditatem. unde quae solebant stipulationes inter heredem
et partiarium legatarium interponi, eaedem interponebantur
inter eum, qui ex fideicommisso recepit hereditatem, et
heredem, id est ut et lucrum et damnum hereditarium pro
rata parte inter eos commune sit. Ergo si quidem non plus 6
quam dodrantem hereditatis scriptus heres rogatus sit resti-
tuere, tunc ex Trebelliano senatus consulto restituebatur
hereditas et in utrumque actiones hereditariae pro rata parte
dabantur: in heredem quidem iure civili, in eum vero qui
recipiebat hereditatem ex senatus consulto Trebelliano tam-
quam in heredem. at si plus quam dodrantem vel etiam

pense with the clumsy process of fictitious sale and the stipulations quasi
emptae et venditae hereditatis which had previously been necessary. For
actiones utiles see the pages referred to s. v. * actiones directae et utiles *
in the General Index. The operation of the senatusconsult was much
narrowed eleven years later by the enactment of the SC. Pegasianum,
which (inter alia) provided (i) that fideicommissa should in future be ^
subject to the rule which had been established for legacies by the lex
Falcidia, and the heir be entitled to retain for himself a fourth of the
inheritance clear of fideicommissa. (2) That where fideicommissa were
charged upon an inheritance in excess of three-fourths of its value, the
SC. Trebellianum should have no application. The general result after
this was as follows :

(i) If the fideicommissa did not exceed three-fourths of the whole suc-
cession, the transfer of those of them which were * hereditates ' was
governed by the SC. Trebellianum : the transferee became quasi-heir (as
described in § 4) and could sue and be sued by utilis actio in respect of
the share he took : no stipulations between him and the heres directus
were required.

(2) If the fideicommissa, whether singular or universal, exceeded three-
fourths of the hereditas, the only person who could sue and be sued
was the heies directus, the SC. Trebellianum being excluded. Accord^
ingly, it was necessary to go back to the old contract of indemnification :
else the heir would in all probability find the hereditas danmosa. The
exact matter of the contract, however, as is remarked in § 6, differed
according as the heir availed himself of the SC. Pegasianum, and re-
tained his fourth, or was unable or declined to take advantage of it.

In the former case, the procedure was based upon an older institution,
the legatum partitionis, by which the heres was instructed in a will to
hand over to a legatee some definite fraction of the inheritance, e.g.
' heres meus cum Titio hereditatem partito, dividito ' Ulpian, reg. 24. 25.

3x6 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

totam hereditatem restituere rogatus sit, locus erat P^asiano
senatus consulto, et heres, qui semel adierit hereditatem, si
modo sua voluntate adierit,. sive retinuerit quartam partem
sive noluerit retinere, ipse universa onera hereditaria sus-
tinebat. sed quarta quidem retenta quasi partis et pro
parte stipulationes interponebantur tamquam inter partiarium
legatarium et heredem : si vero totam hereditatem restituerit,
emptae et venditae hereditatis stipulationes interponebantur.
sed si recuset scriptus heres adire hereditatem ob id, quod
dicat eam sibi suspectam esse quasi damnosam, cavetur Pega-
siano senatus consulto, ut desiderante eo^ cui restituere rogatus
est, iussu praetoris adeat et restituat hereditatem perindeque
ei et in eum qui recipit hereditatem actiones dentur, acsi iuris
est ex Trebelliano senatus consulto : quo casu nullis stipula-
tionibus opus est, quia simul et huic qui restituit securitas

As, under such circumstances, instituti not unfrequently refused to accept
unless guaranteed pro rata portione against creditors' claims and other
expenses, it became usual for the heir and the partiary legatee to enter
into a contract (stipulationes partis et pro parte), by which the latter
engaged to indemnify the former against liabilities in proportion to the
share which he took in the estate, and the former that he would transfer
to the legatee his fair proportion of the assets. This system was adopted
where the heir retained his fourth under the SC. Pegasianum. But if he
did not do so, but transferred the whole hereditas, the transaction was
regarded as a quasi-sale, and the contract took the form of stipulations
quasi emptae et venditae hereditatis, which the SC. Trebellianum had
thus dispensed with for some dozen years only.

The SC. Pegasianum, having thus fully protected the heir from being
unfairly burdened with fideicommissa, also disabled him, as is pointed
out at the end of § 6, from disappointing the expectations of fideicom-
missarii by refusing to accept the inheritance on the ground that the
liabilities exceeded the assets. Under such circumstances he could be
compelled by the magistrate to accept the transfer, whereby he forfeited
his right to the fourth : his relation to the hereditas was in fact purely
formal and momentary ; the liabilities attached, as the rights belonged,
to the transferee alone, who alone could sue the debtors, and be sued
by the creditors, of the estate : see § 7 ad fin. Consequently, if after
such enforced acceptance there was no one to whom the transfer could
be made (e. g. if the intended transferee had died leaving no successor)
the creditors would claim it themselves. Dig. 36. 1. 11. 2. If, after exercising
his right of compulsion, the fideicommissarius drew back, and refused the
transfer, it was taken in law to have been made (Dig. 36. i. 44. pr.), and
even though the share of the inheritance actually given to him was only

Tit. as.] DE FIDEICOMMISSARIIS HEREDITATIBUS. 317

datur et actiones hereditariae ei et in eum transferuntur qui
redpit hereditatem» utroque senatus consulto in hac specie
concurrente. Sed quia stipulationes ex senatus consulto 7
P^asiano descendentes et ipsi antiquitati displicuerunt et
quibusdam casibus captiosas eas homo excelsi ingenii Papi-
nianus appellat et nobis in l^ibus magis simplicitas quam
difiicultas placet, ideo omnibus nobis suggestis tarn simili-
tudinibus quam difTerentiis utriusque senatus consulti placuit
exploso senatus consulto Pegasiano, quod postea supervenit,
omnem auctoritatem Trebelliano senatus consulto praestare,
ut ex eo fideicommissariae hereditates restituantur, sive
habeat heres ex voluntate testatoris quartam sive plus sive
minus sive penitus nihil, ut tunc, quando vel nihil vel minus
quarta apud eum remaneat, liceat ei vel quartam vel quod
deest ex nostra auctoritate retinere vel repetere solutum,
quasi ex Trebelliano senatus consulto pro rata portione
actionibus tam in heredem quam in fideicommissarium com-

a fraction, he was bound to take over, as he was entitled to claim, the
whole. Dig. ib. I. 9 ; ib. 16. 4. 5. This right of compulsion could never
be exercised by a fideicommissarius of a res singula, or by a legatee :
'sed in iideicommissariis hereditatibus id provisum est, ut si scriptus
heres nollet adire hereditatem, iassu praetoris adeat et restituat : quod
beneficium his, quibus singulae res per fideicommissum relictae sunt, non
magis tributum est quam legatariis' Dig. 29. 4. 17.

4 7. Justinian combined the two senatusconsulta in one enactment :
retaining those provisions of the SC. Pegasianum which gave the heir a
right to a fourth of the inheritance dear of iideicommissa, and which
enabled the heres fideicommissarius to compel the direct heir to make
aditio ; but repealing that which had suspended the operation of the
SC. Trebellianum where the fideicommissa exceeded in amount three-
fourths of the heredltas. Under his system, whenever a definite fraction
of an inheritance is transferred under a fideiconunissum, the transferee is
in loco heredis, and capable of suing and being sued, in the ratio of the
share which comes to him.

The right, which Justinian confers upon the heir, of recovering the
fourth even after he had paid in excess to the fideicommissarius, was un-
known to the older law : ' qui totam hereditatem restituit, cum quartam
retinere ex Pegasiano debuisset, si non retineat, repetere eam non potest,
nee enim indebitum solvisse videtur, quia plenam fidem defiincto prae-
stare maluit ' Paul. sent. rec. 4. 3. 4. In Gains' time (ii. 283) if one by
mistake paid more than was due under a fideicommissum, the balance
could be recovered : with a legacy it was otherwise.

It will be remembered that the partiary legatee was only a 'singular'

3i8 INSTITUTIONUM LIBRI QUATTUOR, [Lib. II.

petentibus. si vero totam hereditatem sponte restituerit,
omnes heredifariae actiones fideicommissario et adversus eum
competunt. sed etiam id, quod praecipuum Pegasiani senatus
consulti fuerat, ut, quando recusabat heres scriptus sibi datam
hereditatem adire, necessitas ei imponeretur totam heredi-
tateip volenti fideicommissario restituere et omnes ad eum et
contra eum transire actiones, et hoc transponimus ad senatus
consultum Trebellianum, ut ex hoc solo et necessitas heredi
imponatur, si ipso nolente adire fideicommissarius desiderat
restitui sibi hereditatem, nullo nee damno nee commodo

8 apud heredem manente. Nihil autem interest, utrum aliquis
ex asse heres institutus aut totam hereditatem aut pro parte
restituere rogatur, an ex parte heres institutus aut totam
eam partem aut partis partem restituere rogatur : nam et hoc
casu eadem observari praecipimus, quae in totius hereditatis

9 restitutione diximus. Si quis una aliqua re deducta sive
praecepta, quae quartam continet, veluti fundo vel alia re
rogatus sit restituere hereditatem, simili modo ex Trebelliano
senatus consulto restitutio fiat, perinde ac si quarta parte
retenta rogatus esset reliquam hereditatem restituere. sed
illud interest, quod altero casu, id est cum deducta sive
praecepta aliqua re restituitur hereditas, in solidum ex eo
senatus consulto actiones transferuntur et res quae remanet
apud heredem sine uUo onere hereditario apud eum manet
quasi ex l^ato ei adquisita, altero vero casu, id est cum
quarta parte retenta rogatus est heres restituere hereditatem
et restituit, scindantur actiones et pro dodrante quidem

successor : he became liable to the testator's debts, not ipso iure, in
virtue of the transfer to him of a share of the hereditas, but only by
express agreement (stipulationes partis et pro parte) with the heir. After
Justinian's 'exaequatio' of legacies and fideicommissa this ceased to be
so, and the partiary legatee became a universal successor just like the
heres fideicommissarius. For some illustrations of the joint operation of
the lex Falcidia and the law relating to fideicommissa see Poste's Gaius,
pp. 292-295.

§ 9. This is called institutio ex re certa. The general rule, where a
person was instituted to specific property only, was to take the limitation
as pro non scripto : 'si ex fundo fuisset aliquis solus institutus, valet
institutio detracta fundi mentione' Dig. 28. 5. i. 4; cf. Dig. 28. 6. 41. 8 :
36. I. 30, Jf, however, it was clear that the testator meant some one else

Tit. 33.] DE FIDEICOMMISSARIIS HEREDITATIBUS. 319

transferantur ad fideicommissarium, pro quadrante remaneant
apud heredem. quin etiam licet in una re, qua deducta aut
praecepta restituere aliquis hereditatem rogatus est, maxima
pars hereditatis contineatur, aeque in soHdum transferuntur
actiones et secum deliberare debet is, cui restituitur hereditas,
an expediat sibi restitui. eadem scilicet interveniunt et si
duabus pluribusve rebus deductis praeceptisve restituere
hereditatem rogatus sit. sed et si certa summa deducta
praeceptave, quae quartam vel etiam maximam partem
hereditatis continet, rogatus sit aliquis hereditatem restituere,
idem iuris est. quae diximus de eo qui ex asse heres in-
stitutus est, eadem transferimus et ad eum qui ex parte heres
scriptus est.

Praeterea intestatus quoque moriturus potest rogare eum, 10
ad quem bona sua vel Jegitimo iure vel honorario pertinere
intellegit, ut hereditatem suam totam partemve eius aut rem
aliquam, veluti fundum hominem pecuniam, alicui restituat :
cum alioquin legata nisi ex testamento non valeant Eum 11
quoque, cui aliquid restituitur, potest rogare, ut id rursus alii
totum aut pro parte vel etiam aliud aliquid restituat. Et 12
quia prima fideicommissorum cunabula a fide heredum pen-
dent et tam nomen quam substantiam acceperunt et ideo
divus Augustus ad necessitatem iuris ea detraxit : nuper et
nos eundem principem superare contendentes ex facto, quod
Tribonianus vir excelsus quaestor sacri palatii suggessit,
constitutionem fecimus, per quam disposuimus : si testator
fidei heredis sui commisit, ut vel hereditatem vel speciale
fideicommissum restituat, et neque ex scriptura neque ex

to take the residue, the intention would be executed, as in the case of an
express fideicommissum before us : or a fideicommissum would be im-
plied in favour of the intestate heirs (Dig. 31. 69. pr.), the instituti in an
earlier will (Tit. 17. 3 supr.. Dig. 36. i. 30) or the coheredes of the insti-
tutus, Dig. 28. 5. 35. pr. ; ib. 78. pr.

§ 11. It was one of the difTerences between legacies and fideicommissa
that this could not be done by means of a legacy : * item a legatario
legari non potest, sed fideicommissum relinqui potest : quinetiam ab eo
quoque cui per fideicommissum relinquimus rursus alii per fideicom-
missum relinquere possumus' Gaius ii. 271 : cf. Tit. 24. pr. inf.

§ 12. The enactment referred to is in Cod. 6. 42. 32. The procedure
despribed here was not confined, as has been supposed, to the case of an

320 INSTITUTIONUM LIBRI QUATTUOR. [Lib. II.

quinque testium numero, qui in fideicommissis legitimus
esse noscitur, res possit manifestari, sed vel pauciores quam
quinque vel nemo penitus testis intervenerit, tunc sive pater
heredis sive alius quicumque sit, qui fidem elegit heredis et
ab eo aliquid restitui voluerit, si heres perfidia tentus adim-
plere fidem recusat negando rem ita esse subsecutam, si
fideicommissarius iusiurandum ei detulerit, cum prius ipse
de calumnia iuraverit, necesse eum habere vel iusiurandum
subire, quod nihil tale a testatore audivit, vel recusantem ad
fideicommissi vel universitatis vel specialis solutionem coartari,
ne depereat ultima voluntas testatoris fidei heredis commissa.
eadem observari censuimus et si a legatario vel fideicom-
missario aliquid similiter relictum sit. quod si is, a quo
relictum dicitur, confiteatur quidem aliquid a se relictum esse,
sed ad legis suptilitatem decurrat, omnimodo cogendus est
solvere.

XXIV.

DE SINGULIS REBUS PER FIDEICOMMISSUM RELICTIS.

Potest autem quis etiam singulas res per fideicommissum

relinquere, veluti fundum hominem vestem argentum pecu-

niam numeratam, et vel ipsum heredem rogare, ut alicui

restituat, vel legatarium, quamvis a l^atario legari non

1 possit Potest autem non solum proprias testator res per

oral fideicommissum siricto sensu: it could be appealed to when there
had been any kind of communication made by the testator to the heir or
other person, whether by writing or word of mouth : and by the words
* et neque ex scriptura .... intervenerit ' Justinian seems to have meant
that his regulation was to apply whenever there was neither a formal will
nor codicil, nor an oral declaration before five witnesses : the heir had to
swear o); al Kartktl^tdri (l>ii€iK6fifua'aov Theoph. For calumnia in the sense
of groundless or vexatious litigation see Bk. iv. i6. i inf.

Tit. XXrV. As has been observed above, a fideicommissum could
be charged on anyone who took a benefit by the decease : i. e. on heirs,
testamentary or intestate, legatees, fideicommissarii, donees mortis causa
(Dig. 32. 3. 3 ; 31. 77. i), the fiscus, if the estate came to it as bona vacan-
tia (Dig. 30. 1 14. 2), the heirs of all these persons (Dig. 32. 5. i : ib. 6. pr.),
and the father of a filiusfamilias, or master of a slave, who was instituted
or to whom a legacy of fideicommissum was given.

§ 1. Cf. Ulpian, reg. 25. 5 ' per fideicommissum relinqui possunt, quao

Tit. 34.] DE SINGULIS REBUS, ETC. 321

fideicommissum relinquere, sed et heredis aut legatarii aut
fideicommissarii aut cuiuslibet alterius. itaque et legatarius
et fideicommissarius non solum de ea re rogari potest, ut earn
alicui restituat, quae ei relicta sit, sed etiam de alia, sive
ipsius sive aliena sit. hoc solum observandum est, ne plus
quisquam rogetur alicui restituere, quam ipse ex testamento
ceperit: nam quod amplius est, inutiliter relinquitur. cum
autem aliena res per fideicommissum relinquitur, necesse est
ei qui rogatus est aut ipsam redimere et praestare aut
aestimationem eius solvere. Libertas quoque servo per 2
fideicommissum dari potest, ut heres eum rogetur manu-
mittcre vel legatarius vel fideicommissarius. nee interest,
utrum de suo proprio servo testator roget, an de eo qui ipsius
heredis aut legatarii vel etiam extranei sit. itaque alienus
servus redimi et manumitti debet : quod si dominus eum non
vendat, si modo nihil ex iudicio eius qui reliquit libertatem
percepit, non statim extinguitur fideicommissaria libertas, sed
difTertur, quia possit tempore procedente, ubicumque occasio
redimendi servi fuerit, praestari libertas. qui autem ex
causa fideicommissi manumittitur, non testatoris fit libertus^
etiamsi testatoris servus sit, sed eius qui manumittit : at is,
qui direct© testamento liber esse iubetur, ipsius testatoris fit
libertus, qui etiam orcinus appellatur. nee alius uUus directo
ex testamento libertatem habere potest, quam qui utroque

per damnationem legari.* The rule 'ne plus quisquam rogetur alicui
restituere quam ipse ex testamento ceperit,' and the inference from it that v
a beneficiary may be charged with fideicommissa to the same extent to
which he is benefited, each admit of an exception : (i) ' si pecunia accepta
rogatus sit rem propriam, quamquam maioris pretii est, restituere, non
est audiendus legatarius, legato percepto si velit computare' Dig. 31. 70.
I : cf. the same principle applied to the manumission of the legatee's or
fideicommissarius' slave in Dig. 40. 5. 24. 12. Similarly if liberty was
bequeathed to a servus alienus the master could not refuse to sell or
manumit him if he had taken any benefit by the testator's decease. Cod. 6. ^
50. 13, Dig. 40. 5. 19. 1. (2) No fideicommissum could be validly imposed
on the Megitima pars' Cod. 3. 28. 32 ; ib. 39. pr. and i.

§ 2. See preceding note. In Gaius' time the refusal of the master to
sell a slave to whom a testator had bequeathed freedom by a fideicom-
missum had been fatal to the disposition : ' si dominus eum non vendat,
sane extinguitur libertas, quia pro libertate pretii computatio nulla inter-
venit ' ii. 265.

Y

S'ZT, INSTITUTIONUM UBRI QUATTUOR, [Lib. II.

tempore testatoris fuerit, et quo faceret testamentum et quo
moreretur. directo autem libertas tunc dari videtur, cum
non ab alio servum manumitti rogat, sed velut ex suo
3 testamento Hbertatem ei competere vult. Verba autem
fideicommissorum haec maxime in usu habeantur : peto, rogo,
volo, mando, fidei tuae committo. quae perinde singula
firma sunt, atque si omnia in unum congesta essent.

XXV.

DE CODICILLIS.

Ante August! tempora constat ius codicillorum non fuisse,
sed primus Lucius Lentulus, ex cuius persona etiam fidei-
commissa coeperunt, codicillos introduxit. nam cum dece-
deret in Africa, scripsit codicillos testamento confirmatos,
quibus ab Augusto petiit per fideicommissum, ut faceret
aliquid : et cum divus Augustus voluntatem eius implesset,
deinceps reliqui auctoritatem eius secuti fideicommissa prae-
stabant et iilia Lentuli legata, quae iure non debebat, solvit,
dicitur Augustus convocasse prudentes, inter quos Trebatium
quoque, cuius tunc auctoritas maxima erat, et quaesisse, an
possit hoc recipi nee absonans a iuris ratione codicillorum
usus esset : et Trebatium suasisse Augusto, quod diceret
utilissimum et necessarium hoc civibus esse propter magnas
et longas peregrinationes, quae apud veteres fuissent, ubi, si
quis testamentum facere non posset, tamen codicillos posset,
post quae tempora cum et Labeo codicillos fecisset, iam

Tit. XXV. When first recognised as binding under Augustus, codicilli
were informal documents in the nature of notes or memoranda containing
directions from the deceased to his heir, and employed principally for the
creation of fideicommissa — cXXtiroOr Iv dtaB^Kff yv^fj.r}s ovaTrX^paxrir Theoph.
Traces of this original formlessness even remain in the Digest, e. g. 29. 7.
6. I ; 31. 89. pr. : cf. Cod. 6. 42. 22. As soon, however, as they acquired
legal force, it became possible to do by codicilli much which hitherto had
required a testament : the result being, as Mr. Poste remarks, the practi-
cal abolition of what had till then been an unbending rule of testamentary
law, viz. the requirement of unity in the act of testation. Before this, no
disposition of property to take effect after one's death, apart from dona-
tiones mortis causa, had been valid unless the whole of it were made uno

Tit. 25.1 DE CODICILLIS. 323

nemini dubium erat, quin codicilli iure optimo admitte-
rentur.

Non tantum autem testamento facto potest quis codicillos 1
facere, sed et intestatus quis decedens fideicommittere codi^
cillis potest, sed cum ante testamentum factum codicilli
facti erant, Papinianus ait non aliter vires habere quam si

contextu, uno eodemque tempore: but a man 'might now distribute his
fortune in a series of fragmentary or piecemeal and unrelated disposi-
tions.' It is in this that the legal advance marked by the recognition of
codicilli consists, not in their freedom from form, which was corrected by
later enactments.

§ L Intestate codicilli ' nihil desiderant, sed vicem testament! exhi-
bent' Dig. 29. 7. 16. Those which accompany a will are merely acces-
sory to the latter, with which they stand or fall (' codicilli .... testamento
facto ius sequuntur eius ' Dig. loc. cit., * si ex testamento hereditas adita
non fuisset, fideicommissum ex huiusmodi codicilHs nullius moment!
erit ' ib. 3. 2), and as a general rule are read as part of the will itself :
' codicillorum ius singulare est, ut, quaecunque in his scribentur, p^rinde
haberentur ac si in testamento scripta essent ' Dig. ib. 2. 2. Occasionally,
however, the codicilli are looked at by themselves, and apart from the
will : e. g. if the testator is insolvent, or less than twenty years of age, at
the time of executing his will, and then subsequently, when solvent or over v
that age, manumit a slave by codicilli, the manumission holds good,
though it would have been invalid if made in the will, Dig. 29. 7. 4, ib. i.

There were at one time important differences in effect among codicils
according as they were or were not confirmed, antecedently or subse-
quently, by a will. By unconfirmed codicils fideicommissa alone could v
be created : by codicilli confirmati the testator could give legacies (Gains
ii. 270, Ulpian, reg. 25. 8), appoint testamentary guardians. Dig. 26. 2. 3.
pr., and directly manumit his own slaves : but under Justinian little re-
mained of these distinctions excepting that relating to tutoris datio.

It was usual for wills to contain a ' clausula codicillaris,' by which the
testator declared his desire, that if the will should prove invalid on any
ground it should have force as codicilli. Such declaration might be in
any form, and need not even mention the word codicils : * ex his verbis,
quae paterfamilias scripturae addidit : Tavrrjv rrfv BiaBrjKtjv PovXofiai €wai
Kvpiav M nd<nis cfovo-tof, videri eum voluisse omnimodo valere ea quae
reliquit, etiamsi intestatus decessisset' Dig. 28. i. 29.4. By this clause
the dispositions of the will were validated only so far as they would have
held good had they been originally executed as codicilli : thus they fell "^
to the ground unless the forms required for the execution of codicils
(3 inf.) were observed, or if the testator had not testamenti factio : ' sci-
endum est eos demum fideicommissum posse relinquere, qui testandi ius
habent * Dig. 30. 2. Subject to this, the effect of the clausula was to con-
vert the institution of the will into a fideicommissaria hereditas, Dig. 31.

Y a

324 INSTITUTIONUM LIBRI QUATTUOR.

special! postea voluntate confirmentur. sed divi Severus et
Antoninus rescripserunt ex his codicillis qui testamentum
praecedunt posse fideicommissum peti, si appareat eum, qui
postea testamentum fecerat, a voluntate quam codicillis ex-

2 presserat non recessisse. Codicillis autem hereditas neque
dari neque adimi potest, ne confundatur ius testamentorum et
codicillorum, et ideo nee exheredatio scribi. directo autem
hereditas codicillis neque dari neque adimi potest : nam per
fideicommissum hereditas codicillis iure relinquitur. nee con-
dicionem heredi instituto codicillis adicere neque substituere

3 directo potest. Codicillos autem etiam plures quis facere
potest: et nullam sollemnitatem ordinationis desiderant.

88. 17, binding on the intestate heirs, or those instituted in an earlier or
later testament. If, however, tiie ground of the will's invalidity was
violation of the rules relating to the legitima pars, the institution became
altogether void. The legacies and fideicommissa remained good in any
case."

§ 2. Nothing can be done by codicils affecting the direct universal
succession. To what is said in the text it may be added, that no invalid
institution could be validated by a codicillary confirmation, however
express. Dig. 29. 7. 2. 4 ; though such confirmation, and also pupillary
substitutions made by codicils, would be upheld by a ' benignior interpre-
-^ tatio* as fideicommissa. Dig. loc. cit.; 36. i. 76. So too the heir's name,
which the testator had omitted or suppressed in a will, might be supplied
in later codicilli, Dig. 28. 5. 77 : and in the same way a testator might
declare the institutus of an earlier will indignus, whereby his portion was
forfeited to the fiscus. Cod. 6. 35. 4. Soldiers were exempted from the
restrictions of this section. Dig. 29. i. 36. pr.

§ 8. The statement of the text that codicilli were subject to no require-
ments of form is misleading : all that it means is that they could be ex-
pressed in any phrase or language. Constantine prescribed for intestate,
and Theodosius II for all codicils the same number and qualification of
witnesses as were necessary for a testament. Under Justinian they had
to be signed by the maker before at least five witnesses, Cod. 6. 23. 28. 6,
and to be signed and sealed by the latter in his presence : many writers,
however, hold that sealing was unnecessary. If these formalities were
not complied with, the procedure described in Tit. 23. 12 supr. might still
be appealed to, so ^ as the would-be codicils could be construed as
creating a fideicommissum.

EXCURSUS II.

lURA IN RE ALIENA OTHER THAN SERVITUDES.

Superficies is a right in rem (Dig. 43. 18. i. 3) of praetorian
origin to a building or part of one, either in perpetuity or for a very
extended term, without any right to the soil upon which it stands :
it is a ius in re aliena because ' superficies solo cedit ; ' the house is
properly owned by the owner of the soil : * superficiarias aedes appel-
lamus, quae in conducto solo positae sunt, quarum proprietas et
civili et naturali iure eius est, cuius et solum ' Dig. 43. i8. 2. The
modes in which it could arise are — (i) contract, whether it took the
form of gift, exchange, sale (Dig. 43. 18. i. i), hire (the annual rent
being called solarium), or permissive building upon land of the state
(Dig. 43. 8. 2. 17), or a private person; (2) legacy; (3) judicial
decree. Whether it could be acquired by usucapio is much disputed :
see Dig. 6. 2. 12. 3 ; 41. 3. 26. Superficies was alienable inter vivos
or by will (Dig. 43. 18. i. 7), was heritable (Dig. 10. 2. 10), and
could be made the subject of a pledge or servitude. Dig. 13. 7. 16.
2 ; 43. 18. I. 6 and 9. For the protection of his right the superfici-
arius could bring in their ' utilis ' form all the actions available to the
dominus — rei vindicatio, negatoria, confessoria, and Publiciana, Dig.
ib. I. I. 3 and 9, Dig. 6. i. 73. i ; and he had a special interdict de
superficie (Dig. 43. 18. i. 2) analogous in operation to uti possidetis.
Of the building itself the superficiarius had only detention : of his
right he had quasi-possession, and consequently could bring directly
the interdicts unde vi, Dig. 43. 16. i. 5, and de precario, Dig. 43. 26.

2.3-

The origin of Emphyteusis may perhaps be found in the leases of
public land for cultivation given to private persons by the state, the
enjoyment of which Ulpian tells us (Dig. 43. 8) was protected by the
praetor by means of an interdict de loco publico fruendo. As how-
ever Niebuhr (R&m. Geschichte, i. p. 171. 2) has shown, the amount
of the public land was enormously reduced by the agrarian laws of
the later Republic, the foundation of military colonies, and the grants
made to his victorious soldiery by Vespasian : but the practice of

326 EXCURSUS 11.

letting their lands out for tillage at a rent (vectigal) was adopted by
the collegia of priests and municipal corporations, and the ordinary
duration of the term seems to have been constantly growing until a
lease in perpetuity became the most usual form of the tenure. The
lessee in such cases enjoyed the protection of the interdict already
referred to : and though it would seem that in Gaius' day (iii. 145)
his interest was conceived as contractual only, it had by the time
when Paulus wrote definitely acquired the character of a right in rem,
which could be asserted even against the lessor himself when non-
payment of rent was not alleged : * agri civitatum vectigales vocantur,
qui in perpetuum locantur, id est hac lege, ut quamdiu pro his
vectigal pendatur, tamdiu neque ipsis, qui conduxerint, neque his,
qui in locum eorum successerunt, auferri eos liceat. Qui in perpe-
tuum fruendum conduxerunt a municipibus, quamvis non efficiantur
domini, tamen placuit competere eis in rem actionem adversus ipsos
municipes, ita tamen, si vectigal solvant,' Dig. 6. 3. i and 2 : in Dig.
39. 2. 15. 26 this action is called actio vectigalis. The approximate
date of this development suggests that it was due to juristic rather
than to praetorian action. Similarly, though not owner (Dig. loc.
cit.) the lessee of ager vectigalis might bring an actio confessoria
utilis (Dig. 8. I. 1 6) for the vindication of servitudes appurtenant to
his land, and other actions which properly lie only at the suit of an
owner (Dig. 47. 7. 5. 2).

In the Greek provinces of Rome perpetual leases of agricultural
land seem to have been commonly granted by private individuals no
less than by Corporations {^vrtvais, intKapuria) ; and in the Eastern
portion of the Empire the practice was extensively adopted by large
landowners of all kinds, including the Emperor and Fiscus. The
provincial usages, and the jurist law relating to ager vectigalis, were
the basis of the legislation on the subject which commences with the
Christian Emperors. In this the tenure is termed Emphyteusis, and
lands so held praedia Emphyteutica or Emphyteuticaria : the annual
rent is termed pensio or canon more often than vectigal. The pre-
cise nature of the lease and of the Emphyteuta's right, which in Gaius'
day had been matters of dispute, was determined by Zeno (Cod. 4.
66. I, Bk. iii. 24. 3 inf.), who enacted that the transaction should be
neither sale nor ordinary hire, but be governed by special rules of its
own : his settlement of the law passed with little or no alteration into
the Corpus iuris of Justinian.

Writing was necessary for the creation of an Emphyteusis if the
land belonged to the church or a charitable foundation (Nov. 120. 6.

lURA IN RE ALIENA OTHER THAN SERVITUDES. 327

2) ; in other cases only if it was desired to introduce some modifica-
tion into the ordinary rules governing the tenure (Cod. 4. 66. i).
The Emphyteuta was entitled to the complete use of the land, with-
out being subject to the limitations imposed on the usufructuary (p.
223, supr.). He became the owner of its fruits by separation (Dig.
22. I. 25. I : see note on Bk. ii. i. 35), and might freely alter its
character, though he could not claim any compensation for improve-
ments, provided he did it no permanent injury (Nov. 7. 3 ; 120. 6) :
in that event he must indemnify the owner, and might even be evicted
if that owner were a church or charitable foundation (Nov. 120. 8).
His rights were heritable, and alienable both inter vivos (Cod. 4. 66.
3) and by will: he could mortgage them (Dig. 13. 7. 16. 2), and
create servitudes over the land available so long as his interest
endured (Dig. 30. 71. 5-6). In the form of actiones utiles he enjoyed
all the remedies of an owner, and like the superficiarius he had deten-
tion of the land and quasi-possession of his own interest, being
thereby entitled to avail himself of the possessory interdicts.

His chief duties were to pay his rent and all taxes assessed upon
the land (Nov. 7. 3. 2 ; 1 20. 8), and so long as his rent was unpaid
the owner might prevent him and others claiming through him from
exercising any rights over it (arg. Dig. 13. 7, 17). He was liable
to eviction (i) if he was in arrear with taxes for three years
(Cod. 4. 66. 2) : (2) if his rent was unpaid for the same time,
or two years if the owner was a church or charitable foundation : (3)
if he neglected his duties on alienation (Cod. 4. 66. 3). Unlike the
colonus or ordinary farming tenant, he was not entitled to any remis-
sion of rent- on account of bad seasons or difficulty in getting in his
crops (Cod. ib. i : see iii. 24. 3 inf.). If he proposed to alienate his
interest, he was bound to give his lord notice, and obtain his assent
and approval of the person of the alienee : this could be refused only
on reasonable grounds, and must otherwise be given within two
months of the application. The alienee became liable for the alienor's
arrears of rent (Dig. 30. 39. 5) and the lord was entitled to a com-
mission or fine of two per cent, on the purchase money or value of
the holding, besides having, if he chose to exercise it within two
months, the right of pre-emption at the price agreed upon (Cod. 4.
66. 3). The modes in which Emphyteusis arose are substantially
the same with those for the creation of superficies, and the doubt as
to the admissibility of usucapion applies to both.

The mention of pignus, the last of the three iura in re aliena which
are not servitudes, makes this the most convenient place for discus-

3a8 EXCURSUS II.

sing the difTerent forms which pledge or mortgage took in Roman
law. The object of pledge is to give a creditor a real security in
addition to the personal security of his debtor. If the creditor relies
for satisfaction of his debt solely on a general belief in his debtor's
ability and willingness to meet his liabilities, he contents himself with
a personal security, and if the debtor's assets prove insufficient, he
must/n? tanto be a loser : but if by any means he obtains rights
over some definite portion of the debtor's property, to which he can
resort in the event of non-payment, his security is real, * quia expedit
ei pignori potius incumbere quam in personam agere' Bk. iv. i. 14
inf. Real security, in short, is a means of protecting a creditor
against the risk of the debtor's insolvency : for creditors who are only
* personally ' secured have no rights against the specific property to
which the * really ' secured creditor can resort until the latter has
been paid in full. Bearing this in mind, it is clear that that form of
real security is the most satisfactory which, while it absolutely secures
the creditor, causes the least inconvenience in other ways to the
parties concerned. It is important to observe how far these condi-
tions respectively are satisfied by the different forms of real security
known to the Roman lawyers, and also how far these themselves
belong to the department of iura in re aliena.

The earliest form was that known as fiducial a term which here
bears the same meaning as in connection with deposit, emancipation,
and coemption, the general idea being that of a conveyance under
an agreement of trust, whereby the transferee is laid under an obli-
gation to deal with the person or property conveyed to him in a
particular manner.' The aim of real security was obtained by the
debtor's conveying specific property (if res mancipi, by mancipation,
if nee mancipi, by in iure cessio) to the creditor, upon terms that the
latter shall reconvey upon payment of the debt and such interest as
might be agreed upon within a specified time : * fiducia est cum
res aliqua sumendae mutuae pecuniae gratia vel mancipatur vel in
iure ceditur ' Isidor. orig. 5. 25 : Gaius ii. 59. The effect of the
transaction was thus to transfer the property in absolute ownership
(subject to the trust agreement) to the creditor: hence a striking
resemblance to the English mortgage of realty. Consequently, the
creditor could, subject to the terms of his fiducia, deal with it as he
pleased, though any gain he made by it until the debtor lost his right
of redemption went to reduce the principal debt : * quidquid creditor

^ See Muirheady Roman Law, pp. 1.^9-143.

lURA IN RE AUENA OTHER THAN SERVITUDES. 329

per fiduciarium servum quaesivit sortem debiti minuit ' Paul. sent,
rec. 2. 13. 2 : he had the right of sale necessarily, as being dominus,
though if he exercised this right before the day fixed for payment had
passed he did so at his peril, and of it he could not deprive himself
even by express agreement, Paulus 1. c. 5. But the debtor, though
no longer owner, could still sell it as well : for (Bk. ii. i. 41 supr.)
he could not be compelled to transfer to the vendee until the latter
had paid the price, and with this he could redeem the property, and
so make a good title : but he could not sell to the creditor, for ' suae
rei emptio non valet.' In the event of sale by the creditor the
debtor was entitled to any surplus after satisfaction of the debt,
Paulus 1. c. I : and it seems probable that, in the absence of agree-
ment to the contrary, he might redeem the property at any time so
long as the creditor had not yet parted with it. Such contrary
agreement usually took the form of a foreclosure clause (lex com-
missoria), providing that in default of punctual payment the fiducia
should lapse, and the property vest absolutely in the creditor : this
was prohibited for all forms of pledge by Constantine, but foreclosure
was reintroduced in a modified form by Justinian. The remedy by
which the debtor enforced his rights against the creditor was the
actio fiduciae, condemnation in which entailed infamia, Gaius iv. 182.
The advantages of fiducia, as a species of real security, lie in
the fact that no subsequent dealing with the property by the debtor
can prejudice the creditor, so that collisions between different creditors
become impossible: its faults are mainly that only such kinds of
property can thus be used which admit of mancipatio or in iure
cessio (by which provincial land was excluded), and that the debtor
was deprived of the use and enjoyment of the object pledged. This
last inconvenience, however, was frequently obviated by his being
allowed to receive it back on hire or as precarium. If the debtor
after paying his debt acquired possession of the property and retained
it for a year, he became its owner again (usureceptio ex fiducia,
Gaius ii. 59. 60) : for this variety of usucapion neither bona fides nor
iusta causa possessionis was required.

When possession had been raised to a I^al interest by the praetor's
introduction of special remedies (possessory interdicts) for its protec-
tion, a new form of real security, called pignus, came into existence,
the transaction consisting in mere delivery (traditio) of possession of
the object (as distinct from its ownership) from debtor to creditor,
with the understanding that the possession should be redelivered on
payment of the debt : * pignus est, quod propter rem creditam obli-

330 EXCURSUS II.

gatur, cuiusque rei possessionem solum ad tempus consequitur
creditor, dominium penes debitorem est ' Isidor. orig. 5. 25, * proprie
pignus dicimus, quod ad creditorem transit, h)rpothecam, cum non
transit, nee possessio, ad creditorem ' Dig. 13. 7. 9. 2 ; cf. Bk. iv. 6. 7
inf. In origin perhaps pignus was regarded less as a form of security
than as a device by which the debtor, being deprived of the posses-
sion and enjoyment of property, would be strongly induced to make
every effort to discharge his liability as soon as possible. This
conjecture is strengthened by the fact that a right of sale was not
incidental to a pignus, as such ; if the creditor had it at all, it was
only by express agreemeni: (Bk ii. 8. i supr. from Gaius ii. 64), and
to sell it without such right was theft in law : * si is qui pignori rem
accepit, cum de vendendo pignore nihil convenisset, vendidit ....
furti se obligat ' Dig. 47. 2. 74. As a matter of common right, the
creditor was entitied only to retain possession of the object pledged ;
he might not use it : * si pignore creditor utatur, furti tenetur ' Dig.
ib. 54 pr. : cf Bk iv. i. 6 inf.: but where the object was a fruit-
bearing thing, it was often agreed that the pledgee should be entitled
to the fruits in lieu of interest : the pignus was then called specifi-
cally antichresis. If the pledgee had bargained for and exercised a
power of sale, he was taken to sell as the pledgor's agent (* nihil enim
interest utrum ipse dominus per se tradat alicui rem an voluntate eius
aliquis' Dig. 41. i. 9. 4: cf. * voluntate debitoris intellegitur pignus
alienari ' Gaius ii. 64), and therefore would vest in the purchaser the
ownership or whatever other right belonged to the latter. Of course
the debtor was entitled to any surplus of the purchase money after
satisfaction of the creditor's claims. Pignus then, in itself, is not a
ius in re aliena. The sole right which the pledgee could assert
against the world was the right of possession, and this is never treated
as a ius in re aliena by the Roman lawyers. Though it marks a
considerable advance upon fiducia, it laboured under four defects.
It deprived the debtor of the possession of his property, though in
respect of land this might be safely obviated by allowing him to hold
it as precarium or on hire. The same object could not be pledged
to two different people, though possibly ample security for both debts,
for * plures eandem rem in solidum possidere non possunt' Again,
although no doubt things could be pledged in this way which could
not be the subject of a fiducia, such as provincial land, no security
could be thus created except over corporeal things which admitted of
physical possession. And, finally, in respect of some species of pro-
perty pignus was no real security at all : even if the pledgee were in

lURA IN RE AUENA OTHER THAN SERVITUDES. 331

possession of a praedium Italicum, the pledgor could mancipate it to
a third person (the transaction not being required to take place on
the land, Gaius i. 121), who could recover it by real action.

The latest and most refined form of pledge is hypotheca, in which
there was no conveyance of either ownership or possession ; it was
effected by a bare formless agreement between the debtor and cre-
ditor, that certain property, general or specific, of the former should
be liable in full for his debt to the latter, who should be entitled to
sell in default of payment within a prescribed time : * contrahitur
hypotheca per pactum conventum, cum quis paciscatur, ut res eius
propter aliquam obligationem sint hypothecae nomine obligatae :
nee ad rem pertinet, quibus fit verbis' Dig. 20. i. 4. Such an
agreement, in itself, was inoperative to create rights either real or
personal : it was, however, enforced by the praetor who, even before
Cicero's time (ad Fam. 13. 56), treated the right of sale as a ius in
re aliena, of which the creditor could not be deprived by any subse-
quent act of the debtor, and which he could successfully assert (by
remedies of his own introduction) against any other person what-
soever, whether the creditor, his successor, alienee, or trustee in
bankruptcy. The steps by which this praetorian innovation reached
its full development are these. It was first introduced in the joint
interest of landlord and tenant farmer, in order to enable the latter
to pledge his farming stock and crops as security for his rent, a pur-
pose for which pignus was not conveniently applicable : subsequently
it came to be recognised as a universal mode of pledge, of use
between debtors and creditors of every kind, though the rights of
the latter, in cases other than that of landlord and tenant, were
protected by remedies differing slightly in form and name from
those then employed: for these, and the relation between them,
reference should be made to Bk. iv. 6. 7, ib. 15. 3 inf., and the notes
on both passages.

Hypotheca possessed great advantages over the earlier forms of
pledge, of which fiducia was quite obsolete in the time of Justinian.
The pledgor was never deprived of the use and possession of his
property, and yet the creditor was absolutely secured. The class of
pledgable objects was largely augmented : money could now be lent
on the security of things not yet in existence, e. g. future crops and
expectations (^ et quae nondum sunt, futura tamen sunt, hypothecae
dari possunt, ut fructus pendentes, partus ancillae, fetus pecorum'
(Dig. 20. I. 15. pr.), or of mere incorporeal rights, real and personal
(Dig. ib. 9. I ; ib. II. 2; Dig. 13. 7. 18. pr,). Moreover it became

33* EXCURSUS IL

possible to create a general mortgage, which was done by statute in
favour of many classes of persons : e. g. of a wife, or other person
who gave a dos, over the property of her husband, to secure its
return, and of pupils over that of their guardians. So too the land-
lord of a house had a tacit hypothec over things * invecta and illata,*
as security for his rent : * eo iure utimur, ut quae in praedia urbana
inducta illata sunt, pignori esse credantur, quasi id tacite convenerit :
in rusticis praediis contra observatur ' Dig. 20. 2. 4. pr. : and the lessor
of agricultural land had the same implied right over the crops : * in
praediis rusticis fructus, qui ibi nascuntur, tacite intelleguntur pignori
esse domino fundi locati, etsi nominatim id non convenerit ' Dig. ib.
7. pr. Lastly should be noticed the new power of pledging the same
property to several persons in succession, though to do this without
notice to prior pledgees rendered the debtor liable to a charge
of stellionatus. Dig. 13. 7. 36. i. Hence, too, questions of collision
and priority among competing pledgees, which occupy so laige a
space in modern Roman law : a subject, however, too wide to be
touched upon here.

One result of the general use of hypotheca was the extension of its
rules and remedies to pignus. In the time of Ulpian the right of sale
had become an essential and inherent part of every pignus : * etsi non
convenerit de distrahendo pignore, hoc tamen iure utimur, ut liceat
distrahere, si modo non convenit ne liceat. Ubi vero convenit ne
distraheretur, creditor, si distraxerit, furti obligatur, nisi ei ter fuerit
denuntiatum ut solvat, et cessaverit' Dig. 13. 7. 4. The remedies
again were the same, whether the pledge was effected by pignus or
hypotheca : so that in Justinian's time (as he remarks, Bk. iv. 6. 7
inf.), there was but one surviving point of difference between them :
if possession of the object pledged passed to the creditor, it was
called pignus, if not, hypotheca; cf. Dig. 20. i. 5. i (Marcianus) :
* inter pignus et hypothecam tantum nominis sonus differt.' The
enumeration of pignus among the iura in re aliena is thus accounted
for : it is a right in the property of another, sensu Romano, only qua
hypotheca.

The modes in which the right was extinguished require a brief
notice. It ceased to exist with the destruction of the object pledged,
Dig. 20. 6. 8. pr. : it might be released, without affecting the debt
which it secured, and that either by legacy or agreement inter vivos,
Dig. ib. 4. I : and under certain circumstances it could be destroyed
or affected by usucapio or limitation of actions : see Dig. 41. 3. 44.
5 ; Cod. 7. 36. I ; 8. 30. 2. But as a general rule the right of pledge

lURA IN RE ALIENA OTHER THAN SERVITUDES. 333

ceases to exist only along with the principal debt : for the ways in
which this might occur see Bk. iii. 29 inf. and notes. As to the
exercise of the right of sale in particular it should be observed, (i)
that the creditor cannot sell until the ^ day fixed for payment has
passed ; (2) he must give notice to the debtor of his intention to
sell, and Justinian even enacted (Cod. 8. 34. 3. i) that he should be
unable to sell until two years had elapsed from notice so given ;
(3) neither pledgor nor pledgee can become the purchaser ; (4) the
debtor is entitled to any surplus from the proceeds of the sale after
satisfaction of the debt. If no one could be found to purchase
at a reasonable price, the pledgee could in Justinian's time (by
a kind of reintroduction of foreclosure. Cod. 8. 35) petition the
Emperor to adjudge him the property in full ownership : but even
such adjudication was not final, the debtor being still entitled to
redeem within two years from its date.

EXCURSUS III.

POSSESSION.

Possession must be conceived as distinct from ownership or do-
minium. In most cases, of course, the two are conjoined : the
owner has possession of his property. Often, however, they are
separated : the landlord owns the soil which his tenant possesses :
his solicitor has possession of the title-deeds to his estates : the
finder of property possesses it, though another is its owner : and
numberless other cases will at once occur in which the owner and
the possessor of a thing are different persons. But (it may be
argued) though this is so, yet the relation of a person to a thing
which he possesses is immaterial for purposes of law: the law
recognises no rights less than that of ownership or its fragments.
Because I happen to have found a bank note, and then lose it again,
I cannot recover it from the second finder : possession in itself is not
a legal right at all. If this were the case, law-books wpuld be spared
one of their most difficult chapters ; but, as a matter of fact, all legal
systems treat possession, under certain circumstances, as a right,
distinct from and independent of ownership, and guarantee it pro-
tection. It remains to see what, under Roman law, those circum-
stances are.

Mere possession, in itself, is no right at all. A person * merely '
possesses who has the physical power of dealing with a tangible
object to the exclusion of every one else, and is aware of such
power: possessio appellata est ... a sedibus quasi positio, quia
naturaliter tenetur ab eo qui ei insistit. Dig. 41. 2. i. pr. Of such
a relation between person and thing, by itself, the law takes no
notice ; but being the foundation of all legally recognised posses-
sion it requires to be carefully noted. Very frequently it is called
naturalis possessio (e.g. Dig. 41. 2. i. i), but it is also denoted by
the expressions custodia (Dig. 36. 4. 5. pr.), in possessione esse (Bk.
iv. 15. 5 inf.), tenere (Dig. 41. 2. 24), naturaliter possidere (Dig. ib.
12. pr.). We shall call it uniformly Detention. For examples of

POSSESSION. 335

persons who had only Detention, as distinct from possession proper
(e. g. the slave, filiusfamilias, agent, borrower, lessee, and depositary)
reference may be made to Mr. Posters Gaius, pp. 641-645. The
idea of Detention is limited to certain classes of objects. Nothing
can be * detained ' (and therefore, as we shall see, possessed) which
is not corporeal ; hence no one can stand in this relation to a mere
right (p. 221 (5) supr.). The right to interdicts, however, was grounded
upon a disturbance in some unlawful manner of the exercise of
ownership, and the exercise of other rights, as well as that of owner-
ship, can be unlawfully disturbed ; so that it seemed only logical that
here too unwarranted interference should be guarded against by the
same remedies. Accordingly, the enjoyment of iura in re aliena was
protected by possessory interdicts; they were deemed to be quasi-
possessed (*iuris quasi possessio' Dig. 8. 5. 10, * possessionem vel
corporis vel iuris * Dig. 43. 26* 2. 3). The expression, as Savigny
remarks, is an improper extension of analogical language; quasi
possessio indicates the exercise of a ius in re aliena, being related to
the latter in the same way as possession stricto sensu is to dominium.
Nor is it possible to ' detain ' an object which, though corporeal, is
indeterminate, such as an uncertain portion of a thing. Finally, the
idea of detention being that of exclusive physical control, we have
the rule *plures eandem rem in solidum possidere non possunt'
Dig. 41. 2. 3. 5; i. e. if we read that a previously existing possession
(and a fortiori detention) still continues, no new possession (and
a fortiori AeXexition) can possibly have commenced; and conversely,
if the law recognises a new possession, the previous possession must
have ceased to exist.

When to this Detention is superadded a further (mental) element,
it becomes Possession, an interest protected by special legal reme-
dies, viz. interdicts. That mental element is the intention, on the
part of the detainer, of dealing with the thing detained as owner ; of
exercising over it, on his own behalf, the rights which an owner
exercises on his: *furiosus et pupillus sine tutoris auctoritate non
potest incipere possidere, quia affectionem tenendi non habent, licet
maxime corpore suo rem contingant, sicuti is qui dormienti aliquid
in manu ponat' Dig. 41. 2. i. 3. This intention is usually called the
animus domini or sibi habendi ; the phrase does not occur in the
authorities, the nearest approach to it being Theophilus' 9€fuaBal
€<m tA ^vxS li*(nr6CovTos Karixfiv* It should carefully be marked, that
it is an intention; it has nothing to do with a belief that one is
owner (opinio or cogitatio domini), for the possessing thief or robber

33^ EXCURSUS III.

is as capable of the animus domini as the most innocent possessor,
and is as fully entitled to the protection of interdicts as the latter ;
'adversus extraneos vitiosa possessio prodesse solet' Dig. 41. 2. 53 ;
ib. 3. 5. In other words, possession is independent of bona fides :
' it is possession, whether iusta or iniusta ; ' the ius possessionis, the
right involved in possession, the right protected by interdicts, is
quite distinct from and independent of the ius possidendi, or right to
possess, which belongs not to the law of possession, but of owner-
ship.

There has been much learned discussion of the question whether
Possession is a fact or a right No doubt it differs from ownership
in requiring a de facto relation between a person and an object, and
to that extent it is a fact. But there is no doubt also that it has
legal consequences ^ and if that is so it seems to be little less than
quibbling to say it is not a right as well. Among those conse-
quences are its protection by legal remedies, already referred to, and
the facts that in some cases acquisition of possession is acquisition
of ownership either at once (occupatio, p. 201 supr.) or, under special
circumstances, in conjunction with lapse of time (Bk. ii. 6. supr.).

Possession then, as a legal right, consists of two elements, deten-
tion and the animus domini. No one possesses who has not the
exclusive physical power of dealing with an object, coupled with the
intention of dealing with it as his own against all the world ; the pre-
sence of these two marks entitles the person in whom they are united
to the protection of interdicts. This possession, as distinct from
detention, is called in the authorities most frequently possessio
simply, but sometimes also possessio civilis (e. g. Dig. 41. 2. 24 ; 10.
4. 7. i; 45. I. 38. 7); Savigny terms it * possessio ad interdicta;'
we shall call it uniformly Possession.

In respect of three cases the preceding statement requires a slight
modification. Possession is ascribed in the Digest to the pledgee in
a pignus (41. 3. 16), the sequester or stakeholder (16. 3. 17 ; see on
Bk. iii. 14. 3 inf.), and ordinarily to the precario rogans (43. 26. 4. i),

^ 'Possession, though no right, has legal consequences.' Windscheid,
Lehrbnch, § 148. ' Possession is no right, and as sach gives no right to the thing
which one possesses. It is merely a state of things (zustand), a fact, a mere de
facto relation to a thing into which a man has brought himself : which, however,
inasmuch as it may under certain circumstances bring about a right to the thing,
enjoys in itself the protection of the law against arbitrary disturbance. This
claim to be protected in possession is certainly a right — a jus possessionis — that is,
a right of the possessor implicated with the fact of possession.' Wachter, Pan-
dekten, fi 122.

POSSESSION. 337

yet in no case can they be said to have the animus domini, for they
all recognise and respect the dominium of another person. In these
cases, then, for the animus domini the law allows the substitution of
an animus alienam possessionem exercendi; they are termed by
Savigny cases of derivative or representative possession, and are
clearly distinguishable from those of the agent, borrower, ordinary
bailee, hirer, usufructuary, and the missus in possessionem (Dig. 41.
2. 3. 23; ib. 10. i), none of whom have more than Detention.

Possession is acquired by the production of its two elements, viz.
corpus or factum (when this alone is present there is detention) and
animus ; ' adipiscimur possessionem corpore et animo, neque per se
animo aut per se corpore ' Dig. 41. 2. 3. i. The act by which corpus,
the physical control, is produced, is called usually apprehensio, or,
where effected with the consent or co-operation of the prior holder,
traditio. Apprehensio of immoveables most commonly takes the
form of actual presence upon the land (Dig, 41. 2. 3. i), but actual
entry is not necessary if one stand near enough to overlook it all, for
here one's control over it is as great as if one had actually entered
(Dig. 41. 2. 18. 2). Nor, to * apprehend' moveables, is it strictly
necessary to grasp them with the hand ; it is sufficient if the thing
could at any moment be so actually grasped as to give the exclusive
control (Dig. loc. cit. i. 21); in both cases it is not the nearness, nor
even the presence, of the object which constitutes corpus, but the
capacity of physical control to the exclusion of all others ; thus,
a man has not detention of objects placed in his house, if it is in the
occupation of another, e. g. a lessee.

The animus domini will of course usually precede, as well as
accompany, apprehension. But sometimes it arises later : e. g. a
person has merely Detention, without the animus ; he then deter-
mines to hold for himself exclusively ; the Detention is converted
into Possession (for the analogous case of detention passing into
dominium see Title i. 44 supr.). Where A has detention of an
object which B possesses (e. g. if he is B's lessee), and it is then
agreed that A shall possess instead of detain, A becomes possessor
ipso facto. This is called traditio brevi manu ; but the sole will of a
person who detains by permission or on behalf of another cannot, by
itself, give him Possession : see (3) p. 340 inf.

The animus domini implies volition ; hence from lack of this power
the following classes cannot acquire Possession : (i) Juristic persons,
Dig. 41. 2. I. 22 ; (2) persons of unsound or weak intellect, ib. i. 3 ;
(3) pupilli of tender age, unless they have their guardians' auctoritas;

Z

338 EXCURSUS III.

but possession can be acquired for these three classes by agents and
the law r^ards the possession somewhat anomalously as theirs ; Dig.
41. 2. I. 22 ; ib. I. 3; ib. i. 20: (4) persons in potestas, or manus,
cannot acquire more than Detention ; for, being incapable of holding
property, they are incapable of animus domini, except in relation to
peculium castrense or quasi castrense ; * qui in aliena potestate sunt,
rem peculiarem tenere possunt, habere et possidere non possimt,
quia possessio non tantum corporis sed et iuris est' Dig. 41. 2. 49. i.
Again, certain things are excluded from possession on this ground,
viz. res extra commercium. Dig. 41. 2. 30. i, though it is admitted in
respect of ager pubhcus and provincial soil ; and the animus domini
is inconceivable in relation to an object which cannot itself be con-
ceived as a single individual thing. Hence the question arises, how
far is it possible to acquire Possession of a single part of a whole ?
Where the single part is to be possessed alone, this is possible
(z) where the part is in point of fact a whole itself: e.g. a plot of
land of definite extent, which the previous possessor happens to have
treated as part of a larger whole : and (2) where the division of the
whole into parts is merely intellectual, provided the ideal part to be
possessed is precisely conceived as a definite fraction of that whole.
But where the part is to be possessed in and through the whole, the
rule is, that though the whole is possessed, the parts individually are
not. For applications of this principle, which is of great importance
in the usucapio of buildings, see Poste, Gains pp. 647-8.

We can also acquire Possession through other persons as well as
through ourselves. For this the following conditions must be
satisfied :

(i) The other person (whom for convenience sake we will call the
agent) must have Detention, and also intend to acquire Possession for
the principal.

(2) The principal, or would-be possessor, must intend to acquire
Possession through the other, though this intention will be implied
where that other is his own slave acquiring ex peculiari causa, a
guardian, curator, or the agent of a juristic person.

(3) There must be a certain legal relation between principal and
agent. Possession can be acquired through slaves by the dominus
(provided he possesses the slave), the bona fide possessor, and the
usufructuary ; through filiifamilias by the pater (for persons in manu
or mancipio see Gaius ii. 90) ; through guardians or curators by the
ward, and through free agents by any principal who has previously
given them a commission, or who has subsequently ratified their acts

POSSESS/ON. 339

(Dig. 41. 2. I. 20; ib. 9. 34. 2). Where the agent already has
possession of the object prior to his commission, the mere subse-
quent exercise of mil turns his possession into detention; the
possession vests immediately in the principal. This, which is the
converse of traditio brevi manu, is called constitutum possessorium ;
Dig. 41. 2. 18 : 6. I. 77.

Possession already acquired is retained by the continuing presence
of its two elements ; but the law does not require for its retention
so much 'energy' (so to speak) on either side as for its original
acquisition : see Poste, Gaius pp. 646-7. The question how pos-
session is retained is practically equivalent to that how it is lost ; and
it is lost by the cessation of either corpus or animus domini : ^ quem-
admodum nulla possessio adquiri nisi animo et corpore potest, ita
nulla amittitur nisi in qua utrumque (i. e. aut utrumque aut alter-
utrum, Sav. Possession § 30) in contrarium actum est ' Dig. 41. 2. 8 :
50. 17. 153. Corpus ceases so soon as the possessor loses his ability
of dealing with the thing himself, and of preventing others from
dealing with it ; this may occur by its destruction, by his altogether
forgetting where it is, or losing it from beyond his reach (except in
the case of a runaway slave, who is possessed till some one else
possesses him, or unless he bona fide believes himself free, Dig.
41. 2. 13. pr.); by its being stolen, or being taken in possession
under a magisterial decree ; by the possessor's being taken captive,
or by the thing itself ceasing to be in commercio. In order to lose
Possession animo solely, more is required than a mere cessation of
the previous mental attitude ; there must be a new determination of
the will, an animus in contrarium actus, a deliberate desire to transfer
or abandon possession. Consequently, persons of weak or unsound
mind and pupils cannot lose Possession animo solo. In many cases
of course Possession is lost animo et corpore simul ; viz. in abandon-
ment, conveyance, manumission of slaves, and violent ejectment
from land on which the ejected person fears to reenter.

As to loss of Possession through agents, it should be observed,
(i) That mere intention of the principal no longer to possess is
sufficient ; Detention may remain, but one of the elements of Pos-
session, animus, has ceased to exist (2) On the other hand, if,
though the principal no longer has detention, his representative has,
the Possession is not terminated : * si quis me vi deiecerit, meos non
deiecerit .... per eos retineo possessionem' Dig. 43. 16. i. 45 : nor is
it lost even by cessation of the representative's Detention, unless
Detention becomes physically impossible, or Possession is assumed

Z %

340 EXCURSUS III.

by some one else. (3) For the representative to convert his own
Detention into Possession, there must be either traditio brevi manu
(contrarius animus on the part of the principal), or (Dig. 41. 2.
3. 18) some contrectatio on the other's part amounting to furtum.
(4) Misdealing by the agent (i. e. conveyance or abandonment) does
not terminate the Possession unless another party directly assumes
it. (5) Mere termination of the relation of principal and agent does
not, in itself, extinguish the Possession, Dig. 41. 2. 38 ; ib. 25. i ;
ib. 40. I.

A question which has been much discussed is why Possession, apart
from bona fides and title, came to be treated as a right, and protected
by legal remedies. To this Savigny answers, that the violation of
Possession, being in itself no wrong, can originally have been re-
dressed only because it went hand in hand with some violation of an
actual right, and that full justice could not have been done in the
matter of this latter violation, unless at the same time the Possession
were protected. All the possessory interdicts, he says, presuppose
some wrongful act. In cases of violent dispossession this is obvious \
but even where there is no violence the idea is the same ; e.g. in the
application of the interdict de precario there is the wrongful act of
abusing another person's good nature : cf. Holland's Jurisprudence,
p. 130. Ihering (Uber den Grund des Besitzesschutzes) thinks that
Possession was protected originally in the interest of the owner, in
order to relieve him of the onus of proving his proprietary title, and
that the protection came necessarily to be extended to possessors
who were not owners ; but if this were true, a possessor would never
be protected against an owner, and the relief imagined would be
afforded not to the possessor as such, but only to him whose posses-
sion was wrongfully infringed *. On the historical question, in what
connection the necessity of legal protection was first felt, Savigny
adopts the theory of Niebuhr, that possessory interdicts were
originally devised in order to guard the interest of the individual
citizen in the ager publicus, which the State permitted him to occupy
and enjoy, and were subsequently extended to the Possession of
private property, moveable and immoveable. In support of this it is
pointed out that possessio and possidere are very uniformly used to
technically denote this kind of occupation, and that the interdicts
recuperandae possessionis relate only to immoveables ; other aigu-
ments are derived from the known facts of precarium and emphy-

^ Ihering'g theory does not seem at present to meet with much support : see
Wachter, Pandekten, note to § 12a : Windscheid, Lehrbuch, § 148, note 6.

.POSSESSION. 341

teusis (Savigny, Possession § 12*), A diflferent view is taken by.
Puchta, who connects the earliest protection of Possession with the
primitive form of Real Action. In this, both plaintiff and defendant
were, until decision of the suit, regarded by the law as equally
entitled to the dominium. It was necessary, however, that one of
them should be magisterially instated in the possession of the
disputed property pending litigation, and we learn from Gains
(iv. 16) how such interim possession was awarded. Having been
magisterially awarded, it must also be magisterially protected, and
this was done by an interdict ; a remedy which came subsequently
to be used for the protection of all Possession, independently of a
pending suit

Dr. Hunter (Roman Law, ist ed. pp. 195-222) believes that
Possessio entirely changed its meaning in the course of Roman legal
history. In origin he connects it with the technical incapacity of
aliens to own property iure civili rather than with the occupation of
ager publicus, and maintains that it properly means Equitable or
Gentile ownership. When, after the edict of Caracalla, all subjects
of the Empire practically became cives, its functions, in this connec-
tion, were exhausted, and it ' came to have precisely the same
meaning that it has in every system of law ; it is a temporary separa-
tion between the person exercising rights and the person invested by
law with rights.'

There is no evidence of this change of meaning, and nothing to
show that the Roman lawyer's idea of Possessio differed in the time
of Justinian from what it had been in that of Cicero, or that he con-
ceived Possession as otherwise than the very antipodes of dominium
(* nihil commune habet possessio cum proprietate ' Dig. 41. 2. 12. i :
ib. 52. pr. : cf. Dig. 43. 17. i. 2) ; or, finally, that the 'gentile ' owner-
ship of the alien (p. 199 supr.) was specially protected by interdicts ;
he recovered his property, not by an interdict, but by a real action,
fictitia oi* utilis perhaps, but still a remedy which recognised his
proprietorship. On the other hand, as all Possession, whether iusta
or iniusta, whether bona fide or mala fide, was protected by inter-
dicts, to dwell upon the close resemblance, the almost complete
material identity, between many cases of bona fide Possession, and
Equitable ownership, as Dr. Hunter does, is not to the point The
actio Publiciana was open to any possessor whose Possession could
ripen by usucapio into ownership ; and if he could bring it with
effect against not only third persons but the technically Quiritarian
owner as well (as where the owner of a res mancipi delivers it to

34a EXCURSUS III.

some one else with the intention of passing the property, Dig. 44. 4.
4. 32) his interest was more than Possession ; it was inchoate or
Bonitarian ownership, or, adopting an expression of Mr. Poste's
(Gaius p. 642), we may say that the ius in rem, and the interdict-
possession, are distinct though concurrent. The fallacy of arguing
that, because many cases of (bona fide) Possession are equivalent to
Bonitarian ownership, therefore (all) Possession is equivalent to
Equitable ownership, is obvious. In the law of Justinian the case in
which the plaintiff in an actio Pubhciana could prevail against any
and every defendant has disappeared with the abolition of the dis-
tinction between res mancipi and nee mancipi. It can now be
brought by one who has acquired possession in good faith (Dig. 6. 2.
7. 11-17 : 9. 4. 28) and with iusta causa (Dig. 6. 2. 13. pr) of an
object acquirable by ordinary usucapion (Dig. 6. 2. 9. 5) against any-
one who withheld possession from him except the owner, who could
repel him by the exceptio iusti dominii (si ea res possessoris non sit).
Dig. 6. 2. 16 and 17.

Dr. Hunter seems to have been led into what we cannot but
regard as other than a completely wrong theory by not rigidly con-
fining his attention to Possession — not this possession or that
possession, but all Possession — whether bona fide or mala fide.
His insurmountable difficulty lies in the impossibility of identifying
Possession, when accompanied by mala fides, with Equitable owner-
ship. Upon mala fide Possession he is inconsistent. In one
passage (p. 205) he says, * the interdicts were open equally to mala
fide possessors;' in another (p. 200), *the mala fide possessor of
moveables had no right against third persons.* The latter statement,
which is based solely on the inability of a mala fide possessor to
bring an actio furti or bonorum vi raptorum, is shown to be untrue,
so far as interdicts are concerned, by Savigny and Dr. Walker
(Selected Titles from the Digest, Introduction to Digest 41. 2) : and
interdicts are all that here we need concern ourselves with ; other
remedies are not for the protection of Possession, as such, at all. In
fact. Dr. Hunter's general position seems defensible only to this
extent, viz. that where a man has usucapion Possession, he also has
Equitable ownership.

For a discussion of the question, to what part of the Roman system
the doctrine of Possession logically belongs, see Poste, Gaius pp.
648 sqq. ; and for the possessory interdicts, and the cases to which
they were individually applicable, Bk. iv. Title 15, and notes inf.

INTRODUCTION TO BOOK III.

In this book the treatment of universal succession is continued, the
first subject considered being the mode in which a person's univer-
sitas iuris devolves on his dying intestate. This falls naturally into
two divisions, according as the deceased was free-bom or libertus.
Of the devolution of a free-bom man's universitas we have a full
historical account The first two Titles in the main describe the
classes of persons who succeeded an intestate under the law of the
Twelve Tables : in the first rank being the sui heredes to the ex-
clusion of all other descendants ; in the second the nearest agnate or
agnates, in preference to ascendants and all other collateral relatives
whatsoever. No portion of the Institutes presents so clearly the
(Contrast between modern and ancient law, or brings out more vividly
the exclusive regard paid to agnatic relationship in primitive society.
While pointing out the injustice which this system of succession
entailed upon many classes, especially emancipated children and
descendants or collaterals who traced their kinship with the deceased
through a female, Justinian takes occasion to describe briefly the
extent to which a remedy had been supplied by the bonorum possessio
intestati of the Praetor, a subject more explicitly treated in Title 9,
and also various disconnected changes made in the law by earlier
Emperors as well as by himself. To the most sweeping of the
Praetor's innovations, namely that by which he granted rights of
succession upon intestacy to persons related to the deceased by
cognation alone, though only in subordination to the classes recog-
nised by the Twelve Tables, the fifth Title is exclusively devoted; that
which follows details the mode in which the degrees of this natural
relationship are calculated. The third and fourth Titles deal with
two enactments of the dvil law passed in the latter half of the second
century, the SO. TertuUianum and Orfitianum, which redressed a
wrong arising from the Twelve Tables for which no adequate remedy
had been provided by the praetorian bonomm possessio. The first
of these preferred the mother to many of the agnates of her deceased
children : the second raised a woman's children from the rank of

344 INTRODUCTION TO BOOK III.

mere cognates, in relation to her, to that of sui heredes, thus giving
them a statutory right of succeeding her to the exclusion of her
agnates.

The intestate succession to freedmen is dealt with in Tide 7,
the earlier paragraphs of which give a historical summary of the old
rules in cases of both testacy and intestacy, and of the changes intro-
duced in the interest of the patron by the Praetor and the lex Papia
Poppaea. Between this, and a brief account of the curiously con-
trasted mode of succession to Latini luniani, a class of freedmen
which as we know was abolished by Justinian, is a statement of his
own setdement of the classes entitled to succeed upon the intestacy
of a civis libertus, and of the latter^s testamentary rights against the
patron. The modification which might conceivably be effected in
these rules by the exercise of a power, conferred by a senatusconsult,
of assigning any particular freedman to any particular child in one's
power is considered in Title 8.

The Roman law of intestate succession, especially to ingenui, is an
admirable illustration of the heterogeneous mass of rules which may
grow round any subject usually regulated by law where there is a
variety of legislative organs, often actuated by diverse motives, and
little anxiety in the supreme legislature or in the lawyer class to
reduce them to formal order and unity by some process of codifi-
cation. Technically, of course, the rules which, at the date of the
publication of the Institutes, decided on whom an intestate person's
universitas iuris should devolve, were enacted by Justinian himself;
historically, they originated either in the Twelve Tables, or in the
Edict relating to bonorum possessio, or in the later civil law, which,
either through senatusconsulta or imperial constitutions, conferred
at long intervals of legislation, and in an entirely disconnected
manner, rights of succession upon relatives of the deceased whom
the earlier law had altogether passed over. The main drift of this
series of changes was the same throughout; to fill up the voids
and correct the anomalies of the Twelve Tables; to substitute
cognation for agnation as the sole title a person could have to
succeed. No department of law called more imperatively for a
comprehensive simplification, such, for instance, as that which we
have seen Justinian eflfected in the law of Usucapion and Prescrip-
tion ; but the changes made in the Corpus Iuris are hesitating and
tentative, the most considerable perhaps being that in the classes of
bonorum possessores, necessitated by Justinian's reform in the
succession to liberti, of which a full account is given in Tide 9.

INTRODUCTION TO BOOK III. 345

When the Institutes were published, the three distinct bodies of
rules relating to one subject still coexisted side by side: the
successor of an intestate might base his claim on the Twelve Tables,
on the Edict, or on some enactment of the later civil law ; in the
second case, it is true, he was not technically heres, but, as we have
already seen, his rights were substantially identical with those of a
civil law successor. Cases were even still to be found, in which
agnatic relationship entitled a claimant to priority over others who,
if cognation alone were considered, would at least take with him pari
passu. It was not unnatural that Justinian should be dissatisfied
with his work, and by a Novel issued in the year a. d. 543 he
substituted for the system of succession which has here been
sketched a new scheme based entirely upon blood relationship, of
which an account is given in the notes to Title 9. 9.

Two other modes *quibus res per universitatem adquiruntur,-
though of far less interest and importance than inheritance, are
described in Titles 10 and 1 1. The first of these is the type of adop-
tion known as adrogation. When a person sui iuris gave himself in
adoption to another, his universitas iuris passed, under the law as
previously settled, to the latter ; but the development of the filius-
fsmiilias' proprietary capacity had infringed upon the necessity of this
rule, and Justinian, as he himself remarks, limited the adrogator's
right in accordance with the principle which he had already estab-
lished in the second book. The hability of the adrogator for debts
contracted by the adopted son while sui iuris is treated in the last
paragraph of the Title. The last remaining form of universal succes-
sion, which was introduced by a constitution of Marcus Aurelius, was
a provision * favore libertatis,* to secure the freedom of slaves who
had been manumitted in a will under which no heres accepted, and
enabled any one who would give the creditors full security for the
satisfaction of their claims to have the estate adjudged to him, thus
putting it in his power, as quasi heir, to fulfil the intentions of the
deceased.

Title 12 briefly touches on two universal successions obsolete
under Justinian's legislation ; the one the peculiar form of bankruptcy
execution known as bonorum emptio — a subject which is more fully
discussed in a note on the text ; the other introduced by the SC
Claudianum, of which we have already read, and which, with its
consequences, was repealed by Justinian in person.

From this subject we pass at Title 13 to the consideration of the
important class of res incorporates called obligations. An obligation

346 INTRODUCTION TO BOOK III.

is a legal relation between two ascertained persons, in virtue of which
the one is entitled to claim an act or forbearance from the other.
The one, or creditor, has a right in personam, the other, or debtor,
owes to him a relative duty ; both right and duty are conceived as
obligationes, or as correlative parts of a single obligatio ; but it is the
right, or creditor side, alone which is a res incorporalis, and owing to
which this department of law falls under the head of ' res ' at all.

This is not so clear and above doubt as never to have been
questioned. The position of obligations between the law of Inherit-
ance and the law of Actions has led Hugo and others to regard them
as a portion of the latter rather than of the ius quod ad res pertinet ;
a theory to some extent countenanced by the fact that in the Digest
(de obligationibus et actionibus, 44, 7) and Code (4. 10) actions and
obligations are treated together, and by the technical meaning of
* actio ' as action in personam, in contrast with * petitio ' or action in
rem. Dig. 44. 7. 28 ; 50. 16. 178. 2. It has even been attempted to
support this view by a statement of Theophilus in his commentary on
Tit. 13. pr. of this book, where he says, * Now that we have spoken
of persons and of things, we ought logically to treat of actions ; but
this arrangement, i.e. the treating of obligations first, is not inexcus-
able, for in discussing obligations one is implicitly discussing actions
also, of which they are the mothers.* But it is clear from his remarks
on Bk. iv. 6. pr., that Theophilus is preferring a fourfold division of
the law, making obligationes a fourth and independent department
intermediate between res and actiones ; and this cannot convince us
that Justinian in his Institutes intended to depart from the arrange-
ment of Gains : for although, had we the Institutes alone, a reason-
able suspicion might be justified by the fact that obligations are
partly treated in the third book, which no one doubts begins with
res, and partly in the fourth, which no one doubts ends with actiones,
yet this is removed by our knowledge that Gains concludes the sub-
ject of obligations in his third book, and devotes the whole of the
fourth to actions. Indeed, the enumeration of obligations among
res incorporales in Bk. ii. 2. 2, is sufficient proof in itself of the
wrongness of Hugo's theory.

The acts or events which give rise to this kind of legal relation
called obligatio are of course different from one another in character,
but they may be grouped with tolerable correctness in two principal
and two subordinate classes. One of the former, which is prominent
in all developed systems of law, is agreement ; the other is delict,
which may here be defined with sufficient accuracy as wrong other

INTRODUCTION TO BOOK III. 347

than breach of contract. But there are obligations which take their
rise in circumstances in which the person held liable has neither en-
tered into an agreement with the other party to the relation, nor
committed a delict against him, in the technical Roman sense of the
word. In these circumstances, however, it is always possible to find
more or less of analogy with one or other of the main sources of
obligations : so that obligations are said in Tit 13. 2 always to arise
from contract or quasi ex contractu, or from delict or quasi ex
delicto.

Not all agreements are contracts; in other words, it does not
follow that because a person has given a promise he can be compelled
to keep it by action at law. Primitive law, it would seem, at first
enforces promises only when they are accompanied by some striking
and solemn formality : formal contracts are actionable before those
which are formless. There were three kinds of form known to the
Roman system in which a promise might be clothed so as to be
enforceable at law, two of which, nexum and expensilatio or litterae,
were obsolete long before Justinian, though there is some notice of
the second, and a lame attempt to represent it as still existing, in
Title 21. The third was stipulatio, the expression of the agreement
in a solemn question and answer, which, however, by a gradual pro-
cess of change had in Justinian's own age been so stripped of its
original characteristics, that it is only by an abuse of language that it
can be described as a formal contract at all. But quite early in the
history of the Roman Law this requirement of form, coupled with
the inability of aliens to employ it, was found so to hamper the free-
dom of commercial intercourse, and to interfere so largely with the
transactions of everyday life, that certain contracts of the ius gentium
were added to the small circle already recognised : two kinds of loan,
deposit, and pledge were held to be actionable merely in virtue of
delivery by one party to the other, whence the obligation was said to
be imposed ' re,' while sale, hire, partnership, and agency could now
be contracted by the mere consent of the parties without the necessity
of any formality, and consequently were called * consensual * contracts.
All of these subjects are treated at considerable length in this part of
the Institutes. The contracts which are called Real — mutuum, or
loan for consumption, commodatum, or loan for use, deposit, and
pledge — ^because the * causa ' through which they become actionable
is 'res ' or delivery, are discussed in Title 14. Stipulation receives a
consideration commensurate with the importance of the part it
played in so large a proportion of the daily dealings between man

348 INTRODUCTION TO BOOK III.

and man. In Title 15 a historical account is given of the changes
which took place in the form of the contract between the earliest and
the latest phases of the Roman Law ; alternatives are soon tolerated
for the old sacramental terms, which none could use but Roman
citizens, and thus peregrini are enabled to avail themselves of this
universally applicable contract form; the question and answer are
allowed to be expressed in other languages than Latin, and the
strict and literal correspondence between them is no longer regarded
as indispensable; finally, that they should be not only oral, but
interrogative in form, is found to be an inconvenient and unneces-
sary condition, and the original solemnities of stipulation have
dwindled into a written memorandum of a promise fictitiously repre-
sented as having been made in answer to a preceding question.
Some minor matters, such as the qualification of such promises by
time and conditions, and the use of penalties under many circum-
stances, are touched upon in the same Title. }oint and several
liability, or as the modern civilians term it, Correality or Solidarity,
is briefly noticed in Title 16, because whenever it arose ex contractu
it usually took the form of stipulation. In Title 17 we have a state-
ment of the effect of promises made by stipulation to a slave: a
subject treated in relation to obligations generally, and to persons in
patria as well as dominica potestas, in Title 28. Title 18 relates to
a classification of stipulations according as they are based upon
genuine consent, or are forced upon a party by a judge or magistrate,
and so reminds the reader of the traditional division of contracts in
English law into * contracts of record * and contracts in the ordinary
sense of the term. This is followed in Title 19 by an illnarranged
exposition of circumstances which affect the validity of contracts in
general, and of stipulations in particular, such as ill^;ality, impossi-
bility, infancy, and weakness of intellect ; and here too we have a
precise statement of the jural maxim that an obligation is a tie
between ascertained parties, incapable of conferring rights or imposing
liabilities on others who are not parties to it themselves, and Justinian's
own repeal of some previously existing rules invalidating stipulations,
but out of harmony with the modem principle that ' consent is the
essence of contract' Title 20 relates to fideiussio, a form of surety-
ship effected by stipulation; other modes in which this important
relation could be established are described in the notes to this Title
and Title 26. Title 21, profe^edly on literal contract, tells us little
more than that literal contract in the true sense (expensilatio) had
long been obsolete, though it also touches a subject upon which more

INTRODUCTION TO BOOK III. 349

is said in Excursus VIII inf. — the defence of no consideration.
The five succeeding Titles contain a very full treatment of the
important class of contracts called consensual. In the first, their
characteristic features, as contrasted with those of stipulation and
Real contract, are tersely noticed. Sale is considered in Title 23 ;
the principles relating to the moment at which the contract is held
to be concluded, the necessity of the price being fixed and in money,
and the * periculum rei,' are clearly set forth, together with one or
two changes made in the law by Justinian himself, and an incidental
notice of a subject touched upon elsewhere in this part of the book,
the doctrine of negligence in contractual relations. Locatio con-
ductio, or hire, is discussed upon much the same lines in Title 24,
and in Title 25 are described the chief forms of partnership, the
relations of partners inter se, and the modes in which this contract is
determined. Title 26 is upon the subject of agency, the species of
which are classified according to the variations in the persons benefited
by the agent's commission ; the modes in which that commission
terminates, and the reciprocal duties of agent and principal, are also
noticed. The question which is of so much practical importance in
modem law as to the capacity of the agent to bind and entitle his
principal is passed over in silence, but is treated at some length in
Excursus IX inf. Quasi-contractual obligations are illustrated in
Title 27 by negotiorum gestio, indebiti solutio, joint ownership and
inheritance, and the relations of guardian and ward, heir and legatee ;
and Title 29 deals with the discharge of obligations, and more par-
ticularly of those which arise ex contractu ; the chief modes described
are performance, accord and satisfaction, release, and substituted
agreement. Assignment, of which some treatment might have been
looked for, is discussed in the Excursus (V) on the general nature of
obligations.

The description here given of the Roman contract system — if we
may use that expression to indicate the aggregate of actionable
agreements — is somewhat misleading. It must not be supposed
that in the time of Justinian, or even of Gaius, no agreement was
ground to support an action which was neither expressed in the form
of stipulation, nor belonged to one or other of the classes of Real and
Consensual contracts. There had been a considerable advance in
two directions since the time when usage had restricted the term
* contract' to denote the four classes of agreement enumerated in
Title 13. Between the establishment of the Empire and the age of
the last great classical jurists the principle of the Real contracts had

350 INTRODUCTION TO BOOK III.

received a great development by the recognition of the rule, that
where one party to any agreement whatsoever had performed what
he had undertaken, he had always a remedy by action to enforce per-
formance by the other. This great group of so-called ^innominate'
contracts is treated in a note on Title 14. 4, New contracts, though
not so called, which in effect were consensual, were called into ex-
istence at different times by the Edict and imperial action ; constitu-
tum (note on iiL 20, 8) is the great example of the former ; emphy-
teusis (pp. 325-327 supr.) and donatio (ii. 7) of the latter. And
lastly, though this matter is disputed (Excursus V), it may be true
that from the theory of * natural ' obligation every agreement whatso-
ever came to receive all the legal attributes possessed by even the
oldest of the Roman contracts, except that of exposing the promisor
to an action for the enforcement of his promise.

LIBER TERTIUS,

DE HEREDITATIBUS QUAE AB INTESTATO DEFERUNTUR.

Intestatus decedit, qui aut omnino testamentum non fecit
aut non iure fecit aut id quod fecerat ruptum irritumve factum
est aut nemo ex eo heres extitit.

Intestatorum autem hereditates ex lege duodecim tabu- 1
larum primum ad suos heredes pertinent. Sui autem heredes 2
existimantur, ut et supra diximus, qui in potestate morientis
fuerunt: veluti filius filia, nepos neptisve ex filio, pronepos
proneptisve ex nepote filio nato, prognatus prognatave. nee
interest, utrum naturales sunt liberi an adoptivi. Quibus
connumerari necesse est etiam eos, qui ex legitimis quidem
matrimoniis non sunt progeniti, curiis tamen civitatum dati
secundum divalium constitutionum, quae super his positae
simt, tenorem suorum iura nanciscuntur : nee non eos, quos
nostrae amplexae sunt constitutiones, per quas iussimus, si
quis mulierem in suo contubernio copulaverit non ab initio
affectione maritali, earn tamen, cum qua poterat habere
coniugium, et ex ea liberos sustulerit, postea vero affectione

Tit. I. For the precise meaning of testamentum non iure factum,
ruptum, irritum, and destitutum see on Bk. ii. 17. pr. supr.

§ 1. The Twelve Tables, whose words ran * si intestatus moritur, cui
suus heres nee escit, ag^atus proximus familiam habeto,' did not conceive
the succession of a suus heres as a succession at all, but as a continuation
of a common proprietorship whose exercise had lain dormant during the
lifetime of the deceased paterfamilias: cf. Gaius ii. 157, Bk. ii. 19. 2 supr.,
and § 3 in! ' quasi continuatur dominium,' Dig. 28. 2. 1 1 ' in suis heredi-
bus evidentius apparet, continuationem dominii eo rem perducere, ut nulla
videatur hereditas fuisse, quasi olim hi domini essent, qui etiam vivo
patre quodammodo heredes existimantur : . . . itaque post mortem patris
non hereditatem percipere videntur, sed magis liberam bonorum adminis-
trationem consequuntur.'

§ 2. For the modes of legitimating illegitimate children see on Bk. i. 10.

35a INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

procedente etiam nuptialia instrumenta cum ea fecerit filios-
que vel filias habuerit : non solum eos liberos, qui post dotem
editi sunt, iustos et in potestate esse patribus, sed etiam
anteriores, qui et his qui postea nati sunt occasionem legitimi
nominis praestiterunt : quod optinere censuimus, etiamsi non
progeniti fuerint post dotale instrumentum confectum liberi
vel etiam nati ab hac luce subtracti fuerint. Ita demum
tamen nepos neptisve et pronepos proneptisve suorum here-
dum numero sunt, si praecedens persona desierit in potestate
parentis esse, sive jnorte id accident sive alia ratione, veluti
emancipatione : nam si per id tempus, quo quis moreretur,
filius in potestate eius sit, nepos ex eo suus heres esse non
potest, idque et in ceteris deinceps liberorum personis dictum
intellegimus. postumi quoque, qui, si vivo parente nati essent,

3 in potestate futuri forent, sui heredes sunt. Sui autem etiam
ignorantes fiunt heredes et, licet furiosi sint, heredes possunt
existere : quia quibus ex causis ignorantibus adquiritur nobis,
ex his causis et furiosis adquiri potest, et statim morte
parentis quasi continuatur dominium : et ideo nee tutoris
auctoritate opus est in pupillis, cum etiam ignorantibus
adquiritur suis heredibus hereditas: nee curatoris consensu

4 adquiritur furioso, sed ipso iure. Interdum autem, licet in
potestate mortis tempore suus heres non fuit, tamen suus
heres parenti efficitur, veluti si ab hostibus quis reversus fuerit

5 post mortem patris sui : ius enim postliminii hoc facit. Per
contrarium evenit ut, licet quis in familia defuncti sit mortis
tempore, tamen suus heres non fiat, veluti si post mortem
suam pater iudicatus fuerit reus perduellionis ac per hoc
memoria eius damnata fuerit: suum enim heredem habere
non potest, cum fiscus ei succedit. sed potest dici ipso iure

13. pr. : the note on which section will also explain the words * qui et his,
qui postea nati sunt, occasionem legitimi nominis praestiterunt'

§ 8. Sui heredesy however, could not be prejudiced against their will by
a damnosa hereditas, as they enjoyed the praetorian ' beneficium absti-
nendi * whether called to succeed under a will or ab intestato : see Bk. ii.
19. 2 and notes supr.

§ 4. For the ius postliminii see on Bk. i. X2. 5 supr.

§ 6. Of the term perduellio Festus says * hostis apud antiquos pere-
grinus dicebatur, et qui nunc hostis perduellio : ' the offence is defined in

Tit. I.] DE HEREDITATIBUS, ETC. ^^^

esse suum heredem, sed desinere. Cum fiHus filiave et ex 6
altero filio nepos neptisve extant, pariter ad hereditatem
vocantur nee qui gradu proximior est ulteriorem excludit:
aequum enim esse videtur nepotes neptesque in patris sui
locum succedere. pari ratione et si nepos neptisque sit ex
filio et ex nepote pronepos proneptisve, simul vocantun et
quia placuit nepotes neptesque, item pronepotes proneptesque
in parentis sui locum succedere, conveniens esse visum est non
in capita, sed in stirpes hereditatem dividi, ut filius partem
dimidiam hereditatis habeat et ex altero. filio duo pluresve
nepotes alteram dimidiam. item si ex duobus filiis nepotes
extant et ex altero unus forte aut duo, ex altero tres aut
quattuor, ad unum aut duos dimidia pars pertinet, ad tres vel
ad quattuor altera dimidia. Cum autem quaeritur, an quis7
suus heres existere potest : eo tempore quaerendum est, quo
certum est aliquem sine testamento decessisse : quod accidit
et destituto testamento. hac ratione si filius exheredatus
fuerit et extraneus heres institutus est, filio mortuo postea
certum fuerit heredem institutum ex testamento non fieri
heredem, aut quia noluit esse heres aut quia non potuit:
nepos avo suus heres existet, quia quo tempore certum est
intestatum decessisse patrem familias, solus inrenitur nepos.
et hoc certum est. £t licet post mortem avi natus sit, tamen 8
avo vivo conceptus, mortuo patre eius posteaque deserto avi
testamento suus heres efficitur. plane si et conceptus et natus

Dig. 48. 4. 1 1 ' perduellionis reus hostili animo adversus lempublicam vel
principem animatus.' Theophilus remarks that it was the only crime for
which a man could be proceeded against after his decease : cf. note oq
Bk. iv. 18. 3 inf.

% 6. For a discussion of the two systems of division, per capita and per
stirpes, see Maine, Early History of Institutions, p. 195.

§ 7. What is meant is that the persons who would be sui heredes at the
moment of the decease may not exactly correspond with those who would
occupy that position at the moment when it first becomes certain that the
man has died intestate, and that, where there is a difference, it is the
latter who take, not the former. E. g. A dies, having instituted B, an ex-
traneus, and leaving two sui, C and D : if, before B refuses the inherit-
ance, C gives himself in adrogation, D will succeed to the whole on
B*s refusal, for at the time when the sui are to be ascertained C has
ceased to be a suus by having undergone capitis deminutio.

A a

354 INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

fuerit post mortem avi, mortuo patre suo desertoque postea
avi testamento suus heres avo non existit, quia nuUo iure
cognationis patrem sui patris tetigit. sic nee ille est inter
liberos avo, quern filius emancipatus adoptaverat. hi autem
cum non sunt quantum ad hereditatem liberie neque bonorum
possessionem petere possunt quasi proximi cognati. haec de
suis heredibus
9 Emancipati autem liberi iure dviii nihil iuris habent : neque
enim sui heredes sunt, quia in potestate esse desierunt pa-
rentis, neque alio uUo iure per legem duodecim tabularum
vocantur. sed praetor naturali aequitate motus dat eis
bonorum possessionem unde liberi, perinde ac si in potestate
parentis mortis tempore fuissent, sive soli sint sive cum suis
heredibus concurrant. itaque duobus liberis extantibus,
emancipato et qui mortis tempore in potestate fuerit, sane
quidem is qui in potestate fuerit solus iure civili heres est,
id est solus suus heres est: sed cum emancipatus beneficio
praetoris in partem admittitur, evenit, ut suus heres pro parte

§ 9. The old civil law of intestate succession regarded agnatic relation-
ship exclusively : those only who were in the agnatic family of a deceased
person could succeed him. Thus those whom natural reason and more
refined law deem nearer relations were often excluded by persons to whom
later they would have been preferred : sons or daughters might be post-
poned to a distant cousin, because by being emancipated or given in adop-
tion they had been capite deminuti, and so ceased to be agnatic kindred
of their own father. These anomalies, as they seem to us, were but gradu-
ally corrected. Arranging the persons who possessed rights of intestate
succession to a deceased in classes according to priority, so that the first
excludes the second, the second the third, and so on, the first class under
the old law, as we have seen, consisted of the sui. It was enlarged by the
action of the praetor, whose mode of intervention has already been alluded
to on Bk. ii. lo. 2 supr. He could not affect the hereditas, which was
altogether beyond his control : but he could promise the bonorum posses-
sio to whomsoever he pleased : and by promising it, in the first instance,
to liberi of the deceased, he pracdcally added persons to the class of sui who
by the civil law had no claim whatever. * Liberi ' are those descendants
of a deceased man who either are, or would be, sui (had they been able to
be in potestas) if they had not been emancipated or given in adoptio
plena. Gains Hi. 26 : though while in the adoptive family they could not
claim to succeed their natural father, § 10 inf. Thus children are not
* liberi ' in relation to their mother, their maternal grandfather, and so on.
The principle was analogous to that of the civil law : no descendant

Tit. I.] DE HEREDITATIBUS, ETC. 355

heres fiat At hi, qui emancipati a parente in adoptionem 10
se dederunt, non admittuntur ad bona naturalis patris quasi
liberi, si modo cum is moreretur in adoptiva familia sint. nam
vivo eo emancipati ab adoptivo patre perinde admittuntur ad
bona naturalis patris, ac si emancipati ab ipso essent nee
umquam in adoptiva familia fuissent: et convenienter quod
ad adoptivum patrem pertinet extraneorum loco esse inci-
piunt. post mortem vero naturalis patris emancipati ab
adoptivo et quantum ad hunc aeque extraneorum loco fiunt
et quantum ad naturalis parentis bona pertinet nihilo magis
liberorum gradum nanciscuntur : quod ideo sic placuit, quia
iniquum erat esse in potestate patris adoptivi, ad quos bona
naturalis patris pertinerent, utrum ad liberos eius an ad
adgnatos. Minus ei^o iuris habent adoptivi quam naturales. 11
namque naturales emancipati beneficio praetoris gradum
liberorum retinet, licet iure civili perdunt : adoptivi vero
emancipati et iure civili perdunt gradum liberorum et a
praetore non adiuvantur. et recte : naturalia enim iura civilis
ratio peremere non potest nee, quia desinunt sui heredes
esse, desinere possunt filii filiaeve aut nepotes neptesve tss^ :
adoptivi vero emancipati extraneorum loco incipiunt esse,

could claim bonorum possessio in this class, if another stood between
him and the deceased, exactly as no one is a suus heres who is not in
the immediate power of the paterfamilias. It admitted of one excep-
tion. If a son were emancipated, while his children were retained in
the grandfather's power, the latter were sui, and entitled by the Twelve
Tables ; on the praetorian system the son would naturally exclude them.
To admit both the son and the grandchildren to independent shares would
have wronged other liberi : accordingly, the son was allowed to take the
portion which he would have received had he not been emancipated, on
condition of transferring a moiety to his children, Dig. 37. 8. i. pr.

Liberi who were not sui could claim bonorum possessio as such only on
condition of making a collatio bonorum (see on Bk. ii. 19. 5 supr.), Coll.
16. 7, though bona castrensia and quasi caslrensia were excepted from
hotchpot because they would have been the son's own had he not been
emancipated at all. Dig. 37. 6. i. 15. So too a daughter must make a
collatio of her dos, whether she took as bonorum possessor or heres, Dig.
37. 6. I. pr.

§ 10. Non . • . quasi liberi : but they are admitted in another order, as
cognati, 13 inf.

§ 11. For the dictum 'naturalia iura civilis ratio peremere non potest'
see on Bk. i. 15. 3 supr.

A a 2

356 INSTITUTIONUM UBRI QUATTUOR. [Lib. in.

quia lus nomenque filii fiHaeve, quod per adoptionem con-
secuti sunt, alia civili ratione, id est emancipatione, perdunt.

12 Eadem haec observantur et in ea bonorum possessione, quam
contra tabulas testamenti parentis liberis praeteritis, id est
neque heredibus institutis neque ut oportet exheredatis,
praetor pollicetur. nam eos quidem, qui in potestate parentis
mortis tempore fuerunt, et emancipatos vocat praetor ad earn
bonorum possessionem : eos vero, qui in adoptiva familia
fuerunt per hoc tempus, quo naturalis parens moreretur, re-
pellit. item adoptivos liberos emancipatos ab adoptivo patre
sicut ab intestato, ita longe minus contra tabulas testamenti
ad bona eius admittit, quia desinunt in liberorum numero

13 esse. Admonendi tamen sumus eos, qui in adoptiva familia
sunt quive post mortem naturalis parentis ab adoptivo patre
emancipati fuerint, intestato parente natural! mortuo licet ea
parte edicti, qua liberi ad bonorum possessionem vocantur,
non admittantur, alia tamen parte vocari, id est qua cognati
defuncti vocantur. ex qua parte ita admittuntur, si neque
sui heredes liberi neque emancipati obstent neque adgnatus
quidem ullus interveniat : ante enim praetor liberos voeat tam
suos heredes quam emancipatos, deinde legitimos heredes,

14 deinde proximos cognatos. Sed ea omnia antiquitati quidem
placuerunt: aliqiiam autem emendationem a nostra con-
stitutione acceperunt, quam super his personis posuimus, quae
a patribus suis naturalibus in adoptionem aliis dantur. in*
venimus etenim nonnullos casus, in quibus filii et naturalium
parentum successionem propter adoptionem amittebant et
adoptione facile per emancipationem soluta ad neutrius patris
successionem vocabantur. hoc solito more corrigentes con-
stitutionem scripsimus^ per quam definivimus, quando parens

§ 12. See on Bk. ii. 13. pr. supr.

§ 18. For the rights of cognates see Tit. 5 and notes, inf. The rule here
stated did not apply even before Justinian if the effect of the adoption was
not to transfer the adoptatus to a new cognatic family, as e. g. where he
was adopted by a paternal ascendant : here he ranked among liberi, Dig.
37. 4. 3. 7 and 8 ; ib. 21. 1. So too if a paterfamilias, after emancipating
a son, gave himself in adrogation, the son did not lose his right of suc-
ceeding in the first class. Dig. loc. cit. 3. 9.

§ 14. The SC. Afinianum had enacted that if a father gave one of

Tit. 1.] DE HEREDITATIBUSy ETC. 357

haturalis filium suum adoptandum alii dederit, Integra omnia
iura ita servari, atque si in patris naturalis potestate per-
mansisset nee penitus adoptio fuerit subsecuta: nisi in hoc
tantummodo casu, ut possit ab intestato ad patris adoptivi
venire successionem. testamento autem ab eo facto neque
iure civili neque praetorio aliquid ex hereditate eius persequi
potest neque contra tabulas bonorum possessione agnita
neque inofficiosi querella instituta, cum nee necessitas patri
adoptive imponitur vel heredem eum instituere vel exhere*
datum facere utpote nullo natural! vinculo copulatum. neque
si ex Afiniano senatus consulto ex tribus maribus fuerit
adoptatus: nam et in huiusmodi casu neque quarta ei ser-
vatur nee uUa actio ad eius persecutionem ei competit.
nostra autem constitutione exceptus est is, quem parens
naturalis adoptandum susceperit : utroque enim iure tam
natural! quam legitimo in banc personam concurrente pri-
stina iura tali adoption! servavimus, quemadmodum si pater
familias sese dederit adrogandum. quae specialiter et sin-
gillatim ex praefatae constitutionis tenore possunt colligi.

Item vetustas ex masculis progenitos plus diligens solos 15
nepotes vel neptes, qui ex virili sexu descendunt, ad suorum
vocabat successionem et iuri adgnatorum eos anteponebat:
nepotes autem, qui ex filiabus nati sunt, et pronepotes ex
neptibus cognatorum loco numerans post adgnatorum lineam
eos vocabat tam in avi vel proavi matern! quam in aviae

three sons in adoption, the adoptive father must leave him a fourth of his
property at least, Theoph. For Justinian's changes in the law of adoption
(Cod. 8. 48. 10) see on Bk. i. 11. 2 supr. Their result, so far as relates to
intestate succession, was as follows :

(i) If the adoptio was minus plena, the adoptatus retained all his
rights against the estate of his natural father, and acquired besides a
claim as suus to that of the adoptive father, if he died intestate, though
none to that of the latter's agnates. To the property of the adoptatus
the adoptans had no rights of succession whatever. (2) If the adoptio
was plena, the rights of the adoptatus against the property of both his
patres and that of his mother remained unaltered. As to his relation to
his natural father's inheritance there is some difference of opinion, though
the expression in the text (pristina iura tali adoptioni servavimus) coupled
with the whole tenor of Cod. 8. 48. 10^ and Bk. i. 11. 2 supr. maybe taken
as conclusive.

$ 15. The enactments referred to are those of Valentinian, Theodosius,

358 INSTITUTIONUM UBRI QUATTUOR. [Lib. III.

vel proaviae sive paternae sive maternae successionem. divi
autem principes non passi sunt talem contra naturam iniuriam
sine competent! emendatione relinquere : sed cum nepotis et
pronepotis nomen commune est utrisque, qui tam ex masculis
quam ex feminis descendunt, ideo eundem gradum et ordi-
nem successionis eis donavenint: sed ut aliquid amplius sit
eis, qui non solum naturae, sed etiam veteris iuris suifragio
muniuntur, portionem nepotum et neptium vel deinceps, de
quibus supra diximus, paulo minuendam esse existimaverunt,
ut minus tertiam partem acciperent, quam mater eorum vel
avia fuerat acceptura, vel pater eorum vel avus patemus sive
matemus, quando femina mortua sit cuius de hereditate
agitur, hisque, licet soli sint, adeuntibus adgnatos minime
vocabant. et quemadmodum lex duodecim tabularum filio
mortuo nepotes vel neptes vel pronepotes et proneptes in
locum patris sui ad successionem avi vocat : ita et principalis

and Arcadius in Cod. 6. 55. 9 and Cod. Theod. 5. 1. 4 (a.d. 389) : they
provided that grandchildren and still remoter descendants should rank as
liberi of their maternal grandparents or paternal grandmother, etc., in lieu
of their mother, father, etc., their portion, however, being diminished by
one third in favour of liberi admitted by the earlier law, or if there were
none, by one fourth in favour of the agnates. This last deduction
was abolished by Justinian in Cod. 6. 55. 12, and that of the third by
Nov. 18. 4.

It may be as well to state briefly the rules of intestate succession where
the deceased was a filiusfamilias with peculium or an emancipatus. In
respect of peculium adventitium, Theodosius and Valentinian enacted
that (i) bona matema should go to the pater, (2) lucra nuptialia to the
children of the deceased filiusfamilias, the pater having the usufruct for
life : in default of children to the pater, and failing him to brothers and
sisters. Leo and Anthemius postponed the pater to brothers and sisters,
even of the half blood. Justinian extended these rules relating to lucra
nuptialia to bona matema and matemi generis in their integrity. Cod. 6.
59. II, and later still to all peculium adventitium from whatever source
derived.

For the earlier law relating to peculium castrense see on Bk. ii. 9. pr.
.supr. In Justinian's time brothers and sisters as well as children of the
deceased were preferred to the pater (Bk. ii. 12. pr. supr. ' si vero intestati
decesserint, nullis liberis vel fratribus superstitibus, ad parentes eorum
iure communi pertinebit : ' cf. Cod. 6. 61. 3 and 4), who took the peculium
only if there were none to precede him. The same rules governed the
succession to peculium quasi castrense.

If, finally, an emancipatus died intestate, the parens manumissor under

Tit. I.] DE HEREDITATIBUS, ETC. 359

dispositio in locum matris suae vel aviae eos cum iam de-
signata partis tertiae deminutione vocat Sed nos, cum adhuc 16
dubitatio manebat inter adgnatos et memoratos nepotes,
partem quartam defuncti substantiae adgnatis sibi vlndi-
cantibus ex cuiusdam constitutionis auctoritate, memoratam
quidem constitutionem a nostro codice segregavimus neque
inseri eam ex Theodosiano codice in eo concessimus. nostra
autem constitutione promulgata toti iuri eius derogatum est :
et sanximus talibus nepotibus ex filia vel pronepotibus ex
nepte et deinceps superstitibus adgnatos nuUam partem
mortui successionis sibi vindicare, ne hi, qui ex transversa
linea veniunt, potiores his habeantur, qui recto iure de-
scendunt. quam constitutionem nostram optinere secundum
sui vigorem et tempora et nunc sancimus: ita tamen ut,
quemadmodum inter filios et nepotes ex filio antiquitas statuit
non in capita sed in stirpes dividi hereditatem, similiter nos

the old law had stood next after the sui, as being patron (Tit. 7 inf.).
Gratian and later emperors preferred the children of an emancipated
daughter (who of course neither were nor ranked as sui) to the parens
manumissor, Cod. Theod. 5. i. 3 : Anastasius allowed family rights to be
reserved in emancipation by imperial rescript, Cod. 6. 58. 1 1 : see on Bk. i.
12. 6 supr. Through Justinian's abolition of the old form of emancipation
the pater's rights of succession, qua patron, and the connected bonorum
possessio unde decem personae (Tit. 9. 4 inf.) disappeared, and in his
system the order of succession to an emancipatus is, first, liberi, second,
the pater, Bk. i. 12. 6 supr. ; Tit. 9. 4 inf. If, however, the deceased left
surviving him, besides the pater, a mother and brothers or sisters, the
proprietas belonged to the brothers or sisters, the usufruct in thirds to
them, the father and the mother respectively : if he left no mother, but
brothers or sisters as well as the pater, the latter had the usufruct, the
former the proprietas, of the whole.

Under Justinian consequently (before the changes effected by Nov. 118,
for which see on Tit. 9. 9 inf., and omitting the cases of filiusfamilias and
emancipatus just considered), the following persons, though owing their
respective titles historically to different legislative organs, ranked in the
first class as successors on an intestacy, viz. sui (Twelve Tables), liberi
(Edict), and grandchildren by a deceased daughter (Cod. Theod. 5. 1.4).
If the deceased were a woman, as she could have no sui or liberi in the
technical sense, there was, strictly speaking, no first class to succeed her :
the first right belonged to her children by the SC. Orfitianum, Tit 4 inf.,
and to grandchildren by issue deceased, all of whom the Romans them-
selves rank in the second class as legitimi : see the next Title.

§ 16. For the 'pars quarta ' see note on § 15, ad init.

360 INSTITUTIONUM LIBRI QUATTUOR. [Lib. Ill,

inter filios et nepotes ex filia distributionem fieri iubemus, vel
inter omnes nepotes et neptes et alias deinceps personas, ut
utraque progenies matris suae vel patris, aviae vel avi por-
tionem sine ulla deminutione consequantur, ut, si forte unus
vel duo ex una parte, ex altera tres aut quattuor extent, unus
aut duo dimidiam, alteri tres aut quattuor alteram dimidiam
hereditatis habeant.

11.

DE LEGITIMA ADGNATORUM SUCCESSIONE.

Si nemo suus heres vel eorum, quos inter suos heredes
praetor vel constitutiones vocant, extat et successionem quo-
quo modo amplectatur : tunc ex lege duodecim tabularum
1 ad adgnatum proximum hereditas pertinet Sunt autem
adgnati, ut primo quoque libro tradidimus, cognati per virilis
sexus personas cognatione iuncti, quasi a patre cognati.
itaque eodem patre nati fratres adgnati sibi sunt, qui et con-
sanguinei vocantur, nee requiritur, an etiam eandem matrem
habuerint. item patruus fratris filio et invicem is illi adgnatus
est. eodem numero sunt fratres patrueles, id est qui ex
duobus fratribus procreati sunt, qui etiam consobrini vo-
cantur. qua ratione etiam ad plures gradus adgnationis
pervenire poterimus. hi quoque, qui post mortem patris
nascuntur, nanciscuntur consanguinitatis iura. non tamen
omnibus simul adgnatis dat lex hereditatem, sed his, qui

Tit. H. § 1. For the precise meaning of 'agnate' see on Tit. i. 15. i
supr. The rule of the Twelve Tables, which, in default of sui, gave the
succession to the nearest agnate or agnates in the same degree, was so
strictly construed, that if he or they were unable or refused to take
the inheritance, more remote agnates were not admitted as such, but
it was delata to the third class, see §§ 5 and 7 infr., cf. Gaius iii. 12
* nee in eo iure successio est : ideoque si adgnatus proximus hereditatem
omiserit, vel antequam adierit decesserit, sequentibus nihil iuris ex lege
competit.' Perhaps the hardship of this was to some extent mitigated
by the anomalous right which the nearest agnate enjoyed of transferring
his right of aditio by in iure cessio, Gaius ii. 35. p. 268«upr. The degrees
of agnation were calculated in the same way as those of cognation, each
generation as one degree of removal, Tit. 6. 8 inf. For the signifi-
cance of the expression *cum certum esse coeperit aliquem intesta-
tum decessisse ' see on Tit. i. 7 supr. and Mr. Poste's note on
Gaius iii. 13.

Tit. a.] DE LEGITIMA ADGNATORUM SUCCESSIONE. 361

tunc proximo gradu sunt, dum certum esse coeperit aliquem
intestatum decessisse. Per adoptionem quoque adgnationis2
ius consistit, veluti inter filios naturales et eos quos pater
eorum adoptavit (nee dubium est, quin propria consanguine!
appellentur) : item si quis ex ceteris adgnatis tuis, veluti
frater aut patruus aut denique is qui longiore gradu est,
aliquem adoptaverit, adgnatos inter suos esse non dubitatur.
Ceterum inter masculos quidem adgnationis iure hereditas 3
etiam longissimo gradu ultro citroque capitur. 'quod ad
feminas vero ita placebat, ut ipsae consanguinitatis iure
tantum capiant hereditatem, si sorores sint, ulterius non
capiant : masculi vero ad earum hereditates, etiam si longis-
simo gradu sint, admittantur. qua de causa fratris tui aut
patrui tui filiae vel amitae tuae hereditas ad te pertinet, tua
vero ad illas non pertinebat. quod ideo ita constitutum erat,
quia commodius videbatur ita iura constitui, ut plerumque
hereditates ad masculos confluerent. sed quia sane iniquum
erat in universum eas quasi extraneas repelli, praetor eas ad
bohorum possessionem admittit ea parte, qua proximitatis
nomine bonorum possessionem pollicetur: ex qua parte ita
scilicet admittuntur, si neque adgnatus uUus nee proximior
cognatus interveniat. Et haec quidem lex duodecim tabu-
larum nullp modo introduxit, sed simplicitatem legibus
amicam amplexa simili modo omnes adgnatos sive masculos
sive feminas cuiuscumque gradus ad similitudinem suorum
invicem ad successionem vocabat: media autem iurispru-
dentia, quae erat lege quidem duodecim tabularum iunior,
imperiali autem dispositione anterior, suptilitate quadam
excogitata praefatam differentiam inducebat et penitus eas
a successione adgnatorum repellebat, omni alia successione
incognita, donee praetores, paulatim asperitatem iuris civilis
corrigentes sive quod deest adimplentes, humano proposito
alium ordinem suis edictis addiderunt et cognationis linea
proximitatis nomine introducta per bonorum possessionem

§ 3. The rule that female agnates were not entitled to succeed as such
if more remotely related to the deceased than as sisters was due to what
Justinian calls the media iurispnidentia, being based on the principle
which either before or later was embodied in the lex Voconia : * feminae
ad hereditates legitimas ultra consanguineas successiones non admit*

362 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IH.

eas adiuvabant et polHcebantur his bonorum possessionem,
quae unde cognati appellatur. Nos vero legem duodecim
tabularum sequentes et eius vestigia in hac parte conservantes
laudamus quidem praetores suae humanitatis, non tamen
eos in plenum causae mederi invenimus : quare etenim uno
eodemque gradu naturali concurrente et adgnationis titulis
tarn in masculis quam in feminis aequa lance constitutis
masculis quidem dabatur ad successionem venire omnium
adgnatofum, ex adgnatis autem mulieribus nullis penitus nisi
soli sorori ad adg^atorum successionem patebat aditus? ideo
in plenum omnia reducentes et ad ius duodecim tabularum
eandem dispositionem exaequantes nostra constitutione sanxi-
mus omnes legitimas personas, id est per virilem sexum
descendentes, sive masculini sive feminini generis sunt, simili
modo ad iura successionis legitimae ab intestato vocari
secundum gradus sui praerogativam nee ideo excludendas,
4 quia consanguinitatis iura sicuti germanae non habent. Hoc
etiam addendum nostrae constitution! existimavimus, ut
transferatur unus tantummodo gradus a iure cognationis in
legitimam successionem, ut non solum fratris filius et filia
secundum quod iam definivimus ad successionem patrui sui
vocentur, sed etiam germanae consanguineae vel sororis
uterinae filius et filia soli et non deinceps person^e una cum
his ad iura avunculi sui perveniant et mortuo eo, qui patruus
quidem est fratris sui filiis, avunculus autem sororis suae
suboli, simili modo ab utroque latere succedant, tamquam si
omnes ex masculis descendentes legitimo iure veniant, scilicet
ubi frater et soror superstites non sunt (his etenim personis

tuntur, idque iure civili Voconiana ratione videtur efTectum:' cetenim
lex duodecim tabularum nulla discretione sexus adgnatos admittit ' Paul,
sent. rec. 4. 9. 22. Remoter female agnates than sisters had a praetorian
title only ; they could obtain bonorum possessio in the third rank, as
cognates (proximitatis nomine), unless excluded by nearer relations of the
same class. Justinian's enactment restoring to them their original rights
is in Cod. 6. 58. 14.

§ 4. Into Uie second order of succession, which goes generally by the
name of legitimi, and which (omitting the patron) consisted by tlie old law
of the nearest agnates only, were admitted by successive changes, though
in different degrees of priority :

(i) The deceased's mother if she had the ius liberorum, Tit. 3 xnL

Tit. a.] DE LEGITIMA ADGNATORUM SUCCESSIONE. 363

praecedentibus et successionem admittentibus ceteri gradus
remanent penitus semoti) : videlicet hereditate non ad stirpes,
sed in capita dividenda. Si plures sint gradus adgnatorum, 5
aperte lex duodecim tabularum proximum vocat: itaque si
verbi gratia sit frater defunct! et alterius fratris filius aut
patruus, frater potior habetur. et quamvis singular! numero
usa lex proximum vocet, tamen dubium non est, quin et,
si plures sint eiusdem gradus, omnes admittantur: nam et
proprie proximus ex pluribus gradibus intellegitur et tamen
dubium non est, quin, licet unus sit gradus adgnatorum,
pertineat ad eos hereditas. Proximus autem, si quidem nullo 6

(2) The children of a deceased woman, Tit. 4 inf., though these practi-
cally belonged to the first class, as no one was preferred to them ; see
on Tit. I. 15 supr. ad fin.

(3) Brothers and sisters of the deceased who had been capite minuti,
though by the enactment of Anastasius (Cod. 5. 30.4), by which this right
was given them they were allowed to take only half as much as those
who were adgnati ; this restriction was removed by Justinian, Cod. 6. 58.
15. I. If emancipated (i.e. capite minuti) brothers and sisters were dead,
their children were admitted by Justinian in their place along with the
issue of those who had died without having been capite minuti, Cod.
6. 58. 15. 3.

(4) Uterine brothers and sisters of the deceased (Cod. 6. 56. 7, Jus-
tinian), but by Nov. 84 the whole was preferred to the half blood.

(5) Children of a deceased sister, Cod. 6. 58. 15. i, and this section.
Taking in combination with these changes the enactment of Justinian

which introduced successio ordinum among agnates (§ 7 inf.), the second
class under his system, before Nov. 118, consisted of the following per-
sons, in the following order of priority :

i. The mother (SC. TertuUianum) and brothers and sisters of the
whole blood, whether agnates of the deceased (Twelve Tables) or not
(Cod. 6. 58. 15. I).

ii. Brothers and sisters of the half blood (Twelve Tables and Cod. 6.
56. 7).

iii. Agnates in the next degree after brothers and sisters, whether
male (Twelve Tables) or female (Cod. 6. 58. 14), and the sons and daugh-
ters of deceased brothers and sisters, whether the latter were related
to the deceased by the whole or the half blood, and whether they were
his agnates or not.

iv. Male and female agnates of remoter degrees, according to prox-
imity (§ 7). Where there were several persons entitled equally, as
legitimi, the division was always per capita (this section, ad fin.), i.e.
the principle of representation of parents by children ad infinitum, which
held in succession by the first order^ had here no application.

364 INSTITUTIONUM UBRI QUATTVOR. [Lib. III.

testamehto facto quisque decesserit, per hoc tempus requiritur,
quo mortuus est is cuius de hereditate quaeritur. quod si
facto testamento quisquam decesserit, per hoc tempus requi-
ritur, quo certum esse coeperit nullum ex testamento heredem
extaturum: turn enim proprie quisque intellegitur intestatus
decessisse. quod quidem aliquando longo tempore declaratur :
in quo spatio temporis saepe accidit, ut proximiore mortuo
proximus esse incipiat, qui moriente testatore non erat prox-

7 imus. Placebat autem in, eo genere percipiendarum here-
ditatum successionem non esse, id est ut, quamvis proximus,
qui secundum ea quae diximus vocatur ad hereditatem, aut
spreverit hereditatem aut antequam adeat decesserit, nihilo
magis legitimo iure sequentes admittuntur. quod iterum
praetores imperfecto iure corrigentes non in totum sine admi-
niculo relinquebant, sed ex cognatorum ordine eos vocabant,
utpote adgnationis iure eis recluso. sed nos nihil deesse
perfectissimo iuri cupientes nostra constitutione sanximus,
quam de iure patronatus humanitate suggerente protulimus,
successionem in adgnatorum hereditatibus non esse eis dene-
gandam, cum satis absurdum erat, quod cognatis a praetore
apertum est, hoc adgnatis esse reclusum, maxime cum in onere
quidem tutelarum et primo gradu deficiente sequens succedit
et, quod in onere optinebat, non erat in lucro permissum.

8 Ad legitimam successionem nihilo minus vocatur etiam
parens, qui contracta fiducia filium vel filiam, nepotem vel
neptem ac deinceps emancipat. quod ex nostra constitutione
omnimodo inducitur, ut emancipationes liberorum semper
videantur contracta fiducia fieri, cum apud antiquos non
aliter hoc optinebat, nisi specialiter contracta fiducia parens
manumisisset.

§ 7. For the last lines of this section of. Bk. i. 17 and notes supr.

§ 8. Under the old system of emancipation (p. 147 supr.) if the final
manumission of the child was made by the fictitious vendee, the latter
technically became patron ; hence it was usual for him to agree (con-
tracta fiducia) to hold the iura patronatus in trust for the father. By
Cod. 8. 49. 6 Justinian enacted that every emancipation under his new
form should have the same effects, in respect of guardianship and succes-
sion (subject to other intermediate changes, see on Tit. i. 15 supr.) as if
it had been effected by the father himself under the old method.

Tit. 3.] DE SENATUS CONSULTO TERTULLIANO. 365

III.

BE SENATUS CONSULTO TERTULLIANO.

Lex duodecim tabularum ita stricto lure utebatur et prae-
ponebat masculorum progeniem et eos, qui per feminini sexus
necessitudinem sibi iunguntur, adeo expellebat, ut ne quidem
inter matrem et filium filiamve ultro citroque hereditatis
capiendae ius daret, nisi quod praetores et proximitate
cognatorum eas personas ad successionem bonorum pos-
sessione unde cognati accommodata vocabant Sed hae 1
iuris angustiae postea emendatae sunt, et primus quidem
divus Claudius matri ad solacium liberorum amissorum le-
gitimam eorum detulit Iiereditatem. Postea autem senatus 2
consulto TertuUiano, quod divi Hadriani temporibus factum
est, plenissime de tristi successione matri, non etiam aviae
deferenda cautum est ; ut mater ingenua trium liberorum ius
habens, libertina quattuor ad bona filiorum filiarumve ad-
mittatur intestatorum mortuorum, licet in potestate parentis
est, ut scilicet, cum alieno iuri subiecta est, iussu eius adeat

Tit. HI. The only claim which a woman had to succeed to her chil-
dren on intestacy by the Twelve Tables was that, if she were in manu
mariti, she became their agnate in the nearest possible degree, and so
came in in default of sui, Gaius iii. 24.

§ 2. The SC. TertuUianum seems not to have been passed under
Hadrian, as is stated in the text, but in a.d. 158 under A. Pius, who
succeeded Hadrian a.d. 138, and was himself succeeded by M. Aurelius
A.D. 161 (Zonaras 12. i), so that it is curious that it is not mentioned
by Gaius, who (ii. 195) speaks of A. Pius as deceased. An extension,
clearly, of the lex Papia Poppaea, which conferred rights on women with
a certain number of children (p. 267 supr., Tit. 7. 2 inf.) ; it gave to in-
genuae who had borne three, and libertinae who had borne four children
(§ 4 inf.), a statutory title to succeed their own issue who died intestate
in preference to the agnates ; by whom they were themselves excluded
appears from the next section.

§ 3. The mother was excluded from the first by the children of a
deceased son, if they ranked as liberi ; if they were merely cognati (Tit.
I. 13 supr.) they and the mother came in together by bonorum possessio
under a rescript of A. Pius, Dig. 38. 17. 2. 9. After the enactment of the
5C. Orfitianum it was ruled by imperial constitutions, as is remarked in
the text, that she must give way also to the children of a deceased
daughter, Cod. 6. 57. i. 4; 6. 55. 11. She was also postponed to the

366 INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

3 cuius iuri subiecta est. Praeferuntur autem matri liberi
defunct!, qui sui sunt quive suorum loco, sive primi gradus
sive ulterioris. sed et filiae suae mortuae filius vel filia
opponitur ex constitutionibus matri defunctae, id est aviac
suae, pater quoque utriusque, non etiam avus vel proavus
matri anteponitur, scilicet cum inter eos solos de hereditate
agitur. frater autem consanguineus tam filii quam filiae
excludebat matrem: soror autem consanguinea pariter cum
matre admittebatur : sed si fuerat frater et soror consanguine!
et mater liberis honorata, frater quidem matrem excludebat,
communis autem erat hereditas ex acquis partibus fratri et

4 sorori. Sed nos constitutione, quam in codice nostro nomine
decorato posuimus, matri subveniendum esse existimavimus,
respicientes ad naturam et puerperium et periculum et saepe
mortem ex hoc casu matribus illatam. ideoque impium esse
credidimus casum fortuitum in eius admitti detrimentum:
si enim ingenua ter vel libertina quater non peperit, immerito
defraudabatur successione suorum liberorum : quid enim pec-
cavit, si non plures, sed paucos pepererit? et dedimus ius
legitimum plenum matribus sive ingenuis sive libertinis, etsi
non ter enixae fuerint vel quater, sed eum tantum vel cam,
qui quaeve morte intercept! sunt, ut et sic vocentur in libe-

5 rorum suorum legitimam successionem. Sed cum antea
constitutiones iura legitima perscrutantes partim matrem
adiuvabant, partim eam praegravabant et non in solidum
eam vocabant, sed in quibusdam casibus tertiam partem ei

deceased child's natural father, whether he were entitled as parens manu-
missor or as bonorum possessor cum re, Ulpian, reg. 26. 8.

The following changes were made in the mother's rights in the inter-
mediate period before Justinian's own settlement of the law. Constantino
enacted that a mother with ius liberorum should not only divide the
succession with the soror consanguinea of the deceased, but should also
lose a third of it in favour of his or her agnatic uncle (patruus) and his
issue to the second degree, irrespective of capitis deminutio. He further
conferred on mothers without the ius liberorum a right of succession to
a third of a deceased child's property, the residue going to the nearest
agnate or agnates; this third was doubled by Theodosius and Valen-
tinian, who also gave a third to the deceased's emancipated brothers,
whom previously the mother had altogether excluded.

§§ 4, 6. Justinian abolished the ius liberorum, along with the deduc-

Tit. 3.] DE SENATUS CONSULTO TERTULLIANO. 367

abstrahentes certis legitlmis dabant personis, in aliis autem
contrarium faciebant: nobis visum est recta et simplici via
matrem omnibus legitimis personis anteponi et sine ulla
deminutione filiorum suorum successionem accipere, excepta
fratris et sororis persona, sive consanguinei sint sive sola
cognationis iura habentes, ut quemadmodum eam toto alio
ordini legitimo praeposuimus, ita omnes fratres et sorores,
sive legitimi sint sive non, ad capiendas hereditates simul
vocemus, ita tamen. ut, si quidem solae sorores cognatae vel
adgnatae et mater defuncti vel defunctae supersint, dimidiam
quidem mater, alteram vero dimidiam partem omnes sorores
habeant, si vero matre superstite et fratre vel fratribus solis
vel etiam cum sororibus sive legitima sive sola cognationis
iura habentibus intestatus quis vel intestata moriatur, in capita
distribuatur eius hereditas. Sed quemadmodum nos matribus 6
prospeximus, ita eas oportet suae suboli consulere : scituris
eis, quod, si tutores liberis non petierint vel in locum remoti
vel excusati intra annum petere neglexerint, ab eorum im-
puberum morientium successione merito repellentur. Licet 7
autem vulgo quaesitus sit filius filiave, potest ad bona eius
mater ex TertuUiano senatus consulto admitti.

IV.

DE SENATUS CONSULTO ORFITIANO.

Per contrarium autem ut liberi ad bona matrum intes-
tatarum admittantur, senatus consulto Orfitiano effectum est,
quod latum est Orfito et Rufo consulibus, divi Marci tem-

tions made in favour of certain other relations which are noticed on § 3,
and preferred the mother to all other legitimi, except that brothers and
sisters shared the inheritance with her ; if there were brothers only, or
brothers and sisters, it was divided in capita between them and the
mother ; if sisters only, they together and the mother took in moieties.
By Nov. 22. 47 Justinian enacted that even where there were sisters only
the division should be in capita.

§ 6. This rule originated in an epistola of Septimius Severus, extant in
Dig. 26. 6. 2. 2.

Tit. rv. Under the law of the Twelve Tables the children of a woman
who died intestate had no claim to succeed her whatever; they were

368 INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

poribus. et data est tarn filio quam filiae legitima hereditas,
etiamsi alieno iuri subiecti sunt: et praeferuntur et con-

1 sanguineis et adgnatis defunctae matris. Sed cum ex hoc
senatus consulto nepotes ad aviae successionem legitimo iure
non vocabantur, postea hoc constitutionibus principalibus
emendatum est, ut ad simiUtudinem fjliorum filiarumque et

2 nepotes et neptes vocentur. Sciendum autem est huiusmodi
successiones, quae a TertulHano et Orfitiano deferuntur, capitis
deminutione non peremi propter illam regulam, qua novae
hereditates legitimae capitis deminutione non pereunt, sed
illae solae quae ex lege duodecim tabularum deferuntur.

3 Novissime sciendum est etiam illos liberos, qui vulgo
quaesiti sunt, ad matris hereditatem ex hoc senatus consulto
admitti.

4 Si ex pluribus legitimis heredibus quidam omiserint he-

neither sui nor her agnates (unless indeed she was in manu mariti, in
which case she could leave no property to inherit). The praetor ad-
mitted them to bonorum possessio in the third (practically second) rank
only, postponing them to their mother's agnates, Gaius iii. 30 ; the SC.
Orfitianum, A.D. 178 ('Antonini et Commodi oratione' Ulpian, reg. 26. 7,
cf. Capitolinus Marc. 11), gave them a statutory title in preference to all
agnates (Ulpian, loc. cit.), and the woman's patronus, if she were liberta,
Dig. 38. 17. I. 9.

§ L The enactments referred to are those already cited and summarised
on Tit I. 15 supr.

§ 2. Justinian is here speaking of capitis deminutio minima only ; the
child's right to succeed was based on natural cognation, and in Bk. i. 16.
6 supr. he says ' quod autem dictum est manere cognationis ius et post
capitis deminutionem, hoc ita est, si minima capitis deminutio inter-
veniat,' and in the Digest. (38. 17. i. 8) Ulpian, speaking of succession
under this SC, says *sive quis ante delatam capite minuitur, ad legiti-
mam hereditatem admittetur, nisi magna capitis deminutio interveniat,
quae vel civitatem adimit, ut puta, si deportetur.' The Mlla regula' is
rather too widely stated, as there were some cases in which bonorum
possessio unde liberi was lost by capitis deminutio, Dig. 38. 6. 9.

§ 3. Cf. Tit. 3. 7 supr. and Cod. 6. 57. 5 (Justinian) * sancimus . . . ut
neque ex testamento, neque ab intestato, neque ex liberalitate inter vivos
^abita, iustis liberis existentibus, aliquid ab illustribus matribus ad
spurios perveniat. Sin autem concubina liberae condicionis constituta
filium vel filiam, ex licita consuetudine ab homine libero habita, pro-
creaverit, eos etiam cum legitimis liberis ad materna venire bon^ . . •
pulla dubitatio est'

§ 4. The law of accrual among joint heirs ab intestato differed accord-

Tit. 5.] DE SUCCESSIONE COGNATORUM. 369

reditatem vel morte vel alia causa impediti fuerint quominus
adeant : reliquis qui adierint adcrescit illorum portio etj
licet ante decesserint qui adierint, ad heredes tamen eorum
pertinet.

V.

DE SUCCESSIONE COGNATORUM.

Post suos heredes eosque, quos inter suos heredes praetor
et constitutiones vocant, et post legitimos (quo numero sunt
adgnati et hi, quos in locum adgnatorum tarn supra dicta
senatus consulta quam nostra erexit constitutio) proximos
cognatos praetor vocat. Qua parte naturalis cognatio spec- 1
tatun nam adgnati capite deminuti quique ex his progeniti
sunt ex lege duodecim tabularum inter legitimos non ha-
bentur, sed a praetore tertio ordine vocantur, exceptis solis
tantummodo fratre et sorore emancipatis, non etiam liberis
eorum, quos lex Anastasiana cum fratribus integri iuris con-
stitutis vocat quidem ad legitimam fratris hereditatem sive
sororis, non acquis tamen partibus, sed cum aliqua deminutione,
quam facile est ex ipsius constitutionis verbis colligere, aliis

ing to the mode of division. If this was per capita, all the joint heirs
who took benefited equally by the refusal or inability of those who did
not ; if it was per stirpes, the accrual enured primarily to the benefit
only of those who belonged to the same stirps with them that had failed,
I^ig* 37« 4- 12. pr., others gained only if there was no one left of that
stirps to take.

Tit. V. Failing sui and the nearest agnate, the Twelve Tables had
given the inheritance to the gentiles of the deceased ; *' si adgnatus nee
escit, gentilis familiam nancitor.' In iii. 17 Gaius alludes to a definition
of gentiles in an earlier part of his work, which, however, has been lost,
and the best account we have of them is that of Cicero, Top. 6, cited by
Mr. Poste in his note on the passage of Gaius referred to. Who they
were precisely is of no practical importance, for Gaius observes that
even in his day the whole of the law relating to the subject was obsolete,
* totum gentilicium ius in desuetudinem abiisse.' There was in fact no
longer any civil law successor to an intestate in default of sui and
agnates ; the gap was filled by the praetor, who through the system of
bonorum possessio substituted for the gentiles a third order of claimants,
ranking after liberi and legitimi, viz. the deceased's cognates or next of
kin, in their several degrees of proximity. Between two or more cog-
nates related in the same degree the division was always in capita.

§ 1. For the lex Anastasiana see (3), note on Tit. 2. 4 supr. By capitis

B b

370 INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

vero adgnatis inferioris g^dus, licet capitis deminutionem
passi non sunt, tamen eos anteponit et procul dubio

2 cognatis. Hos etiam, qui per feminini sexus personas ex
transverso cognatione iunguntur, tertio gradu proximitatis

3 nomine praetor ad successionem vocat. Liberi quoque,
qui in adoptiva familia sunt, ad naturalium parentum here-

4 ditatem hoc eodem g^du vocantur. Vulgo quaesitos nullum
habere adgnatum manifestum est, cum adgnatio a patre,
cognatio sit a matre, hi autem nullum patrem habere in-
tell^untur. eadem ratione nee inter se quidem possunt
videri consanguinei esse, quia consanguinitatis ius species
est adgnationis: tantum igitur cognati sunt sibi, sicut et
matris cc^^atis. itaque omnibus istis ea parte competit
bonorum possessio, qua proximitatis nomine cognati vocantur.

5 Hoc loco et illud necessario admonendi sumus adgnationis
quidem iure admitti aliquem ad hereditatem et si decimo
gradu sit, sive de lege duodecim tabularum quaeramus, sive
de edicto quo praetor l^itimis heredibus daturum se bonorum
possessionem poUicetur. proximitatis vero nomine his solis
praetor promittit bonorum possessionem, qui usque ad sextum
gradum cognationis sunt, et ex septimo a sobrino sobrinaque
nato nataeve.

VI.

DE GRADIBUS COGNATIONIS.

Hoc loco necessarium est exponere, quemadmodum gradus
cognationis numerentur. qua in re inprimis admonendi sumus
cc^nationem aliam supra numerari, aliam infra, aliam ex
transverso, quae etiam a latere dicitur. superior cognatio est
parentium, inferior liberorum, ex transverso fratrum sororumve

deminutio in this section is of course meant only capitis deminatio
minima.

§ 2. The praetor had also admitted persons related directa linea
through females among cognati ; but by the SC*. TertulUanum and
Orfitianum and their developments these had been raised to the rank
of legitimi, whence ' ex transverso ' in the text.

§ 3. This refers of course only to adrogatio and adoptio plena ; if it
were minus plena the adoptatus succeeded to his natural father in the
first order (liberi) ; see on Tit. i. 14 supr.

Tit. 6.1 DE GRADIBUS COGNATIONIS, 371

eorumque, qui ex his progenerantur, et convenienter patrui
amitae avunculi materterae. et superior quidem et inferior
cognatio a primo gradu incipit : at ea, quae ex transverso
numeratur, a secundo. Primo gradu est supra pater mater, 1
infra filius filia. Secundo supra avus avia, infra nepos neptis, 2
ex transverso frater soror. Tertio supra proavus proavia, 3
infra pronepos proneptis, ex transverso fratris sororisque
filius filia et convenienter patruus amita avunculus matertera.
patruus est patris frater, qui Graece wir/Mos vocatur : avunculus
est matris frater, qui apud Graecos proprie fjiijrpcos appellatur :
et promiscue ^€ioy dicitur. amita est patris soror, matertera
vero matris soror : utraque Q^ia vel apud quosdam r^QL^ ap-
pellatur. Quarto gradu supra abavus abavia, infra abnepos4
abneptis, ex transverso fratris sororisque nepos neptis et con-
venienter patruus magnus amita magna (id est avi frater et
soror), item avunculus magnus matertera magna (id est aviae
frater et soror), consobrinus consobrina (id est qui quaeve ex
fratribus aut sororibus progenerantur). sed quidam recte
consobrinos eos proprie putant dici, qui ex duabus sororibus
progenerantur, quasi consororinos : eos vero, qui ex duobus
fratribus progenerantur, proprie fratres patrueJes vocari (si
autem ex duobus fratribus filiae nascantur, sorores patrueles
appellantur) : at eos, qui ex fratre et sorore propagantur,
amitinos proprie dici (amitae tuae filii consobrinum te ap-
pellant, tu illos amitinos). Quinto supra atavus atavia, infra 5
adnepos adneptis, ex transverso fratris sororisque pronepos
proneptis et convenienter propatruus proamita (id est proavi
frater et soror), proavunculus promatertera (id est proaviae
frater et soror), item fratris patruelis sororis patruelis, con-
sobrini et consobrinae, amitini amitinae filius filia, proprior
sobrinus sobrina (hi sunt patrui magni amitae magnae avunculi
magni materterae magnae filius filia). Sexto gradu sunt supra 6
tritavus tritavia, infra trinepos trineptis, ex transverso fratris
sororisque abnepos abneptis et convenienter abpatruus abamita
(id est abavi frater et soror) abavunculus abmatertera (id est
abaviae frater et soror), item sobrini sobrinaeque (id est qui
quaeve ex fratribus vel sororibus patruelibus vel consobrinis
vel amitinis progenerantur). Hactenus ostendisse sufficiet, 7
quemadmodum gradus cognationis numerentur. namque.ex

B b 2

37a INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

his palam est intellegere, quemadmodum ulterius quoque
gradus numerare debemus : quippe semper generata quaeque
persona gradum adiciat, ut longe facilius sit respondere, quoto
quisque gradu sit, quam propria cognationis appellatione quem-

8 quam denotare. Adgnationis quoque gradus eodem modo

9 numerantur. Sed cum magis Veritas oculata fide quam per
aures animis hominum infigitur, ideo necessarium duximus
post narrationem graduum etiam eos praesenti libro inscribi,
quatenus possint et auribus et inspectione adulescentes per-
fectissimam graduum doctrinam adipisci. [Locus in codice
manuscripto vacuus qui genealogico stemmati fuerdt desti-
natus,)

10 Illud certum est ad serviles cognationes illam partem edicti,
qua proximitatis nomine bonorum possessio promittitur, non
pertinere: nam nee ulla antiqua lege talis cognatio com-
putabatur. sed nostra constitutione, quam pro iure patronatus
fecimus (quod ius usque ad nostra tempora satis obscurum
atqiie nube plenum et undique confusum fuerat) et hoc
humanitate suggerente concessimus, ut si quis in servili con-
sortio constitutus liberum vel liberos habuerit sive ex libera
sive servilis condicionis muliere, vel contra serva mulier ex
libero vel servo habuerit liberos cuiuscumque sexus, et ad
libertatem his pervenientibus et hi, qui ex servili ventre nati
sunt, libertatem meruerunt, vel dum mulieres liberae erant,
ipsi in servitutem eos habuerunt et postea ad libertatem
pervenerunt, ut hi omnes ad successionem vel patris vel
matris veniant, patronatus iure in hac parte sopito : hos enim
liberos non solum in suorum parentium successionem, sed
etiam alterum in alterius mutuam successionem vocavimus,
ex ilia lege specialiter eos vocantes, sive soli inveniantur
qui in servitute nati et postea manumissi sunt, sive una cum
aliis, qui post libertatem parentium concepti sunt sive ex
eadem matre vel eodem patre sive ex aliis nuptiis, ad simi-
litudinem eorum qui ex iustis nuptiis procreati sunt.

Tit. VI. § 9. For a genealogical table exhibiting the degrees of cog-
nation see Hunter's Roman Law, ist ed., p. 651.

§ 10. Cf. Dig. 38. 8. I. 2 'nee enim facile ulla servilis videtur esse
cognatio;' so too, in Dig. 38. 10. 10. 5, it is said that, though loosely one
may speak of slaves as being kin to one another, * ad leges serviles cog-

Tit. 7.] DE SUCCESSIONE LIBERTORUM. 373

Repetitis itaque omnibus quae iam tradidimus apparet non 11
semper eos, qui parem gradum cognationis optinent, pariter
vocari eoque amplius nee eum quidem, qui proximior sit
cognatus, semper potiorem esse, cum enim prima causa sit
suorum heredum quosque inter suos heredes iam enumera-
vimus, apparet pronepotem vel adnepotem defuncti potiorem
esse quam fratrem aut patrem matremque defuncti, cum
alioquin pater quidem et mater, ut supra quoque tradidimus,
primum gradum cognationis optineant, frater vero secundum,
pronepos autem tertio gradu sit cognatus et abnepos quarto :
nee interest, in potestate morientis fuerit an non fuerit, quod
vel emancipatus vel ex emancipato aut ex feminino sexu
propagatus est. Amotis quoque suis heredibus quosque inter 12
suos heredes vocari diximus, adgnatus, qui integrum ius
adgnationis habet, etiamsi longissimo gradu sit, plerumque
potior habetur quam proximior cognatus: nam patrui nepos
vel pronepos avunculo vel materterae praefertur. totiens igitur
dicimus aut potiorem haberi eum qui proximiorem gradum
cognationis optinet, aut pariter vocari eos qui cognati sint,
quotiens neque suorum heredum iure quique inter suos
heredes sunt neque adgnationis iure aliquis praeferri debeat
secundum ea quae tradidimus, exceptis fratre et sorore eman-
cipatis, qui ad successionem fratrum vel sororum vocantur,
qui et si capite deminuti sunt, tamen praeferuntur ceteris
ulterioris gradus adgnatis.

VIL

DE SUCCESSIONE LIBERTORUM.

Nunc de libertorum bonis videamus. olim itaque licebat
liberto patronum suum impune testamento praeterire: nam
ita demum lex duodecim tabularum ad hereditatem liberti
vocabat patronum, si intestatus mortuus esset libertus nuUo

nationes non pertinent.' On the other hand, Ulpian says (Dig. 50. 17. 32)
<quod attinet ad ius civile, servi pro nullis habentur : non tamen et iure
naturali ; quia, quod ad ius naturale attinet, omnes homines aequales
sunt.' This no doubt is due to his distinction between the ius gentium
and the ius naturale ; see on Bk. i. I. 4, ib. 2. pr. supr. Justinian's own
enactments referred to in this section are in Cod. 6. 57. 6 ; 6. 4. 4.

374 INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

suo herede relicto itaque intestate quoque mortuo liberto, si
is suum heredem reliquisset, nihil in bonis eius patrono ius
erat. et si quidem ex naturalibus liberis aliquem suum
heredem reliquisset, nulla videbatur querella : si vero adoptivus
filius esset, aperte iniquum erat nihil iuris patrono superesse.

1 Qua de causa postea praetoris edicto haec iuris iniquitas
emendata est. sive enim faciebat testamentum libertus, iube-
batur ita testari, ut patrono partem dimidiam bonorum suorum
relinqueret : et si aut nihil aut minus partis dimidiae reliquerat,
dabatur patrono contra tabulas testamenti partis dimidiae bo-
norum possessio. si vero intestatus moriebatur suo herede
relicto filio adoptivo, dabatur aeque patrono contra hunc
suum heredem partis dimidiae bonorum possessio. prodesse
autem liberto solebant ad excludendum patronum naturales
liberi, non solum quos in potestate mortis tempore habebat,
sed etiam emancipati et in adoptionem dati, si modo ex aliqua
parte heredes scripti erant aut praeteriti contra tabulas bo-
norum possessionem ex edicto petierant : nam exheredati

2 nuUo modo repellebant patronum. Postea lege Papia adaucta
sunt iura patronorum, qui locupletiores libertos habebant.
cautum est enim, ut ex bonis eius, qui sestertiorum centum
millium patrimonium reliquerit et pauciores quam tres liberos
habebat, sive is testamento facto sive intestato mortuus erat,
virilis pars patrono debebatur. itaque cum unum filium
filiamve heredem reliquerit libertus, perinde pars dimidia
patrono debebatur, ac si is sine ullo filio filiave decessisset :
cum duos duasve heredes reliquerat, tertia pars debebatur

3 patrono : si tres reliquerat, repellebatur patronus. Sed nostra
constitutio, quam pro omnium notione Graeca lingua com-
pendioso tractatu habito composuimus, ita huiusmodi causas
definivit, ut si quidem libertus vel liberta minores centenariis
sint, id est minus centum aureis habeant substantiam (sic enim
legis Papiae summam interpretati sumus, ut pro mille ses-
tertiis unus aureus computetur), nullum locum habeat patronus

Tit. VH. § 2. For the effect of the lex Papia Poppaea on the rights
of patronae and fiJiae patroni see Mr. Poste's note on Gaius iii. 54. Pr.-2
of this Title correspond with Gaius iii. 39-42.

§ 3. The constitution referred to, which is in Cod. 6. 4. 4, abolished

Tit. 70 DE SUCCESSIONE LIBERTORUM. 375

in eorum successionem, si tamen testamentum fecerint sin
autem intestati decesserint nullo liberorum relicto, tunc pa-
tronatus ius, quod erat ex l^e duodecim tabularum, integrum
reservavit. cum vero maiores centenariis sint, si heredes vel
bonorum possessores liberos habeant sive unum sive plures
cuiuscumque sexus vel gradus, ad eos successionem parentum
deduximus, omnibus patronis una cum sua progenie semotis.
sin autem sine liberis decesserint, si quidem intestati, ad
omnem hereditatem patronos patronasque vocavimus : si vero
testamentum quidem fecerint, patronos autem vel patronas
praeterierint, cum nuUos liberos haberent vel habentes eos
exheredaverint, vel mater sive avus matemus eos praeterierit,
ita ut non possint argui inofficiosa eorum testamenta : tunc ex
nostra constitutione per bonorum possessionem contra tabulas
non dimidiam, ut ante, sed tertiam partem bonorum liberti
consequantur, vel quod deest eis ex constitutione nostra
repleatur, si quando minus tertia parte bonorum suorum
libertus vel liberta eis reliquerint, ita sine onere, ut.nec
liberis liberti libertaeve ex ea parte legata vel fideicommissa
praestentur, sed ad coheredes hoc onus redundaret: multis
aliis casibus a nobis in praefata constitutione congregatis,
quos necessarios esse ad huiusmodi iuris dispositionem per-
speximus: ut tam patroni patronaeque quam liberi eorum
nee non qui ex transverso latere veniunt usque ad quintum
gradum ad successionem libertorum vocentur, sicut ex ea
constitutione intellegendum est : ut si eiusdem patroni vel
patronae vel duorum duarum pluriumve sint liberi, qui
proximior est, ad liberti seu libertae vocetur successionem
et in capita, non in stirpes dividatur successio, eodem modo
et in his qui ex transverso latere veniunt servando. paene
enim consonantia iura ingenuitatis et libertinitatis in succes-

all previous distinctions of sex between libertus and liberta, patron and
patroness or their children, and regulated the succession to freedmen
and freedwomen as follows :

(i) As regards the power of testation, a libertus or liberta who possessed
less than 100 aurei might freely dispose of it by will, without any obligation
to give the patron or patroness anything either as heir or legatee. If the
property amounted to 100 aurei or upwards they might make what will
they pleased only if they instituted their issue ; if there was no issue, or

376 INSTITUTIONUM UBRI QUATTUOR. [Lib. III.

4sionibus fecimus. Sed haec de his libertinis hodie dicenda
sunt, qui in civitatem Romanam pervenerunt, cum nee sunt
alii liberti simul et dediticiis et Latinis sublatis, cum Latinorum
legitimae successiones nuUae penitus erant, qui licet ut liberi
vitam suam peragebant, attamen ipso ultimo spiritii simul
animam atque libertatem amittebant, et quasi servorum ita
bona eorum iure quodammodo peculii ex lege lunia manu-
missores detinebant. postea vero senatus consulto Largiano
cautum fuerat, ut liberi manumissoris non nominatim ex-
heredati facti extraneis heredibus eorum in bonis Latinorum
praeponerentur. quibus supervenit etiam divi Traiani edictum,
quod eundem hominem, si invito vel ignorante patrono ad
civitatem venire ex beneficio principis festinavit, faciebat
vivum quidem civem Romanum, Latinum autem morientem.
sed nostra constitutione propter huiusmodi condicionum vices
et alias difficultates cum ipsis Latinis etiam legem luniam et
senatus consultum Largianum et edictum divi Traiani in per-
petuum deleri censuimus, ut omnes liberti civitate Romana
fruantur, et mirabili modo quibusdam adiectionibus ipsas
vias, quae in Latinitatem ducebant, ad civitatem Romanam
capiendam transposuimus.

if it were disinherited, and they did not institute the patron or patroness
in a third, clear of legacies and fideicommissa, the latter could demand
possession of it contra tabulas.

(2) A libertus or liberta who died intestate was succeeded, in the first
instance, by his or her natural descendants of either sex, irrespective of
capitis deminutio, and whether they were bom in slavery or not, so long
as they were free at the parents' decease, Tit. 6. 10 supr. ; in default of
these, by the patron or patroness; thirdly, by the latter's children
according to proximity, without regard to capitis deminutio ; and lastly
by the patron or patroness' collaterals to the fifth degree.

§ 4. A patron who succeeded to the estate of his libertus civis took it
quasi hereditario iure, practically as his nearest agnate ; but he took that
of his Latinus lunianus, whom the lex lunia Norbana had disabled from
making a will, p. 256 supra, simply as his master, Mure quodammodo
peculii' Gaius iii. 56; it was regarded as so much potential property of the
manumitter, devisable by him, along with the rest of his fortune, to whom-
soever he pleased. The fact that a civis libertus died free, and was
succeeded on intestacy by a relation or quasi-relation, while a Latinus
died a slave, and was, properly speaking, not succeeded at all, accounts
for the differences which existed in Gaius* time (iii. 57-62) between the
devolutions of their respective properties. Thus, the right of succeeding

Tit. 8.] DE ADSIGNATIONE LIBERTORUM. 377

VIII.

DE ADSIGNATIONE LIBERTORUM.

In summa quod ad bona libertorum admonendi sumus
senatum censuisse, ut quamvis ad omnes patroni liberos, qui
eiusdem gradus sint, aequaliter bona libertorum pertineant,
tamen liceret parenti uni ex liberis adsignare libertum, ut post
mortem eius solus is patronus habeatur, cui adsignatus est, et
ceteri liberi, qui ipsi quoque ad eadem bona nulla adsignatione
interveniente pariter admitterentur, nihil iuris in his bonis
habeant. ' sed ita demum pristinum ius recipiunt, si is cui
adsignatus est decesserit nullis liberis relictis. Nee tantum 1
libertum, sed etiam libertam, et non tantum filio nepotive,
sed etiam filiae neptive adsignare permittitur. Datur autem 2
haec adsignandi facultas ei, qui duos pluresve liberos in
potestate habebit, ut eis, quos in potestate habet, adsignare
et libertum libertamve liceat. unde quaerebatur, si eum cui

to a libertus civis invariably descended to the patrons' children ; that of
taking the property of a Latinus belonged to the patron's heres (Gaius
iii. 58) : a libertus civis was succeeded by joint patrons in equal shares,
though before his manumission they might have owned him in unequal
proportions : *• bona vero Latinorum pro ea parte pertinent pro qua parte
quisque eorum dominus fuit ' (Gaius ib. 59). One patron of a civis ex-
cluded another patron's son, and so on, but the property of a Latinus
went to one patron and another patron's heir in the ratio in which it
would have belonged to the two patrons (ib. 60) ; between joint patrons
of a civis there was accrual, 'bona autem Latini pro parte decedentis
patroni caduca fiunt et ad populum pertinent' (ib. 62). The SC. Lar-
gianum, A.D. 42, enacted that where the patron of a Latinus instituted an
extraneus heres, the right of taking his property up>on his decease should
belong to the patron's children so far as they were not expressly dis-
inherited, Gaius ib. 67-71. For the attainment of ci vitas by a Latinus ex
beneficio principis, to which the edict of Trajan related, cf. Gaius iii. 72,
Ulpian, reg. 3. 2, and Mr. Poste's notes on Gaius i. 28-35.

The fate of the property of a deceased dediticius libertus had depended
upon the mode of his manumission. If it had been such as would have
made him a civis, were it not for the *vitium' owing to which he
necessarily became dediticius (p. 119, supra), the property devolved as
though he actually were a civis libertus : if, except for the disqualification,
it would have made him a Latinus, it devolved as though he actually
were a Latinus, Gaius iii. 74-76.

Tit. VIII. This right of assignment modified the rule, that when a

378 INSTITUTIONUM LIBRI QUATTUOR. [Lib, III.

adsignaverit postea emancipaverit, num evanescat adsignatio ?
sed placuit evanescere, quod et luliano et aliis plerisque visum
3 est. Nee interest, testamento quis adsignet an sine testamento :
sed etiam quibuscumque verbis hoc patronis permittitur facere
ex ipso senatus consulto, quod Claudianis temporibus factum
est Suillo Rufo et Ostorio Scapula consulibus.

IX.

DE BONORUM POSSESSIONIBUS.

lus bonorum possessionis introductum est a praetore
emendandi veteris iuris gratia, nee solum in intestatorum
hereditatibus vetus ius eo modo praetor emendavit, sicut
supra dictum est, sed in eorum quoque, qui testamento facto
decesserint. nam si alienus postumus heres fuerit institutus,
quamvis hereditatem lure civili adire non poterat, cum in-
stitutio non valebat, honorario tamen lure bonorum possessor
efficiebatur, videlicet cum a praetore adiuvabatur: sed et
hie a nostra constitutione hodie recte heres instituitur, quasi
1 et iure civili non incognitus. Aliquando tamen neque
emendandi neque impugnandi veteris iuris, sed magis con-
firmandi gratia poUicetur bonorum possessionem, nam illis

patron died his rights of succeeding to his liberti cives passed to all his
children who were not capite minuti in equal proportions, by enabling
him to give to any one or more of those in his power a preference over
the rest in relation to all or any of his freedmen : ' adsignare libertum
hoc est testificari, cuius ex liberis libertum esse voluit ' Dig. 50. 16. 107.
It became a question among the jurists whether such an assignment
might be made to an emancipated child, and in Dig. 38. 4. 9 Modestinus
says the better opinion was in the affirmative, except where he had only
one in his power : but under Justinian the law seems to have been other-
wise : ifAayKiirdrt^ yhp dda-iyvarev€i¥ ov dwarov Theoph. So limited, the
practice shows clearly that if the patron or his children succeeded the
libertus at all, they did so as his nearest agnates : if they or he were
capite minuti, the agnatic tie wsls broken, and the right of succession
lost : hence the rule that a freedman could not give himself in adrogation,

Dig. I. 7. 15- 3.

Tit. IX. For the institution of postumi alieni see on Bk. ii. ao. 28
supr.

§ 1. For bonorum possessio secundum tabulas see on Bk. ii. 17. 6
supr. : for the succession of sui. Tit. i supr. : of agnates, Tit. 2.

Tit. 9.] DE BONORUM POSSESSION/BUS. 379

quoque, qui recte facto testamento heredes instituti sunt, dat
secundum tabulas bonorum possessionem : item ab intestato
suos heredes et adgnatos ad bonorum possessionem vocat:
sed et remota quoque bonorum possessione ad eos hereditas
pertinet iure civili. Quos autem praetor solus vocat ad 2
hereditatem, heredes quidem ipso iure non fiunt (nam praetor
heredem facere non potest: per legem enim tantum vel
similem iuris constitutionem heredes fiunt, veluti per senatus
consultum et constitutiones principales) : sed cum eis praetor
dat bonorum possessionem, loco heredum constituuntur et
vocantur bonorum possessores. adhuc autem et alios com-
plures gradus praetor fecit in bonorum possessionibus dandis,
dum id agebat, ne quis sine successore moriatur : nam
angustissimis finibus constitutum per legem duodecim tabu-
larum ius percipiendarum hereditatum praetor ex bono et
aequo dilatavit. Sunt autem bonorum possessiones ex tes- 3
tamento quidem hae. prima, quae praeteritis liberis datur
vocaturque contra tabulas. secunda, quam omnibus iure
scriptis heredibus praetor pollicetur ideoque vocatur secundum
tabulas. et cum de testamentis prius locutus est, ad intestatos
transitum fecit, et primo loco suis heredibus et his, qui ex
edicto praetoris suis connumerantur, dat bonorum posses-
sionem quae vocatur unde liberi : secundo legitimis heredibus :
tertio decem personis, quas extraneo manumissori praeferebat
(sunt autem decem personae hae : pater mater, avus avia tam

§ 8. The principal cases of bonorum possessio contra tabulas have
been already pointed out on Bk. ii. 13. 7 supr. Possession of goods was
awarded on intestacy to eight different classes of persons, in the following
order of priority, each being known by a technical name derived from its
place in the edict :

(i) Liberi : see on Tit. i. 9 supr.

(2) Legitimi : see on Tit. 2. 4 supr. In succession to freedmen, this
class consisted originally only of the patron, his children who had not
been capite minuti, and the patroness : how it was modified by the SC».
Tertullianum and Orfitianum has been noticed on Tits. 3 and 4 supr.

(3) Decem personae : this class relates only to succession to an eman-
cipatus ; under the old law, when the final act of manumission was per-
formed by the extraneous vendee (p. 147 supra) the latter was postponed
by the praetor to all the deceased's cognates in the ascending and
descending lines within the second degree.

(4) The cognates according to proximity, Tit. 5 supr.

380 INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

paterni quam matemi, item filius filia, nepos neptis tarn ex
filio quam ex filia, frater soror sive consanguinei sive uterini) :

(5) Turn quam ex familia : the patron or patroness's nearest collateral
agnates.

(6) Patronus, patrona, liberi et parentes eorum: i.e. the patron's or
patroness's own patron or patroness, and his or her cognates in the direct
line.

(7) Vir et uxor : the surviving consort of the deceased, who by the civil
law had no right of succession whatever.

(8) The collateral cognates of the patron within the sixth d^;rce, Tit.
5. 5 supr. In the extremely improbable event of there being no one
belonging to even the lowest of these classes to take bonorum possessio,
the estate escheated to the aerarium (later to the fiscus) : ' si nemo sit,
ad quem bonorum possessio pertinere possit, aut sit quidem, sed ius
suum omiserit, populo bona deferuntur ex lege lulia caducaria' Uipian,
reg. 28. 7.

It will be observed that, besides class 3, which related to what cannot
ever have been a very common case, classes 5, 6, and 8 did not come
into consideration unless the intestate were a ireedman or a freedwoman.
Class 3 became meaningless under Justinian's new system of emancipa-
tion, and the other three he altogether abolished. Thus in his legislation
intestate bonorum possessores were arranged in four classes only, their
order being — liberi, legitimi, cognati, vir et uxor ; but he also retained an
anomalous group (§ 8 inf.), called sometimes for the sake of brevity * turn
quibus ex legibus,' comprising those persons to whom the statute law
had enacted that bonorum possessio (as distinct from the hereditas)
should be given : e.g. the patron in concurrence with the children of a
libertus under the lex Papia Poppaea, Tit. 7. i and 2 supr. : ' quippe cum
non alias huic competit bonorum possessio, quam si lex specialiter deferat
bonorum possessionem' Dig. 38. 14. i. 2.

For a discussion of the probable origin of bonorum possessio, and of
its development into an organized scheme of succession, see Excursus IV,
at the end of this Book. A little more is necessary in order to thoroughly
understand its nature.

In order to obtain possession of property belonging to the deceased,
the bonorum possessor had, as such, a special procedure, the interdict
Quorum bonorum (Dig. 43. 2, Gains iv. 144), which had certain ad-
vantages over the remedy available to the heres, qua heres (vix. here-
ditatis petitio, by which he established his title to the universitas iuris).
Thus, the interdict was never excluded by usucapio lucrativa (p. 233
supr. : cf. Gaius ii. 52-58), and availed also against persons ' qui dolo
desierant possidere : ' hereditatis petitio was not thus privileged until the
time of Hadrian, Dig. 5. 3. 20. 6-21, ib. 25. pr.-i7. It is then no matter
for surprise that heirs, who had an unimpeachable civil title, applied for
bonorum possessio secundum tabulas in order to be able to use the
interdict, § i supr., Gaius iii. 34 ; and similarly, as the heir could claim to
become bonorum possessor, so the praetor treated the bonorum possessor

Tit. 9.] DE BONORUM POSSESSIONIBUS. 381

quarto cognatis proximis: quinto turn quam ex familia:
sexto patrono et patronae liberisque eorum et parentibus:

as heir (§ 2 supr. : cf. note on Bk. ii. 10. 2 supr.) : i.e. he allowed him to
sue and be sued under a fiction by the actions, which lay at the suit of
and against the heres : Ulpian, reg. 28. 12. : cf. Gaius iv. 34 ^ ... is
qui ex edicto bonorum possessionem petiit, ficto se herede agit.* After
the establishment of the Empire, and before Hadrian, he was, like the
heres, enabled to sue for the universitas by a *possessoria hereditatis
petitio ' Dig. 5. 5. For another view of the relation between the interdict
and hereditatis petitio see on Bk. iv. 15. 3 inf.

A noticeable point of difference between bonorum possessio and here-
ditas is that the former was never acquired ipso iure, as the latter was
by necessarii or sui et necessarii heredes. It was obtained originally by
application to the praetor (agnitio or petitio bonorum possessionis),
which could be made by an agent, while no one could accept an inherit-
ance except the person to whom it was delata, note on Bk. ii. 19. 7 supr.
This application was usually granted without precise inquiry into the
applicant's title, which, if investigated at all, was investigated later, and
only because it was disputed by some one who alleged that his own right
was a better one. In this case the latter would be granted a second and
formal bonorum possessio 'litis ordinandae gratia.' The sons of Con-
stantine enacted that bonorum possessio might be obtained from any
judge or magistrate by a mere signification of acceptance, Cod. 6. 9. 8
and 9, though this was still called agnitio or petitio ; and this is the rule
referred to by Justinian in § 12 inf. as holding in his day.

The right to take the possession could be lost by either express re-
pudiation (§ 10 inf.) or lapse of the time (specified in § 9 ; Ulpian, reg. 28.
10) within which it was required by law to be exercised. A person barred
by such lapse was excluded only from one rank or class: if he was
admitted by the edict in a lower rank also, he had another opportunity
(* sibi ipse succedere ' Dig. 38. 9. 1. 10 and 1 1). Occasionally, however, the
praetor would not grant bonorum possessio without an examination into
the circumstances of the particular case. For instance, the edictum
Carbonianum provided, that if the parentage of an impubes, upon which
his rights of succession depended, was disputed, the magistrate should
hold a summary inquiry, and if in this his alleged parentage was not
clearly disproved, bonorum possessio should be granted provisionally to
him upon security being given against waste, until the question at issue
was definitely settled, such settlement often being postponed until the '
child attained puberty. In cases of this sort, if bonorum possessio was
eventually granted after the magisterial examination, it was called
bonorum possessio decretalis in contrast with that which was given
under the general provisions of the edict (edictalis).

Even supposing the bonorum possessor had an indefeasible title as
such, the praetor did not necessarily guarantee him the succession
against a possible heres, who might have remained satisfied with his
civil law title. E.g. a suus is praeteritus in the father's will, by which the

3S2, INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

4 septimo viro et uxori : octavo cognatis manumissoris. Sed
eas quidem praetoria induxit lurisdictio. nobis tamen nihil
incuriosum praetermissum est, sed nostris constitutionibus
omnia corrigentes contra tabulas quidem et secundum tabulas
bonorum possessiones admisimus utpote necessarias constitutas,
nee non ab intestato unde liberi et unde legitimi bonorum

5 possessiones. Quae autem in praetoris edicto quinto loco
posita fuerat, id est unde decern personae, eam pio proposito
et compendioso sermone supervacuam ostendimus : cum enim
praefata bonorum possessio decern personas praeponebat ex-
traneo manumissori, nostra constitutio, quam de emancipatione
liberorum fecimus, omnibus parentibus eisdemque manumis-
soribus contracta fiducia manumissionem facere dedit, ut ipsa
manumissio eorum hoc in se habeat privilegium et supervacua
fiat praedicta bonorum possessio. sublata igitur praefata
quinta bonorum possessione in gradum eius sextam antea
bonorum possessionem reduximus et quintam fecimus, quam

6 praetor proximis cognatis poUicetur. Cumque antea septimo
loco fuerat bonorum possessio tum quam ex familia et octavo
unde liberi patroni patronaeque et parentes eorum, utramque
per constitutionem nostram, quam de iure patronatus fecimus,
penitus vacuavimus : cum enim ad similitudinem successionis
ingenuorum libertinorum successiones posuimus, quas usque
ad quintum tantummodo gradum coartavimus, ut sit aliqua
inter ingenuos et libertos differentia, sufficiunt eis tam contra
tabulas bonorum possessio quam unde legitimi et unde cog-
latter is avoided, so that he becomes heres ab intestato ; the institutus in
the will obtains bonorum possessio secundum tabulas : or upon an
intestacy the cognates obtain bonorum possessio, while there is a suus or
agnate as heres. Under such circumstances as these, if the claim of the
praetorian successor is overridden by that of the heres, the bonorum
possessio is said to be sine re, or ineffectual: 'bonorum possessio aut
cum re datur, aut sine re : cum re, si is qui accepit cum effectu bona re-
tineat : sine re, cum alius iure civili evincere hereditatem possit ' Ulpian,
reg. 28. 13 : cf. Gains iii. 35-38. The rule upon this matter may be thus
stated : where there is a collision between the civil and the praetorian
title, the latter must yield to the former, and be sine re, except in cases
of bonorum possessio iuris civilis impugnandi gratia, viz. where the
possession is given to liberi upon intestacy, and to emancipated children
contra tabulas, and in certain instances of bonorum possessio secundum
tabulas, for which see on Bk. ii. 17, 6 supr.

Tit. 9J DE BONORUM POSSESSION/BUS. 383

nati, ex quibus possint sua iura vindicare, omni scrupulositate
et inextricabili errore duarum istarum bonorum possessionum
resoluta. Aliam vero bonorum possessionem, quae unde vir 7
et uxor appellatur et nono loco inter veteres bonorum pos-
sessiones posita fuerat, et in suo vigore servavimus et altiore
loco, id est sexto, earn posuimus, decima veteri bonorum
possessione quae erat unde cognati manumissoris propter
causas enarratas merito sublata: ut sex tantummodo bo-
norum possessiones ordinariae permaneant suo vigore pol-
lentes. Septima eas secuta, quam optima ratione praetores 8
introduxerunt novissime enim promittitur edictio his etiam
bonorum possessio, quibus ut detur lege vel senatus consulto
vel constitutione comprehensum est, quam neque bonorum
possessionibus quae ab intestato veniunt neque eis quae ex
testamento sunt praetor stabili iure connumeravit, sed quasi
ultimum et extraordinarium auxilium, prout res exigit, ac-
commodavit scilicet his, qui ex legibus senatus consultis
constitutionibus principum ex novo iure vel ex testamento
vel ab intestato veniunt. Cum igitur plures species succes- 9
sionum praetor introduxisset easque per ordinem disposuisset
et in unaquaque specie successionis saepe plures extent
dispari gradu personae : ne actiones creditorum diflferantur,
sed haberent quos convenirent, et ne facile in possessionem
bonorum defuncti mittantur et eo modo sibi consulerent, ideo
petendae bonorum possessioni certum tempus praefinivit.
liberis itaque et parentibus tam naturalibus quam adoptivis
in petenda bonorum possessione anni spatium, ceteris centum
dierum dedit. Et si intra hoc tempus aliquis bonorum pos- 10
sessionem non petierit, eiusdem gradus personis adcrescit :
vel si nemo sit, deinceps ceteris proinde bonorum posses-
sionem ex successorio edicto pollicetur, ac si is qui praecedebat
ex eo numero non esset. si quis itaque delatam sibi bonorum
possessionem repudiaverit, non quousque tempus bonorum
possessioni praefinitum excesserit exspectatur, sed statim
ceteri ex eodem edicto admittuntur. In petenda autem 11
bonorum possessione dies utiles singuli considerantur. Sed 12

§ U. The distinction between tempus utile and continuum has been
already explained on Bk. ii. 19. 5 supr. The idea of the former originated

384 INSTITUTIONUM UBRI QUATTUOR. [Lib. III.

bene anteriores principes et huic causae providerunt, ne quis
pro petenda bonorum possessione curet, sed, quocumque modo

in the necessity of performing some act within a prescribed time, by
the non-performance of which a right might be lost, and which might
be interfered with either (i) by the courts being closed; (2) by the
absence of some person whose presence was essential, Dig. 44. 3. i ;
(3) by some disability of the person by whom the act had to be per-
formed, e.g. absence, illness, or excusable ignorance of his right As a
rule, time was reckoned as continuum; it is usually utile when the
interval for performance is not more than a year and is prescribed by law,
and where the act itself is a judicial one.

Before finally leaving the subject of intestate succession it is necessary
to notice briefly the important revolution which Justinian effected in its
rules by Nov. 118, A.D. 543. By this he repealed all existing law on the
subject : ' prioribus legibus pro hac causa positis cessantibus, de cetero ea
sola servarique nunc constituinius.' The new system was based solely
on cognation, between which and agnation it disowned any distinction,
save so far as was involved in the recognition of adoptive relationship :
it also treated males and females on precisely the same footing. Intes-
tate successors were arranged in four classes, in the following order of
priority :

(i) Descendants, division between these being in stirpes : 'tantam
de hereditate morientis accipientes partem, quanticunque sint, quantam
eorum parens, si viveret, habuisset, quam successionem in stirpes vocavit
antiquitas' Nov. 118. i : thus a descendant related to the deceased
through both parents received a double portion. The descendant did
not, however, in every case inherit the usufruct along with the proprietas ;
e.g. if the deceased was in potestas, note on Tit. i. 15 supr. ; or if the
deceased was a woman, the surviving husband was entitled to the usu-
fruct of a part. Cod. 6. 60. 3.

(2) Ascendants and brothers and sisters of the whole blood succeed
together. A nearer was preferred to a more remote ascendant : if there
were two or more ascendants in the same degree, they divided the suc-
cession per capita if they belonged to the same line, paternal or maternal:
if to different lines, each took half. If there are no ascendants, sons and
daughters of brothers and sisters of the whole blood deceased came in
with those still surviving, of course per stirpes.

(3) Brothers and sisters of the half blood, and descendants in the first
degree of such brothers and sisters deceased.

(4) All other cognates, according to proximity, whether related by the
whole or half blood : * si vero neque fratres neque filios fratrum, sicut
diximus, defunctus reliquerit, omnes a latere cognatos ad hereditatem
vocamus, secundum uniuscuiusque gradus praerogativam, ut viciniores
gradu reliquis praeponantur. Si autem plurimi eiusdem gradus invenian-
tur, secundum personarum numerum inter eos hereditas dividatur, quod
in capita nostrae leges appellant' Nov. 118. 3. i.

Tit. lo.] DE ADQUISITIONE PER ADROGATIONEM. 385

si admittentis earn indicium intra statuta tamen tempora
ostenderit, plenum habeat earum beneficium«

X.

DE ADQUISITIONE PER ADROGATIONEM.

Est et alterius generis per universitatem successio, quae
neque lege duodecim tabularum neque praetoris edicto, sed
eo lure, quod consensu receptum est, introducta est. Ecce 1
enim cum pater familias sese in adrogationem dat, omnes re3
eius corporales et incorporales quaeque ei debitae sunt adro-
gatori ante quidem pleno iure adquirebantur, exceptis his
quae per capitis deminutionem pereunt quales sunt operarum
obligationes et ius adgnationis. usus etenim et usus fructus,
licet his antea connumerabantur, attamen capitis deminutione
minima eos tolli nostra prohibuit constitutio. Nunc autem 2
nos eandem adquisitionem, quae per adrogationem fiebat,

These rules have been summarised in the following memorial lines ;
Descendens omnis succedit in ordine prime :
Ascendens propior, germanus, filius eius :
Tunc latere ex uno frater, quoque filius eius :
Hi cuncti in stirpes succedunt, in capita autem
luncti ascendentes, fratrum proles quoque sola.
Denique proximior reliquorum quisque superstes.
§ 11. Failing even cognates, the praetorian rule of vir et uxor was
followed. Under -certain circumstances indeed a widow had a claim
against the estate of her deceased husband, even when the latter left a
will, or died intestate having other successors : i. e. when she was poor,
and had no dos, she was entitled to a fourth of her husband's property,
or, if there were more than three legitimate children born of the marriage,
to a virilis portio, Nov. 117. 5.

Tit. X. So too in Dig. i. 6. 8 pr. patria potestas is said to be
moribus recepta, and in iii. 82 Gains ascribes the universal succession
resulting from conventio in manum to the ius quod consensu receptum
est.

§ 1. For the extinction of asus and ususfructus by capitis deminutio
minima see p. 222 supr. By operarum obligationes are meant operae
liberti secured by stipulation or iurata promissio, Gains iii. 83: operae
servorum sive animalium were not extinguished in this manner, note on
Bk. ii. 5. 5 supr. : cf. Dig. 4. 5. 10 ; 7. 7- 2 ; 7. 8. 10 pr.

§ 2. Over castrensia and quasi castrensia bona of adrogatus the adro-
gator had no rights whatever : the rest of his property, not being derived
ex re patris [adoptivi], would constitute peculium adventitium, so that the

CC

386 INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

coartavimus ad similitudinem naturalium parentum : nihil
etenim aliud nisi tantummodo usus fructus tarn naturalibus
patribus quam adopt i vis per filios familias adquiritur in his
rebus quae extrinsecus filiis obveniunt, dominio eis integro
servato: mortuo autem filio adrogato in adoptiva familia
etiam dominium eius ad adrogatorem transit, nisi supersint
aliae personae, quae ex nostra constitutione patrem in his
\ quae adquiri non possunt antecedunt. Sed ex diverso pro eo,
quod is debuit qui se in adoptionem dedit, ipso quidem iure
adrogator non tenetur, sed nomine filii convenietur et, si
noluerit eum defendere, permittitur creditoribus per com-
petentes nostros magistratus bona, quae eorum cum usu
fructu futura fuissent, si se alieno iuri non subiecissent, pos-
sidere et legitimo modo ea disponere.

usufruct of it would belong to the adrogator. For the * aliae personae '
see on Tit. i. 15 supr. (succession to filiusfamilias having peculium).

§ 8. Though under the ius civile neither adrogator nor adrogatus could
be sued for debts incurred by the latter before his capitis deminutio, the
debts remained as obligationes naturales, Dig. 4. 5. 2. 2, and the praetor
granted actiones utiles against adrogatus himself (Gains iii. 84) under the
fiction that he was still sui iuris : ' rescissa capitis deminutione, id est
[actio] in qua fingitur capite deminutus non esse ' Gains iv. 38. This was
a genuine in integrum restitutio of the creditors : *integri restitutionem
praetor tribuit ex his causis quae per . . . status permutationem gesta esse
dicuntur' Paul. sent. rec. i. 7. 2. Delictual obligations were never extin-
guished by capitis deminutio minima ('nemo ddictis exuitur, quamvis
capite minutus sit' Dig. 4. 5. 2. 3), neither was the obligation arising
ex deposito if the depositee remained in possession after the capitis de-
minutio, Dig. 16. 3. 21, nor debts owed by an inheritance accepted by
adrogatus before adrogation. Gains iii. 84. Under Justinian, after having
been in integrum restituti against the civil extinction of their claims
(Dig. 4. 5. 2. i), the creditors sued the adrogator as adrogatus' repre-
sentative ; but the restitutio in this particular case was abnormal, being
claimable as a matter of right, 'sine causa cognita' Dig. loc. cit., and
not being subject to the ordinary rules of prescription; *hoc indicium,
perpetuum est' Dig. 4. 5. 2. 5.

Tit. 11.] DE EO CUI LIBERT ATIS, ETC. 387

XI.

DE EO CUI LIBERTATIS CAUSA BONA ADDICUNTUR.

Accessit novus casus successionis ex constitutione divi
Marci. nam si hi, qui libertatem acceperunt a domino in
testament©, ex quo non aditur hereditas, velint bona sibi
addici libertatium conservandarum causa, audiuntur. et ita
rescripto divi Marci ad Popilium Rufum continetur. Verba \
rescripti ita se habent : * Si Virginio Valenti, qui testamento
suo libertatem quibusdam adscripsit, nemine successore ab
intestate existente in ea causa bona ^^'^t^ coeperunt, ut veniri
debeant : is cuius de ea re notio est aditus rationem desiderii
tui habebit, ut libertatium tam earum, quae directo, quam
earum, quae per speciem fideicommissi relictae sunt, tuen-
darum gratia addicantur tibi, si idonee creditoribus caveris
de solido quod cuique debetur solvendo. et hi quidem,
quibus directa libertas data est, perinde liberi erunt, ac si '
hereditas adita esset : hi autem, quos heres rogatus est manu-
mittere, a te libertatem consequantur : ita ut si non alia
condicione velis bona tibi addici, quam ut etiam qui directo
libertatem acceperunt tui liberti fiant, nam huic etiam volun-
tati tuae, si ii de quorum statu agitur consentiant, aucto-
ritatem nostram accommodamus. et ne huius rescriptionis
nostrae emolumentum alia ratione irritum fiat, si fiscus bona
agnoscere voluerit: et hi qui rebus nostris attendunt scient
commodo pecuniario praeferendam libertatis causam et ita
bona cogenda, ut libertas his salva sit, qui eam adipisci
potuerunt, si hereditas ex testamento adita esset.' Hoc 2
rescripto subventum est et libertatibus et defunctis, ne bona
eorum a creditoribus possideantur et veneant. certe si fuerint

Tit. XI. § 1. The estate would be adjudged to the creditors, in order
to be sold in satisfaction of their claims, only after being rejected by the
instituti, all the intestate heirs, and the fiscus. The rescript of M. Au-
relius seems to have contemplated only addictio to one of the slaves
manumitted by the will (Popilius Rufus being ctp r^v roxj^vrtAv f\ev6fpias
iv rfi dia6i]KTf Theophilus) ; Gordian permitted it to be made to any one
who would give the security * de solido quod cuique debetur solvendo,'
Cod. 7. 2. 6.

C C a

388 INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

ex hac causa bona addipta, cessat bonorum venditio : extitit
enim defuncti defensor, et quidem idoneus, qui de solido

3 creditoribus cavet. Inprimis hoc rescriptum totiens locum
habet, quotiens testamento libertates datae sunt, quid ergo
si quis intestatus decedens codicillis libertates dederit neque
adita sit ab intestato hereditas? favor constitutionis debet
locum habere, certe si testatus decedat et codicillis dederit

4 libertatem, competere earn nemini dubium est. Tunc con-
stitution! locum esse verba ostendunt, cum nemo successor
ab intestato existat : ei^o quamdiu incertum sit, utrum
existat an non, cessabit constitutio: si certum esse coeperit

5 neminem extare, tunc erit constitutioni locus. Si is, qui
in integrum restitui potest, abstinuit se ab hereditate, an,
quamvis potest in integrum restitui, potest admitti con-»
stitutio et addictio bonorum fieri? quid ergo, si post addic-
tionem libertatum conservandarum causa factam in integrum
sit restitutus? utique non erit dicendum revocari libertates,

a quae semel competierunt. Haec constitutio libertatum tuen*
darum causa introducta est : ergo si libertates nullae sint
datae, cessat constitutio. quid ergo, si vivus dedit libertates
vel mortis causa et, ne de hoc quaeratur, utrum in fraudem
creditorum an non factum sit, idcirco velint addici sibi bona,
an audiendi sunt? et magis est, ut audiri debeant, etsi

7 deficiant verba constitutionis. Sed cum multas divisiones
eiusmodi constitutioni deesse perspeximus, lata est a nobis
plenissima constitutio, in quam multae species collatae sunt,
quibus ius huiusmodi successionis plenissimum est effectum :
quas ex ipsa lectlone constitutionis potest quis cognoscere.

XII.

DE SUCCESSIONIBUS SUBLATIS, QUAE FIEBANT PER

BONORUM VENDITIONEM ET EX SENATUS

CONSULTO CLAUDIANO.

Erant ante praedictam successionem olim et aiiae per

§ 6. For in integrum restitutio see on Bk. iv. 6. 33 inf. The causa for
the restitutio here is minor aetas.
§ 7. Justinian's own constitution is in Cod. 7. 2. 15. 1-6.
Tit. 12. For the system of bankruptcy execution in use under the

Tit. I a.] DE SUCGESSIONIBUS SUBLATIS, ETC. 389

universitatem successiones. qualis fuerat bonorum emptio,
quae de bonis debitoris vendendis per multas ambages fuerat
introducta et tunc locum habebat, quando indicia ordinaria
in usu fuerunt : sed cum extraordinariis iudiciis posteritas usa
est, ideo cum ipsis ordinariis iudiciis etiam bonorum vendi-
tiones exspiraverunt et tantummodo creditoribus datur officio

iudida ordinaria see Excursus X at the end of this volume, and Mr.
Posters note on Gaius iii. 77, He adopts Savigny's theory that there were,
from the first, two different modes of proceeding against insolvent debtors :
the one — manus iniectio or personal execution— applying only where the
judgment or confession on which execution issued was on a money loan,
real (mutuum) or fictitious (nexum) or on certain other obligations assimi-
lated by statute to mutuum, Gaius iv. 22 ; the other, or execution against
the property, being resorted to in all other cases. A commoner view is
that, until about 100 B.C, manus iniectio (though its severities were
mitigated by the lex Poetelia, Livy viii. 28) was the only remedy open to
a creditor if his debtor refused or was unable to satisfy a judgment debt ;
about which time a new form of execution against the property, or real
execution, was introduced by the Edict, of which a leading feature was
sale of the bankrupt's universitas iuris by auction to the bidder who
offered the creditors the highest percentage on their claims, this prae-
torian form of bankruptcy execution being called bonorum emptio or ven-^
ditio, and being described by Gaius (iii. 77-81) as one of the kinds of
universal succession.

Though it is difficult to come to any definite conclusion on so obscure a
topic, the latter view seems best supported by the facts, apart from its in-
herent probability on grounds of historical jurisprudence. Savigny has
to prove two positions : first, that personal execution was confined to the
classes of debts specified ; and second, that a system of real execution was
in vogue at Rome from the earliest times.

In support of the former he calls attention to what seems an undeniable
fact, viz. that the Romans always drew a broad distinction between debts
incurred by money loans and all other debts, and cites various authors
(e.g. Gellius 20. i, quoting the Twelve Tables, and Livy vi. 14, viii. 28,
xxiii. 14) to show that manus iniectio is almost invariably associated with
debts of the first kind. On the other hand, we have the explicit state-
ment of Gaius (iv. 21) that it was the proper procedure on every judgment
debt, however incurred. Savigny, however, relies most on chaps. 21 and
22 of the lex Rubria or lex Galliae Cisalpinae, in which it is provided that
when an action is brought for pecunia certa credita, manus iniectio shall
be employed : when on any other liability, another procedure may be re-
sorted to — ' eos duci, bona eorum possideri iubeto.' On his interpretation,
this means that, for pecunia certa credita, the execution must be personal,
while in other cases it must be real ; but it is far more natural to suppose
that| except for money loans, the statute gave the magistrate the option (^

390 INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

iudicis bona possidere et prout eis utile visum fuerit ea dis-
ponere, quod ex latioribus digestorum libria perfectius ap-

either applying the harsher procedure, or putting the creditor in possession
of the debtor's property.

In the second place, if a system of real execution had existed at Rome
from the time of the Twelve Tables onwards, and with the width of opera-
tion which Savigny assigns to it, the rules by which it was regulated must
have formed no inconsiderable body of law, which (one might reasonably
suppose) would have been mentioned by general writers, and even been
described at length by those who specially concerned themselves with
legal topics. This, however, is not the case. It can hardly be denied
that in isolated cases the praetor allowed a debtor's estate to be seized
and sold, and Savigny cites an instance of this even before the lex Poe-
telia (Livy ii. 24) ; but we have the express statement again of Gaius (iv.
35) that the systematic employment of such a procedure was believed to
date from the praetorship of Publius Rutilius, doubtless the well known
statesman and jurist who was consul B.C. 105 : 'quae species action is . . .
a praetore Publio Rutilio, qui et bonorum venditionem introduxisse dicitur,
comparata est.' If bonorum venditio, as a system of execution in bank-
ruptcy standing in contrast with manus iniectio, had existed from the
beginning of Roman legal history, we may surely presume that the fact
would have been known to Gaius.

In the text before us Justinian connects the disappearance of bonorum
venditio with the abolition of the iudicia ordinaria. It seems more probable
that both its disappearance, and the procedure in use under Justinian
himself, were in some way due to or connected with a senatus-consult
passed under one of the earlier emperors, and mentioned in Dig. 27. 10. 5
and 9, by which it was provided that where the bankrupt was of senatorial
rank, and the creditors assented, instead of the estate being sold en bloc
(bonorum venditio), a curator bonorum should be appointed by the magis-
trate for the purpose of disposing of the assets piecemeal and in lots, and
paying the creditors pro rata out of the proceeds. The ordinary execution
in bankruptcy of Justinian's time (bonorum distractio, Bk. ii. 19. i supr.)
was very similar in character. The creditors, or some of them, applied to
the magistrate for missio in bona : from the granting of this application
an interval was allowed for others to come in and prove their claims by
action, those who resided in the same province having two, others four
years for this purpose. As soon as it had elapsed, those who had not yet
proved their claims were excluded from all benefit in the proceedings, and
could demand satisfaction out of the bona possessa only if a balance re-
mained after paying the rest in full, Cod. 7. 72. 10, unless they were
hypothecary creditors, in which case, if they preferred it, they could rely
exclusively on their security, and take no part in the liquidation at all.
During the two or four years the estate, though technically possessed by
the creditors who had been missi in possessionem, was administered by a
curator, whom other creditors made their defendant (and not the bankrupt
himself) in the actions which they brought for the establishment of their

Tit. 13.] DE OBUGATIONIBUS. 391

parebit. Erat et ex senatus consulto Claudiano miserabilis 1
per universitatem adquisitio, cum libera mulier servili amore
bacchata ipsam libertatem per senatus consultum amittebat
et cum libertate substaatiam : quod indignum nostris tem-
poribus esse existimantes et a nostra civitate deleri et non
inseri nostris digestis concessimus.

XIII.
DE OBLIGATIONIBUS.

Nunc transeamus ad obligationes. obligatio est iuris vin-
culum, quo necessitate adstringimur alicuius solvendae rei
secundum nostrae civitatis iura. Omnium autem obligationum 1

claims, and by whom the assets were sold in lots ; the proceeds of the sale
were distributed by the judge among the creditors, in a determinate order
of priority (for which see Poste's Gaius p. 352). Property which the insol-
vent might subsequently acquire remained liable to successive sales, until
the creditors had been paid in full.

Embarrassed debtors could also usually avail themselves of a procedure
more in the nature of a voluntary composition with creditors, called cessio
bononim (Bk. iii. 25. 8 ; iv. 6. 40 ; ib. 14. 4 inf.), which was introduced by
a lex Julia of one of the two first Caesars. By adopting this course they
escaped liability to arrest and imprisonment, Cod. 7. 71. i, which bank-
rupts proper might still incur if the missio in bona produced no results ;
a debtor could be committed to prison at the outset only on the application
of the Treasury. Further, they did not become infames, like bankrupts,
Cod. 2. 12. II : 7. 71. 8. pr., and were allowed to retain so much of their
after-acquired property as was necessary for their subsistence (bene-
ficium competentiae, see on Bk. iv. 6. 37 inf.). Dig. 42. 3. 4, Cod. 7. 71. i.
No debtor, however, could claim to make a cessio bonorum whose
insolvency was due to his own fault. The procedure after the surrender
seems in all essential points to have been the same as in bankruptcy.

§ 1. For the SC. Claudianum see Bk. i. 3. 4 supr.

A mode of universal succession described by Gaius (iii. 85-87), but not
alluded to by Justinian, as being obsolete in his day, is in iure cessio of
an hereditas by an agnate entided on intestacy, for which see p. 268 supr.
It seems improper to regard this as a universal succession, for what the
agnate transferred was, not the hereditas, but the single right of becoming
heres to a succession as yet only delata.

Tit. XHI. For the general nature of obligations, their chief divisions,
and modes of transfer, see Excursus V, at the end of this Book.

§ L The division of obligations into civiles and praetoriae or honorariae
obviously does not correspond with that explained in Excursus V inf. into

39* INSTITUTIONUAf LIBRT QUATTUOR. [Lib. III.

summa divisio in duo genera diducitur: namque aut civiles
sunt aut praetpriae. civiles sunt, quae aut legibus constitutae
aut certe iure civili comprobatae sunt, praetoriae sunt, quas
praetor ex sua iurisdictione constituit, quae etiam hondrariae
2 vocantur. Sequens divisio in quattuor species diducitur : aut
enim ex contractu sunt aut quasi ex contractu aut ex maie-
ficio aut quasi ex maleficio. prius est, ut de his quae ex
contractu sunt dispiciamus. harum aeque quattuor species

civil and natural : it has reference, as appears from the text, to the legis-
lative organ by which it was declared that such or such an act or event
should engender a (civil) obligation. In this sense civiles obligationes are
those which were made actionable by the organs of the civil law — ^by a lex,
plebiscitum, senatusconsult, imperial constitution, or by the action of the
jurists : obligationes praetoriae are those which owed their actionability to
the edict : * quas praetor ex sua iurisdictione constituit ' seems to mean
' quas, occasione a iuris dicundi munere sumpta, decretis primum, deinde
edicto perpetuo constituit.'

§ 2. The sources of obligations are thus enumerated by Modestinus in
Dig. 44. 7. 52. pr. : res — verba — consensus (the three forms of contractual
liability)— lex — ius honorarium — necessitas— peccatum. Lex and neces-
sitas he explains as follows : ' lege obligamur, cum obtemperantes legibus

aliquid secundum praeceptum legis aut contra facimus : necessitate

obligantur quibus non licet aliud facere, quam quod praeceptum est : quod
evenit in necessario herede.' The fourfold division of Justinian, though
more complete than that given by Gaius in his Institutes (iii. ^%\ is in
effect derived from the same writer's liber tertius aureorum (Dig. 44. 7, 5),
from which Justinian literally takes his instances of obligations arising
quasi ex contractu and quasi ex delicto, and in which (§§ I and 5) these
terms occur, though a few lines above they are comprised under the per-
plexing expression ' variarum causarum figurae.' The meaning of these
four sources of obligations will appear sufficiently from the text relating to
them respectively: but they do not comprehend all the obligations of
Roman law, and therefore the classification must be condemned as in the
first place inexhaustive. Contracts (sensu Romano) are those agreements
which were actionable under even the old civil law : but in course of time
a considerable number of other agreements were made actionable by the
influence of the jurists, the edict, and imperial enactment : in none of
these, which the commentators call pacta vestita, to distinguish them from
pacta nuda, was the obligation said to arise ex contractu, and in fact they
have no place whatever in Justinian's arrangement No system of law
probably can dispense with the notion of obligation quasi ex contractu, for
there must always be circumstances in which one person is placed under
an obligation to another without any promise, express or implied, made
by him to the latter, and which yet so closely resemble those of contract

Tit. 13.] DE OBLIGATION/BUS. 393

sunt: aut enim re contrahuntur aut verbis aut litteris aut
consensu, de quibus singulis dispiciamus.

as to make this their most reasonable denomination: but the fault of
Justinian is that nothing which he says about this source of obligation
suggests any general criterion by which one can precisely draw the line
between it and contract proper, or which accounts for the existence of an
obligation in the particular instances by which he illustrates the concep-
tion. But the idea of obligation quasi ex delicto, which is open to the same
objection, is further to be condemned as really unnecessary, as will appear
from the cases by which it is exemplified (Bk. iv. 5 inf.), most of which
are instances of vicarious responsibility analogous to the liability in tort of
a railway company or other employer for the wrong-doing or negligence
of its servants. Its existence is to be accounted for purely on historical
grounds (see Hunter's Roman Law p. xxxvi), and it is to be regretted that
Justinian tolerated its survival. The actual sources of obligation in Roman
law may more logically be arranged as follows : (i) Agreement, comprising
the four classes of contracts, the so-called innominate contracts, and pacta
vestita. (2) Circumstances analogous to contract, including tutela, cura,
negotiorum gestio, joint inheritance, joint ownership not arising ex con-
tractu, litis contestatio, and perhaps the unjust enrichment of one man at
the cost of another (cf. Tit. 14. i. with Tit. 27. 6 inf.). (3) A person's
mere * unilateral ' expression of will (exemplified by some cases of pollici-
tation e. g. Dig. 50. 12. I. I, ib. 2, though as a general rule 'ex nuda
poUicitatione nulla actio nascitur' Paul, sent rec. 5. 12. 9), or that of
another by whose decease one has taken a benefit (exemplified by legacy
and fideicommissum). (4) Judgment or magisterial order. (5) Delict.
For an enumeration of the sources of information in English law see Sir
W. R. Anson's Law of Contract (Introductory chapter).

The idea of agreement (conventio or pactio) underlies that of contractus :
' et est pactio duorum pluriumve in idem placitum et consensus ' Dig. 2,
14. I. 2. Its analysis into the elements of offer or proposal and acceptance
is the work rather of general jurisprudence than of a particular system,
which has been done once for all by Savigny, Oblig. § 52, System iii*
J§ 140, 141 : cf. Pollock's Principles of Contract, chap. i. Pactio then is
the genus of which contractus is the species : the differentia lies in the
circumstance that to certain pacta or pactiones a civilis obligatio was
annexed by the older Roman civil law in virtue either of their nature, or
of their being attended by some other fact besides the mere fact of agree-
ment. That, through which a pactum is also a contract, is usually called
its causa civilis, and of such causae civiles there are four, viz. (i) res, ac-
ceptance of ownership, possession or detention of an object by one party
from the other, with an express or implied undertaking to do something in
return, whence the four Real Contracts. (2) The expression of the agree-
ment in a certain verbal form (obligatio verborum), that of question and
answer (stipulatio) being regarded as the verbal contract par excellence.
(3) The employment of writing in a manner peculiarly characteristic of the

394 INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

XIV.

QUIBUS MODIS RE CONTRAHITUR OBLIGATIO.

Re contrahitur obligatio veluti mutui datione. mutui autem
obligatio in his rebus consistit, quae pondere numero men-
surave constant, veluti vino oleo fnimento pecunia numerata
aere argento auro, quas res aut numerando aut metiendo aut
pendendo in hoc damus, ut accipientium fiant et quandoque
nobis non eaedem res, sed aliae eiusdem naturae et qualitatis
reddantur. unde etiam mutuum appellatum sit, quia ita a me
tibi datur, ut ex meo tuum fiat, ex eo contractu nascitur

Romans, whence the obligatio litteranim ; and (4) in transactions of four
specific kinds the mere agreement (consensus) of the parties : whence the
consensual contracts of sale, hire, partnership, and agency. How other
pacts besides these were gradually made actionable, though not dignified
by the Romans with the name of contract (which is less a legal than a
historical term) will appear as we proceed.

It is difHcult to say why Gaius (whom Justinian follows) discussed the
four classes of contracts in the order— Real, Verbal, Literal, and Consen-
sual. Mr. Poste supposes that it was perhaps the order of their chrono-
logical development, here following Savigny, who holds that mutuum was
the earliest contract which the Roman law enforced by action : for an
acute criticism of this hypothesis, and of Ortolan's and Sir Henry Maine's
theory that there was a time when ^e Roman law possessed but one
common form for contract and conveyance (the negotium per aes et
libram), see Hunter's Roman law pp. 352-379, where the whole question
of the origin and development of the Roman contract system is well and
fully discussed.

The real and consensual contracts were said to be iuris gentium : and to
suppose that one of these (mutuum), at any rate in the form in which we
know it, was actionable at Rome before the formal civil law contract of
stipulatio seems entirely opposed to the general conclusions of historical "
law. On the other hand it must be admitted that mutuum seems to stand
clearly apart from the three other real contracts : the remedy on it was
condictio, a stricti iuris iudicium, while they were all pursued by bonae
fidei actions ; and in mutuum the borrower is made owner of the thing
borrowed ; the lender ' dat,' i. e. parts with his own dominium : whereas in
the other three nothing is ever transferred beyond possession, so that the
transferor can always in case of breach recover his own by real action.
These in fact seem to have been derived from fiducia (the nature of which
has been already described, p. 328 supr.), and the action on which was
bonae fidei, Gaius iv. 62 : the difficulty of ascribing the same origin to
mutuum lies in the difference of the remedy.

Tit. XrV. The obligation in a real contract is generated by delivery,

Tit. M.] QUIBUS MODIS RE CONTRAHITUR OBLIGA TIO. 395

actio quae vocatur condictio. Is quoque, qui non debitum 1
accepit ab eo qui per errorem solvit, re obligatur : daturque
agenti contra eum propter repetitionem condicticia actio,
nam proinde ei condici potest * si paret eum dare oportere '
ac si mutuum accepisset: unde pupillus, si ei sine tutoris
auctoritate non debitum per errorem datum est, non tenetur
indebiti condictione non magis quam mutui datione. sed
haec species obligationis non videtur ex contractu consistere,
cum is qui solvendi animo dat magis distrahere voluit nego-

whether what passes is dominium, as in mutuum, possession, as in pignus,
or detention, as in commodatum and depositum. The bare agreement to
deliver was by itself not binding : else the contract would have been not
real, but consensual.

A mutuum (loan for consumption, as contrasted with commodatum, loan .
for use) exists only if the property passes in what is lent : * si non fiat tuum,
non nascitur obligatio ' Dig. 12. i. 2. 2, so that as a general rule no one
can lend in this form unless he is owner. Dig. ib. 2. 4, and has the capacity
of alienation, Bk. ii. 8. 2 supr. : cf. Dig. 26. 8. 9 pr. The chief duty of the
borrower is specified in the text, viz. to give back as much and as good as
was lent him : not the same thing, for only those objects can be thus lent
which the commentators call res fungibtles, and the Romans quantitas ;
or, as it is otherwise expressed, they have to be returned not in specie,
but in genere. Unless a date for repayment was agree^ upon either ex-
pressly or by implication, it could be demanded at any time. If interest
was part of the bargain, it could not be sued for under the mutuum itself,
owing to the nature of the remedy : the agreement to pay it must be
entered into by stipulation, so that it, and the promise to repay the prin-
cipal, were distinct contracts. The action on a loan of money was called
condictio certi, that on any other mutuum condictio triticaria : see the re-
ferences in the General Index. For the bearing of the SC. Macedonianum
on the law of money loans see Bk. iv. 7. 7 and notes inf.

§ 1. In Tit. 27. 6 inf. (derived from Gaius in Dig. 44. 7. 5. 3) the person
to whom money not really due is paid by mistake is said to be bound to
return it quasi ex contractu. In Gaius* time (iii. 91) it had been a moot
point whether a pupillus to whom such a payment had been made without
his guardian's auctoritas was liable to condictio indebiti ; perhaps this was
part of the larger question whether a pupillus was bound even naturaliter by
his unauthorized contracts, Dig. 26. 8. 5, pr. and i. Gaius himself was in
favour of the affirmative opinion, which on principle seems right, for (as
Mr. Poste says) condictio was not founded on contract, but on the fact
that a defendant had been without cause enriched at the expense of the
plaintiff.

Condictio indebiti lay only under the following conditions :

(i) What is paid must not really be owed by the one party to the other,
even naturaliter : ' si quod dominus servo debuit manumisso solvit, quam-

396 INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

2 tium quam contraherc Item is cui res aliqua utenda datur,
id est commodatur, re obligatur et tenetur commodati actione.
sed is ab eo qui mutuum accepit longe distat : namque non
ita res datur, ut eius fiat, et ob id de ea re ipsa restituenda
tenetur. et is quidem qui mutuum accepit, si quolibet fortuito
casu quod accepit amiserit, veluti incendio ruina naufragio
aut latronum hostiumve incursu, nihilo minus obligatus per-
manet at is qui utendum accepit sane quidem exactam
diligentiam custodiendae rd praestare iubetur nee sufficit ei
tantam diligentiam adhibuisse, quantam suis rebus adhibere
solitus est, si modo alius diligentior poterit earn rem cus-
todire : sed propter maiorem vim maioresve casus non tenetur,
si modo non huius culpa is casus intervenerit : alioquin si id
quod tibi commodatum est per^re ferre tecum malueris et
vel incursu hostium praedonumve vel naufragio amiseris,

vis existimans ei aliqua teneri actione, tamen repetere non poterit, quia
naturale agnovit debitum 'Dig. 12. 6. 64, ' indebitum est non tantum, quod
omnino non debetur, sed et quod alii debetur, si alii solvatur, aut si id,
quod alius debebat, alius, quasi ipse debeat, sol vat ' Dig. ib. 65. 9. If the
defendant in an action in which ' lis crescit in duplum ' (Tit. 27. 7 inf.) ad-
mitted his liability and paid the single damages, and subsequently was
able to show that in fact he had not been liable, he could not recover the
money as indebitum (loc. cit., Gaius ii. 283), on the ground that his volun-
tary payment was in effect a compromise, and so by implication a contract.
On this principle money paid under a supposed but non-existent judgment
was irrecoverable, Dig. 10. 2. 36 : conversely, ii^ though there is an actual
debt, the debtor pays something different from what he really owes, he can
recover, Dig. 12. 6. 32. 3.

(2) The payment must be made in error: 'et quidem si indebitum
ignorans solvit, per banc actionem condicere potest : sed si sciens se non
debere solvit, cessat repetitio' Dig. 12. 6. i. i : and this in some cases
even if the mistake was one of law, Dig. 36. 4. i. pr.

(3) The payment must be accepted by the payee in good faith ; i. e. he
must believe the debt to be due : else he commits theft, and should be
sued by condictio furtiva, which excludes the condictio indebiti : Dig. 47.
2. 43. pr. ; 13. 1. 18.

The defendant in condictio indebiti, if judgment went against him, was
not bound to restore the whole of what had been paid him, but only so
far as he was enriched by the payment at the time of litis contestatio :
' bonae fidei possessor in quantum locupletior factus est tenetur' Dig. 12.
6. 3 ; ib. 26. 12 ; ib. 32, pr.

§ 2. The duties of the borrower in a commodatum besides that of rea-
sonable care (diligentia, for which see Excursus VI at the end of this

Tit. 14.] QUIBUS MODIS RE CONTRAHITUR OBUGATIO. 397

dubium non est, quin de restituenda ea re tenearis. com-
modata autem res tunc proprie intellegitur, si nulla mercede
accepta vel constituta res tibi utenda data est. alioquin
mercede interveniente locatus tibi usus rei videtur : gratuitum
enim debet esse commodatum. Praeterea et is, apud quern 3
res aliqua deponitur, re obligatur et actione depositi, qui et
ipse de ea re quam accepit restituenda tenetur. sed is ex eo
solo tenetur, si quid dolo commiserit, culpae autem nomine,
id est desidiae atque neglegentiae, non tenetur : itaque securus

Book) were (i) to restore the object lent at the time agreed upon, or so
soon as the purpose for which it was lent was satisfied : it could be re-
demanded earlier only upon breach of another general term of the con-
tract, viz. (2) to use it only for the purpose for which it was lent : to use it
for others was theft, if the borrower was aware that the other would not
have permitted it, Bk. iv. i. 6-8 inf., (3) to.retum it in as good condition
as when received, excepting such deterioration as naturally results from its
use, or as might reasonably have been expected : ' si reddita quidem sit
res commodata, sed deterior reddita, non videtur reddita, quae deterior
facta redditur, nisi quod interest praestetur : proprie enim dicitur res non
reddita quae deterior redditur' Dig. 13. 6. 3. i : for the exceptions see ib.
23, and 5.7, cited in Hunter's Roman Law p. 302, (4) to restore not only it,
but also any gain which he may have made by using it in a manner not
authorized by the contract, Dig. ib. 13. i.

Like depositum, pignus, and mandatum, commodatum is said to gene-
rate an obligation only imperfectly bilateral : i. e. as a general rule, only
one of the parties (the borrower) is bound, and only one (the lender) is
entided. But very often a liability of the latter will arise from circum-
stances posterior to the contract itself: thus, in commodatum, though (4)
supr. implies that all ordinary expenses in connection with the object
lent must be borne by the borrower, the lender will be bound to indemnify
him for any extraordinary costs necessarily incurred : e. g. ^ quicquid
in rem commodatam ob morbum vel aliam rationem impensum est a
domino recipi potest' Paul. sent. rec. 2. 4. i : or for any injury caused
by it to the borrower or his property, if this can be attributed to the
&ult of the lender: e.g. Dig. 13. 6. 22. These duties can be enforced
against the lender either by retentio (lien) or by actio commodati (con-
traria).

§ 3. Like commodatum, depositum was a gratuitous contract : in the
absence of special agreement, the depositary's duties were as follow:
(i) it is commonly said that he is answerable only for dolus (and culpa
lata) : see the text above ; Dig. 13. 6. 5. 2 : 16. 3. i. 8 : but he is answer-
able also for culpa levis in concreto even where it does not amount to
culpa lata : ' nisi tamen ad suum modum curam in deposito praestat,
ftaude non caret : nee enim salva fide minorem his quam suis rebus dili*
gentiam praestabit ' Dig. 16. 3. 32, hence he was not answerablQ if the

398 INSTITUTIONUM UBRI QUATTUOR. [Lib. III.

est qui parum diltgenter custoditam rem furto amisit, quia,
qui n^legenti amico rem custodiendam tradit, suae facilitati

property was stolen, though as a rule it was presumed that allowing theft
argued absence of diligentia exacta, Dig. 17. 2. 52. 3: (2) to return it in
as good condition as when delivered to him, unless its deterioration is
due to causes not within the ken of that degree of diligence which he is
bound to show. Dig. 16. 3. I. 16, (3) to restore it (and any fruits it may
have borne while in his custody, Dig. 22. i. 38. 10) on demand : even if a
time was agreed upon for its return, he must give it up before if required,
Cod. 4. 34. II. pr. The obligation to return a depositum was absolute :
so that even if the depositary allied that it belonged to him, he must
first give it up, and then might claim the dominium by real action, Cod.
4. 34. II. Lastly, (4) he might not use the depositum : such use without
the depositor's consent amounted to theft, Bk. iv. i. 6 inf., unless made
bona fide, in which case he must give up all profit which had accrued to
him thereby, Cod. 4. 34. 4.

The same duties might be incurred ex post facto by the depositor as
by the commodator, but he was required to show a higher degree of dili-
gentia, the contract being in his interest alone : the depositarius, however,
could enforce them only by actio deposit! (contraria), not by retentio or
lien, Cod. 4. 34. 1 1. A peculiarity of the actio deposit! directa was that
in it no compensatio or set off by the defendant was allowed, Bk. iv. 6. 30
inf.

If the deposit was occasioned by pressing and irresistible necessity,
e. g. by tumultus, incendium, ruina, or naufragium — the liability of the
depositarius was doubled in respect of damages : this is usually called
depositum miserabile: 'de eo, quod tumultus, incendii, ruinae, naufragii
causa depositum est, in heredem de dolo mortui actio est pro hereditaria
portione et in simplum et intra annum quoque : in ipsum et in solidum
et in duplum et in perpetuum datur' Dig. 16. 3. 18 : cf. Bk. iv. 6. 17 and
23 inf. The liability had always been in duplum when the deposit was
made by fiducia : in other words, a denial of the trust was treated as a
furtum nee manifestum. When the praetor made a violation of the
duties incurred by mere acceptance of detention actionable, he reduced
the damages by one half: ' ex causa deposit! lege duodecim tabularum in
duplum actio datur, edicto praetoris in simplum ' Paul. sent. rec. 2. 12. 11.

Two varieties of the contract are sequestration and the so-called depo-
situm irregulare. The first is the deposit of property by two or more
persons in order to withdraw it from the disposition of both or all, espe-
cially where the title to it is in dispute : here the depositarius, or, as he
was specifically called, sequester, might by special arrangement have
civil possession (p. 336 supr.) in order to prevent acquisition of the object
per usucapionem by any of the claimants, Dig. 16. 3. 6. Depositum
irregulare exists where a res fungibDis is deposited with the agreement
that the depositary shall become its owner, and only be bound to return
a similar quantity and quality. The thing is at his risk ; i.e. if it is acci-
dentally destroyed, lost, or stolen, he alone suffers ; but he has the right

Tit.i4.] QUIBUS MODIS RE CONTRAHITUR OBLIGATIO. 399

id imputare debet. Creditor quoque qui pignus accepit re 4
obligatur, qui et ipse de ea ipsa re quam accepit restituenda
tenetur actione pigneraticia. sed quia pignus utriusque gratia
datur, et debitoris, quo magis ei pecunia crederetur, et credi-
toris, quo magis ei in tuto sit creditum, placuit sufficere, quod
ad earn rem custodiendam exactam diligentiam adhiberet :

to use it. The transaction differs from mutuum, which it so closely
resembles, in the intention of the parties : a mutuum is given in the
interest of the borrower, or, if payment of interest be stipulated for, in
that of both parties : a deposit of this kind is made in the interest of the
depositor only : and the difference was material, for by the actio depositi,
which was bonae fidei, interest was recoverable, whether due by agree-
ment or on account of mora. The commonest illustration of the contract
is to be found in banking ; if money were deposited unsecured by key,
seal, or other fastening, it was presumed to be a depositum irregulare :
^ . . . idem iuris esse in deposito : nam si quis pecuniam numeratam ita
deposuisset, ut neque clausam neque obsignatam traderet, sed adnume-
raret, nihil aliud eum debere, apud quern deposita esset, nisi tantundem
pecuniae solvere* Dig. 19. 2. 31.

§ 4. As a source of rights in rem, pignus has been already discussed,
p. 329 sq. supr. Justinian's requirement of exacta diligentia in the pledgee,
though irreconcileable with Gaius in Dig. 13. 6. 18. pr. (where only that
qualem in suis rebus etc. is exacted), is confirmed by Ulpian and Paulus
in Dig. 13. 7. 13. I ; ib. 14. Some difficulty is occasioned by the word
'sufficere'; possibly the jurist (perhaps Gaius) from whom the text was
derived, after describing commodatum, and saying that the borrower was
answerable for exacta diligentia, went on ^ in pledge, on the other band,
it is sufficient that the pledgee should be as careful as in suis rebus ;'
and the compilers of the Institutes, while altering the degree of diligentia
to agree with Ulpian and Paulus, omitted to alter sufficere into some such
word as requiri (Schrader).

The chieif other duties of the pledgee were (i) to return the property
pledged when the debt was paid, or the ius pignoris otherwise deter-
mined. The general rule too is that he must either give up to the
pledgor all the fruits or other profit derived from the property, or deduct
their value from the amount of the debt. Dig. 13. 7. 22. pr. : but on this
point there was often some special agreement, e. g. antichresis. (2) If he
exercised the right of sale, he was bound to hand over to the pledgor only
what remained after discharging the principal debt with interest, unless
by his own fault he sold it for less than its real value : in which case he
was liable to pay the difference himself.

The possible duties to which the pledgor might become liable ex post
facto correspond to those which have been noticed under commodatum :
he was also bound (i) to indemnify the pledgee against all liabilities
which he might incur in his efforts to sell the property at the highest
possible price. Dig. 13. 7. 22. 4; (2) to deliver it up when required for

400 INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

quam si praestiterit et aliquo fortuitu casu rem amiserit,
securum esse nee impediri creditum petere.

sale, if it had been left in his hands on hire or as precarium ; (3) to com-
pensate his creditor for any loss he might have suffered through his
pledging to him a res aliena, and so constituting in his favour an unreal
ius pignoris, Dig. 13. 7. i. 2.

The principle of the real contracts is part performance : their causa
civilis was the fact that one of the parties had done all that he had
primarily undertaken, or rather that the other had in a sense accepted
performance from him. Shortly after the fall of the Republic, and per*
haps, as has been supposed, through the influence of the jurist Labeo
(Dig. 19. 5. I. I ; ib. 19. pr. ; ib. 20. pr.), the Roman contract system
received a considerable extension by a more general recognition of this
principle. Every agreement, even though not belonging to any of the
three hitherto established classes of contract, in which an act on the one
side was the consideration for an act on the other, was at length, though
only by a gradual development, held enforceable by action at the suit of
that party who had performed all to which he was bound under its terms :
' sed et si in alium contractum res non transeat, subsit tamen causa, ele^
ganter Aristo Celso respondit, esse obligationem, ut puta dedi tibi rem,
ut mihi aliam dares, dedi, ut aliquid facias, hoc awaWaytM esse, et hinc
nasci civilem obligationem * Dig. 2. 14. 7. 2. The essential marks of such
actionable agreement thus are (i) mutuality ; there must be a oi/raXXay/ia,
e. g. an act must be promised on the one side in return for an act on the
other; (2) there must have been performance on one side; the mere
bilateral agreement gives rise to no civil obligation : * item emptio ac
venditio nuda consentientium voluntate contrahitur, permutatio autem ex
re tradita initium obligationi praebet, alioquin, si res nondum tradita sit,
nudo consensu constitui obligationem dicemus, quod in his duntaxat
receptum est, quae nomen suum habent, ut in emptione, venditione,
conductione, mandato' Dig. 19. 4. i. 2.

Such agreements are by the modem civilians called innominate (real)
contracts ; the Romans themselves do not call them ' contractus,' and in
fact have no general designation for them. Though they are roughly
classified by Paulus according to the possible acts which might be the
respective considerations for one another (' aut enim do tibi ut des, aut
do ut facias, aut facio ut des, aut facio ut facias ' Dig. 19. 5. 5. pr.), the
more usual clue to their existence is the mention of the action by which
they were pursued, the actio civilis in factum or praescriptis verbis (Tit
24. I and 2 infr.), by which the party who had performed could exact
counter performance or recover damages from the other ; against him no
action lay until such counter performance had ensued, so that, if that
other refused to keep his promise, and his own part of the agreement had
consisted in a ' dare,* he could redemand what he had conveyed by the
older remedy known as condictio causa data causa non secuta ; or he
was free to change his mind, and sue for reconveyance, as it is said, *ex

Tit. 15.] DE VERBORUM OBUGATIONE, 401

XV.

DE VERBORUM OBLIGATIONE.

Verbis obligatio contrahitur ex interrogatione et responsu,
cum quid dari fierive nobis stipulamur. ex qua duae pro-
ficiscuntur actiones, tarn condictio, si certa sit stipulatio, quam
ex stipulatu, si incerta. quae hoc nomine inde utitur, quia
stipulum apud veteres firmum appellabatur, forte a stipite
descendens.

mera poenitentia : ' 'sed si tibi dedero, ut Stichum manumittas, si non
facis, possum condicere, aut si me poeniteat, condicere possum' Dig.
13. 4. 3. 2.

That the general principle was only gradually developed is clear from
a comparison of Dig. 19. 5. 5. 3 with 9. 15 and 22 of the same Title, and
with Cod. 2. 4. 6 ; in the first of these passages Paulus says the actio
praescriptis verbis will not lie in a case of facio ut des, in the others it is
held applicable, so that probably it may be inferred that for some while
only those agreements were enforceable by this remedy in which the
part performance by which the action was supported was a conveyance
(dare).

The commonest examples of innominate contract are permutatio,
exchange, for which see Tit. 23. 2 infr. : aestimatum, the acceptance of
property valued at a certain maximum under the condition of either
returning it or paying the price at which it is valued : ' actio de aestimato
proponitur tollendae dubitationis gratia, fuit enim magis dubitatum cum
res aestimata vendenda datur, utrum ex vendito sit actio propter aesti-
mationem, an ex locate, quasi rem vendendam locasse videar, an ex
conducto, quasi operas conduxissem, an mandati : melius itaque visum
est, banc actionem proponi : quoties enim de nomine contractus am-
bigeretur, conveniret tamen aliquam actionem dari, dandam aestima-*
toriam praescriptis verbis actionem' Dig. 19. 3. i. pr. : transactio or
compromise, Dig. 2. 15, Cod. 2. 4, and precarium or permissive oc-
cupancy, at any rate in the later stages of the law : * cum quid precario
rogatum est, non solum interdicto uti possumus, sed et incerti con-
dictione, id est, praescriptis verbis' Dig. 43. 26. 19. 2. But the practical
value of the actio praescriptis verbis is best realized in cases which
cannot certainly be regarded as within the principle of any named (i. e.
real or consensual) coiitract, and in which the jurists said ^ tutius esse,
praescriptis verbis agere.'

Tit. XV. As forms of verbal contract, distinct from stipulatio, are
usually mentioned dotis dictio, votum, and iurata promissio liberti. The
first, which had disappeared before Justinian, was the constitution of a dos
in solemn form, open only to the woman with her guardian's auctoritas,
her father or paternal ascendant, and her debtor acting by her in-*
structions (Ulpian, reg. 6. 2, Cic. pro Flacco 35. S6^ pro Cacc 25. 72),

Dd

40a INSTITUTJONUM UBRI QUATTUOR. [Lib. III.

1 In hac re olim talia verba tradita fuerunt: spondes?
spondeo, promittis? promitto, fidepromittis ? fidepromitto,

but binding only if accepted ; tbe fonn is preserved in Terence, Andr. 5.
4. 47 ' Ckr. dos, Pamphile, est decern talenta; P. acdpio ;' on which we
have the commentary, 'ille nisi dixisset acdpio dos non esset: datio
enim ab acceptione confinnator, nee potest videri datum id, quod non
acceptum :' cf. Seneca, controv. i. 6 'quidam dictas non accepere dotes.*
Votum was a mere promise (poUicitatio) made for a religious purpose, or
in favour of a church or pious foundation. Dig. $a 12. 2. Lastly, a freed-
man on manumission could effectually bind himself to certain services to
his patron by mere oath. Dig. 38. i. 7, which between ordinary persons
imposed no actionable obligation whatever : cf. Tit. la i and note supr.

But the verbal contract fuxr '(oxr^p is stipulation, a disposition in
which the promise bound himself by returning an oral, affirmative
answer to the oral question of the promisee (stipulator), Cic. pro Caec 3.
Its essence lies, at any rate in the later periods of Roman law, not in
the necessity of observing prescribed forms of words, but in the sub-
stantial correspondence between question and answer, and in the formal
requirement of the presence of both parties : see on Tit. 19. 12 inf. This
is no special kind of contract, differing frx>m others in the sense in which
sale differs from hire, or deposit frx>m pledge ; it is only a universal form
into which any conceivable i^eement can be thrown, and into which
they frequently were thrown (even though actionable in themselves, e. g.
sale, apart from the form) on account of the great superiority to creditors
which stipulation possessed over the real and consensual contracts, except
mutuum, in the nature of the action by which it could be enforced. That
action, as is said in the text, was condictio : 'the short and sharp remedy '
(as Mr. Poste calls it) ' which, when brought for certa pecunia credita,
was the more formidable to a dishonest litigant, as it was accompanied
by a sponsio poenalis, whereby the vanquished party forfeited a third of
the sum in litigation, in addition, if he was defendant, to the original
claim.' The action on the real and consensual contracts, on the other
hand, was bonae fidei, and in many points favoured the defendant : see
on Bk. iv. 6. 28 infr. For the difference between condictio certi, condictio
triticaria, and actio ex stipulatu, see Gaius iv. 136, and references s. v.
' condictio ' in the General Index.

Ihering (Geist, § 46. note 747) considers Justinian's derivation of
stipulatio from stipulum, Paul. sent, rec 5. 7. i>, in the sense of ' firm,'
'settled,' to be correct. Savigny connects it with stips, and uses Festus*
interpretation of the word (stipem esse nummum signatum, testimonium
esse et id, quod datur stipendium militi, et cum spondetur pecunia, quod
Btipulari dicitur) to support his theory that stipulation in origin rested on
the fiction of a money loan. On the other hand, Isidorus says (Orig. 4,
24) ' dicta stipulatio a stipula : veteres enim, quando sibi aliquid promit-
tebant, stipulam tenentes frangebant, quam iterum iungentes, sponsiones
suas agnoscebant'

§ L The only form in which a stipulation could be originally concluded

Tit. 15 J DE VERBORUM OBLIGATIONE. 403

fideiubes? fideiubeo, dabis? dabo, facies? faciam. utrum
aut6m Latina an Graeca vel qua alia lingua stipulatio con-
cipiatUr, nihil interest, scilicet si uterque stipulantium intel-
lectum huius linguae habeat: aec necesse est eadem lingua
utrumque uti, sed sufficit congruenter ad interrogatum re-
spondere : qain etiam duo Graeci Latina lingua obligationem
contrahere possunt. sed haec sollemnia verba olim quidem
in usu fuerunt, postea autem Leoniana constitutio lata est,
quae sollemnitate verborum sublata sensum et consonantem
intellectum ab utraque parte solum desiderat, licet quibus-
cumque verbis expressus est»

Omnis stipulatio aut pure aut in diem aut sub condicione 2

was ' spondes ? spondee' So long as this was the case ihe contract was
strictly iuris civilis, and no one could be a party to it who was not a civis:
in fact, Gains says, so peculiarly Roman was this form, that it could not
even be expressed in Greek, 'quamvis dicatur a Graeca voce figurata
esse ' (Festus, s. v. spondere, oireVdo), oirovd^), and he proceeds (iii. 94) to
criticise as 'nimium subtiliter dictum' the opinion of those who held
that there was an exception to this rule when the Roman emperor con-
cluded a treaty of peace with an independent foreign monarch ; for, as
he adds, 'si quid adversus pactionem fiat, non ex stipulatu agitur, sed
iure belli res vindicatur.' The other forms mentioned in the text, however,
were iuris gentium, Gains iii. 93, and therefore were open to peregrini
no less than to cives, though it does not seem that in Gains' time they
might be expressed in any language ; he mentions only Greek and Latin.
The constitution of Leo, referred to in the text, and issued a.d. 469, ran
'omnes stipulationes, etiamsi non sollennibus vel directis sed quibus-
cunque verbis consensu contrahentium compositae sunt legibus cognitae
suam habeant firmitatem ' Cod. 8. 38. 10. Perhaps as a gradual result of
this enactment (cf. Cod. 2. 56. 4. 6) the necessity for the oral question and
answer, and possibly that for the simultaneous presence of the parties,
was practically dispensed with ; in other words, if two parties residing in
different places proposed to enter into a contract by stipulation, this
could be effected, without their meeting, by the intended promisor (or
both, if the contract was bilateral) signing a paper stating that he had
promised; from the signature arose the legal presumption that the
promise had been given in answer to a preceding question : ' si scriptum
in instrumento fuerit promisisse aliquem, perinde habetur atque si in-
terrogatione praecedente responsum sit' Tit. 19. 17 inf.; though this
presumption could be rebutted, if the promisor chose to be dishonest,
by express proof of an alibi, Tit 19. 12 inf. For a fuller explanation of
the legal force of such papers see Excursus VII L (on Tit. 21) at the end
of this Book.
§ 2. For condicio and dies see on Bk. i. 20. i supr., and for the ex*

Dd ri

404 INSTITUTIONUM LIBRI QUATTUOR, [Lib. III.

fit. pure veluti *quinque aueros dare spondes?' idque con-
festim peti potest, in diem, cum adiecto die quo pecunia
solvatur stipulatio fit : veluti ' decem aureos primis kalendis
Martiis dare spondes?' id autem, quod in diem stipulamur,
statim quidem debetur, sed peti prius quam dies veniat non
potest: ac ne eo quidem ipso die, in quem stipulatio facta
est, peti potest, quia totus dies arbitrio solventis tribui debet,
neque enim certum est eo die, in quem promissum est, datum
3 non esse, priusquam praetereat. At si ita stipuleris ' decem
aureos annuos quoad vivam dare spondes ? * et pure facta
obligatio intellegitur et perpetuatur, quia ad tempus deberi
non potest, sed heres petendo pacti exceptione submove-

pressions dies cedit, dies venit, on Bk. ii. 20. 20. The sense in which
Justinian here uses the phrase in diem is not uniform : ' circa diem duplex
inspectio est : nam vel ex die incipit obligatio, aut confertur in diem : ex
die, veluti Kal. Martiis dare spondes ? cuius natura haec est, ut ante diem
non exigatur, ad diem autem '* usque ad Kalendas dare spondes ?" ' The
confusion perhaps arises from the fact that where a stipulation is ex die,
in the sense of the passage cited, the solutio is ' dilata in diem,' as is said
in Dig. 45. I. 46. pr. The rule laid down by Justinian about such pro-
mises may be otherwise expressed by saying that until the arrival of the
dies the obligatio is naturalis only, and cannot be sued upon ; but if the
promisor voluntarily pays before the time, he cannot recover what he has
paid as indebitum, and there is a commodum repraesentationis (ii. 20.
14 supr.) in favour of the promisee ; * in diem debitor adeo debitor est, ut
ante diem solutum repetere non possit' Dig. 12. 6. 10. With the latter
part of the section cf Tit. 19. 26 inf.

§ 8. Dr. Hunter (Roman Law p. 465) seems to be wrong in affirming
this rule of obligations generally, in spite of the universality of the ex-
pression ' ad diem deberi non potest^' ' In fact, it is true only of stipulation,
and its reason is the strict nature of the contract, in which the intention
was less regarded than the words. It has no application to legacies, for
Mn condicionibus testamentorum voluntatem potius quam verba con-
siderari oporteat' Dig. 35. i. loi.pr. ; accordingly a bequest of an annuity
for a person's lifetime was construed as a number of separate bequests,
that of the first annual payment being made ' pure,* the following ones
under the suspensive condition of the legatees living to the day on
which they respectively fell due, Dig. 38. i. 4; ib. 8; 36. 2. 10. For a
case of innominate contract in conflict with Dr. Hunter cf. Dig. 2. 14.
52. 3 Me inofficioso patris testamento acturis, ut eis certa quantitas, quoad
viveret heres, praestaretur, pactus est: produci ad perpetuam praesta-
tionem id pactum postulabatur : rescriptum est neque iure uUo neque
aequitate tale desiderium admitti.' Even before the introduction of the
exceptiones pacti and doli the harsh result of the rule might be avoided

Tit. 15.] DE VERBORUM OBLIGATIONE. 405

bitur. Sub condicione stipulatio fit, cum in aliquem casum 4
differtur obligatio, ut, si aliquid factum fuerit aut non fuerit,
stipulatio committatur, veluti * si Titius consul factus fuerit,
quinque aureos dare spondes?' si quis ita stipuletur 'si in
Capitolium non ascendero, dare spondes ? ' perinde erit, ac
si stipulatus esset cum morietur dari sibi. ex condicionali
stipulatione tantum spes est debitum iri, eamque ipsam spem
transmittimus, si, priusquam condicio existat, mors nobis

by couching the stipulation in a different form ; instead of promising an
annuity of 100 aurei for five years, 500 might be promised in five equal
shares ex die ; or instead of promising 100 per annum for a person's
lifetime, a number of separate promises of 100 might be made ex die,
each under the suspensive condition of the promisee's living to such or
such a birthday.

§ 4. We have seen (§ 2 supr.) that an immediate, though not necessarily
a civil, obligation arose from a promise ex die ; e.g. Kalendis Martiis dare
spondes? A promise made subject to a suspensive condition — e.g. si
Titius consul fuerit factus— might at first sight seem to have no legal
effect at all : ' ante condicionem non recte agi, cum nihil ad interim de-
beatur' Dig. 20. 1. 13. 5. Yet this is clearly not so in fact; for (i) it is
said in the text that the promisee's hope of the condition being fulfilled, •
and of the debt so springing 'into actual existence, passes to his heres ;
if the conditional promise had no effect until condicio existit there could
be nothing to pass to the heir at all, cf. Tit. 19. 25 inf. It was otherwise
with legacies, on account of their strictly personal nature : unless the
condition were fulfilled before the legatee's decease the latter's heir was
not benefited, Dig. 36. 2. 5. pr. and 2, Cod. 6. 51. 7; cf. note on Bk. ii.
20. 20 supr. (2) The person who will be bound to an act or forbearance
on the fulfilment of the condition is unable by any act of his own to
escape his possible liability in the future : pro tanto he is bound already.
This may be illustrated by Dig. 17. 2. 27 'si (socius) sub condicione
promiserat et distracta societate condicio extitit, ex communi solvendum .
est,' Dig. 45. I. 78. pr. 'si filiusfamilias sub condicione stipulatus eman-
cipatus fuerit, deinde extiterit condicio, patri actio competit ; ' cf. Dig. 20.
■• 13- 5 ; 45- 3- 26. (3) Even more direct is Dig. 44. 7. 42. pr. *is, cui sub
condicione legatum est, pendente condicione non est creditor, sed tunc
cum extiterit condicio, quamvis eum, qui stipulatus est sub condicione,
placet etiam pendente condicione creditor em esse^ Dig. 12. 6. 16, however,
shows that the language here is unguarded, and that until the condition
is fulfilled there was no real obligatio, even naturalis, for if payment were .
made pendente condicione the money could be recovered by condictio
indebiti: cf. Dig. ib. 18; ib. 44; ib. 56. Thus the legal position of a
promisee sub condicione is difficult to describe ; there is as yet no obli-
gation, and yet he is not absolutely without right ; the effect of the
promise until the condition is fulfilled is only, as Fitting calls it, 'pre-
liminary' {Varwirkung).

4o6 JNSTITUTIONUM LIBRI QUATTUOR. [Lib. IlT.

5 contigerit. Loca etiam inseri stipulationi solent, vduti * Car-
thagine dare spondes ? ' quae stipulatio licet pure fieri vide-
atur, tamen re ipsa habet tempus iniectum, quo promissor
utatur ad pecuniam Carthagine dandam. et ideo si quis ita
Romae stipuletur 'hodie Carthagine dare spondes?' inutilis

6 erit stipulatio, cum impossibilis sit repromtssio. Condi*
ciones, quae ad praeteritum vel ad praesens tempus refe-
runtur, aut statim infirmant obligationem aut omnino non
differunt : vduti * si Titius consul fuit * vel * si Maevius vivit,
dare spondes ? ' nam si ea ita non sunt, nihil valet stipulatio :
sin autem ita se habent, statim vakt. quae enim per rerum
naturam certa sunt, non morantur obligationem, licet apud
nos incerta sint.

7 Non solum res in 4Stipulatum dedud possunt, sed etiam

§ 6. An obligation may possibly be performable only in one place, as
happens often in connection with immoveable property. In some cases
again (as in the text) the place at which performance should be made is
fixed, either expressly or by implication, by the parties. If this is so,
the debtor is neither bound nor entitled to perform elsewhere, though, if
the action by which the obligation was pursued was bonae fidei (or even
stricti iuris, if demanding a facere) the creditor might sue elsewhere, the
advantage or disadvantage accruing to the defendant being taken into
account in fixing the damages. When the obligation was to convey
(dare) a definite object or quantitas at a definite place, this could not be
done until after the introduction of the praetorian arbitraria actio ' de eo
quod certo loco dari oportet,* Bk. iv. 6. 31 and 33 inf. In all other cases
(i.e. where no place was £xed for the performance), the debtor was
entitled to perform wherever he found the creditor, unless the place was
bona fide inconvenient, Dig. 46. 3. 39, and was bound to perform at any
place in which, should he refuse, the creditor actually obtained a judg-
ment against him. The only exceptions to this are (i) that an heir
cannot be compelled to pay legacies elsewhere than where the greater
part of the inheritance is, Dig. 5. i. 50. pr., (3) that where a man has to
deliver a specific thing or quantity, he cannot be compelled to do this
elsewhere than where the thing or quantity actually is, unless the creditor
will take the risk and pay the cost of removal, Dig. 5. i. 38.

§ 6. Where a condition is really satisfied, though upon this point there
may be a subjective uncertainty— e. g. where A, not knowing that Titius
has been consul, promises ten aurei if such is the case, the obligation is
not really conditional, but absolute ; hence legacies subject to such
apparent conditions devolved on the heir of the legatee if the latter out-
lived the testator.

§ 7. Cf. Dig. 45. I. 2. pr. ' stipulationum quaedam in dando, quaedam

Tit. 16.] DE DUO BUS RE IS STIPULANDI, ETC 407

facta : ut si stipulemur fieri aliquid vel non fieri, et in huius-
modi stipulationibus optimum erit poenam subicere, ne
quantitas stipulationis in incerto sit ac necesse sit actori
probare, quid eius intersit. itaque si quis ut fiat aliquid
stipuletur, ita adici poena debet: 'si ita factum non erit,
tum poenae nomine decem aureos dare spondes?' sed si
quaedam fieri, quaedam non fieri una eademque conceptione
stipuletur, clausula erit huiusmodi adicienda : ' si adversus ea
factum erit sive quid ita factum non erit, tunc poenae nomine
decem aureos dare spondes ? '

XVI.

DE DUOBUS REIS STIPULANDI ET PROMITTENDI.

Et stipulandi et promittendi duo pluresve rei fieri possunt.
stipulandi ita, si post omnium interrogationem promissor
respondeat * spondee' ut puta cum duobus separatim stipu-
lantibus ita promissor respondeat * utrique vestrum dare
spondeo:' nam si prius Titio spoponderit, deinde alio in-
terrogante spondeat, alia atque alia erit obligatio nee creduntur

in faciendo consistunt.' The advantage of the course recommended in
the text was twofold. The promisee was saved the trouble of proving
'quid sua intersit' ('plerumque difficilis probatio est, quanti cuiusque
intersit, et ad exiguam summam deducitur' Dig. 46. 5. 11); and if the
contract came to be sued upon, the ground of action was not the promise
to do, but the promise to pay so much in default, so that the remedy,
instead of b^ing the actio ex stipulatu, was until Justinian's time condictio
certi with its penal sponsio of one third of the sum in dispute : * cum quis
non adiecerit poenam . . . incerti agendum esse' Dig. 2. 5. 3. If no
interval was fixed for the performance of an act secured by a penalty, the
latter could be sued for unless the act was performed within a reasonable
time: Mntra quantum autem temporis, nisi detur quod arbiter iusserit,
committatur stipulatio, videndum est, et si quidem dies adiectus non sit,
Celsus scribit libra ii** Digestorum inesse quoddam modicum tempus :
quod ubi praeterierit, poena statim peti potest' Dig. 4. 8. 21. 12. The
amount of the poena had no measure except the will of the parties, and
it might be recovered in full, even though largely exceeding the value of
the act or forbearance stipulated for, Dig. 4. 8. 32. pr. ; 21. 2. 56. In
English law this is different: 8 and 9 Will III. c. 11 ; 4 and 5 Anne,
c 16; 23 and 24 Vict. c. 126; cf. Sir W. R. Anson's Law of Contract
5th ed. p. 262.
Tit XVI. For solidary and correal obligation (with one of the modes

4o8 INSTITUTIONUM LJBRI QUATTUOR. [Lib. III.

duo rei* stipulandi esse, duo pluresve rei promittendi ita
fiunt : * Maevi, quinque aureos dare spondes Sei, eosdem
quinque aureos dare spondes ? * respondeant singuli separatim

1 * spondeo.' Ex huiusmodi obligationibus et stipulantibus
solidum singulis debetur et promittentes sing^Ii in solidum
tenentur. in utraque tamen obligatione una res vertitur : et
vel alter debitum accipiendo vel alter solvendo omnium

2 peremit obligationem et omnes liberat. Ex duobus reis
promittendi alius pure, alius in diem vel sub condicione
obligari potest : nee impedimeoto erit dies aut condicio, quo
minus ab eo quj pure obb'gatus est petatur.

XVII.

DE STIPULATIONE SERVORUM.

Servus ex persona domini ius stipulandi habet. sed he-
reditas in plerisque persooae defuncti vicem sustinet : ideoque
quod servus hereditarius ante aditam hereditatem stipulatur,
adquirit hereditati ac per hoc etiam heredi postea facto
1 adquiritur. Sive autem domino sive sibi sive conservo suo
sive impersonaliter servus stipuletur, domino adquirit. idem
iuris est et in liberis, qui in potestate patris sunt, ex quibus

of creating which latter this Title deals) see Excursus VII at the end of
this Book. The presumption of law was against joint liability, but it
could be rebutted by the order of the stipulations : for if the answer were
made to the same question put by two stipulators successively, there
could not be two obligations, because the first would be invalidated by
the interposition of the second, so that correality or joint liability results
from the principle ' ubi ambigua oratio est, conmiodissimum est id accipi,
quo res, de qua agitur, magis valeat quam pereat ' Dig. 34. 5. I2.

§ 1. The characteristics pointed out in this section do not serve to draw
the line between solidary and correal obligation : see Excursus VII.

Tit. XVII. A slave became personally entitled as promisee in a con-
tract only where he had no master, or where the master was himself the
promisor— here because no one could simultaneously be debtor and cre-
ditor in the same obligation : but in both cases the obligatio was natu-
ralis only, and did not become civilis even by the slave's manumission.
For exceptions to the rule 'hereditas defuncti vicem sustinet' see Dig. 41.
I. 61. I ; 45. 3. 26; 47. 2. 68 ; 47- 4- i. 15-

§ 1. For 'ex quibus causis adquirere possunt' cf. 'si quid ex re patris

Tit. i8.] DE DIVISIONE STIPULATIONUM. 409

causis adquirere possunt. Sed cum factum in stipulatione 2
continebitur, omnimodo persona stipulantis continetur, veluti
si servus stipuletur, ut sibi ire agere liceat : ipse enim tantum
prohiberi non debet, non etiam dominus eius. Servus com- 3
munis stipulando unicuique dominorum pro portione dominii
adquirit, nisi si unius eorum iussu aut nominatim cui eorum
stipulatus est: tunc enim soli ei adquiritur. quod servus
communis stipulatur, si alteri ex dominis adquiri non potest,
solidum alteri adquiritur, veluti si res quam dari stipulatus est
unius domini sit.

XVIII.

DE DIVISIONE STIPULATIONUM.

Stipulationum aliae iudiciales sunt, aliae praetoriae, aliae
conventionales, aliae communes tam praetoriae quam iudiciales.

ei obveniat, . . . hoc parent] adquirat ' Bk. ii. 9. i and notes supr. : note
on Tit 28. pr. inf.

§ 2. By factum here is meant something which is not a right, and
therefore cannot become part of the property ( Vermogen) of the dominus,
e. g. Detention, or the mere personal license to cross land (which is not a
servitude) suggested in the text : * quod dicitur patrem filio utiliter stipu-
lari, quasi sibi ille stipularetur, hoc in his verum est, quae iuris sunt
quaeque adquiri patri sunt : alioquin si factum conferatur in personam
filii, inutilis erit stipulatio, velut ut tenere ei vel ire agere liceat ' Dig. 45.
I. 130; ib. 38.6-8.

§ 3. Cf. Tit. 28. 3 inf. In the time of Gaius (iii. 167 a) it was a ques-
tion between the two schools whether a stipulation made by a slave
* unius domini iussu' enured to that master's sole benefit: the view
adopted by Justinian was that of the Sabinians.

Tit. XVIII. Judicial and praetorian stipulations correspond to some
of the English contracts of record, e. g. recognisances : they are so-called
contracts entered into by one party to a judicial or quasi -judicial pro-
ceeding for the security or protection of the other at the order of the
judge or magistrate. Dr. Hunter observes (Roman Law p. 290) that
their real meaning is the weakness of the executive : Mt is much easier
to get a man to promise not to do some particular thing, than, when it is
done, to acknowledge it to be wrong, or to give compensation.* The
division into judicial, praetorian, and common must have practically be-
come unmeaning after the abolition of the ordo iudiciorum privatorum
and with it of the distinction between magistrate and iudex, ius and
iudicium.

410 INSTITUTJONUM LIBRI QUATTUOR. [Lib. lit.

1 ludiciales sunt dumtaxat, quae a mero iudicis officio pro-
ficiscuntur : veluti de dolo cautio vel de persequendo servo

2 qui in fuga est restituendove pretio. Praetoriae, quae a mero
praetoris officio proficiscuntur, veluti damni infecti vel l^a-
torum* praetorias autem stipulationes sic exaudiri oportet,
ut in his contineantur etiam aedilitiae : nam et hae ab iuris-

3 dictione veniunt. Conventionales sunt, quae ex conventione
utriusque partis concipiuntuf, hoc est neque iussu iudicis
neque iussu praetoris, sed ex conventione contrahentium.
quarum totidem genera sunt, quot paene dixerim rerum

§ L The de dolo cautio seems to have chiefly, if not solely, occurred in
cases where bona fide possessors were sued by the owner: *si post
acceptum iudicium possessor usu hominem cepit, debet eum tradere
eoque nomine de dolo cavere : periculum est enim ne eum vel pigner-
averit vel manumiserit' Dig. 6. 1. 18, ib.45 • its purpose apparently was to
secure the plaintiff against loss arising from possible misdealing with the
property in the past, or even in the future, before it came into his hands.
The cautio de persequendo, etc was employed where a man got posses-
sion of another's slave, who then ran away. Dig. 4. 2. 14. 11, or where a
slave bequeathed by a testator was enabled to decamp by the fault of the
heir, Dig. 30. 47. 2.

§ 2. There is a reference in Gaius iv. 31 to an obsolete procedure on
damnum infectum, which had been superseded by the praetor's provision,
by which any one who apprehended damage to land or a house from the
defective condition of another house or piece of land could require certain
others, having rights over the latter, to enter into the cautio damni infecti,
i.e. an express promise to make compensation for any such damage which
actually occurred : the terms of the Edict are given in Dig. 39. 2. 7. pr.
The right belonged not only to the owner of the threatened tenement, but
also to persons having other real rights over it, or even detention in virtue
of an obligation, Dig. 39. 2. 13, ib. 38. pr., but not to a bona fide pos-
sessor, Dig. ib. II, ib. 13. 9 : the cautio could be exacted from the owner,
bona fide possessor (ib. 13. pr.), and others having iura in alieno solo, but
it would not be granted if the person threatened already had a remedy in
virtue of some relation actually existing between him and the other (e. g.
lessee and lessor. Dig. ib. 32, ib. 13. 6) ; and it was not perpetual, but
remained in force only for the period prescribed by the magistrate. Dig.
ib. 4. pr. If not entered into within the time fixed at the hearing, the
other party could claim to be put in possession of the dangerous tene-
ment by a magisterial decree, in order to examine into its condition and
take measures of precaution, though without power to exclude his oppo-
nent : and if, after the lapse of another interval, the latter had not given
the required promise, his right passed by a second decree to the com-
pbinant, or, if inalienable, was extinguished.

Tit. 19.] DE INUTILIB US STIPULATION/BUS. 41 1

contrahendarum. Communes sunt stipulationes veluti rem 4
salvam fore pupilli: nam et praetor lubet rem salvam fore
pupillo caveri et interdum iudex, si aliter expediri haec res
non potest : vel de rato stipulatio.

XIX.

DE INUTILIBUS STIPULATfONIBUS.

Omnis res, quae dominio nostro subicitur, in stipulationem
deduci potest, sive ilia mobilis sive soli sit. At si quis rem, 1
quae in rerum natura non est aut esse non potest, dari
stipulatus fuerit, veluti Stichum, qui mortuus sit, quem vivere
credebat, aut hippocentaurum, qui esse non possit, inutilis erit

The cautio legatonim (servandorum causa) was employed when a
legacy was given under a condition or ex die, or was disputed : the
legatee being entitled to security with sureties for its future payment, if
it actually became due ; in default he could claim to be put in possession,
Dig. ^6, 4. 5. pr. ; ib. 5. ib. 16. Through his charge of the markets,
streets, public buildings, etc. (p. 23 supr.) the aedile had frequent occasion
to impose duties by the means described in this Title ; e. g. the stipula-
tiones dupli, described on Tit. 23. 3 inf., originated, according to Theo-
philus, in his Edict.

§ 4. For the stipulatio rem salvam fore pupilli see Bk. i. 24. pr. and
note supr. That de rato (or more fully, ratam rem dominum habiturum)
was employed when suits were conducted by agents, Bk. iv. 11. pr. inf.

Tit. XIX. The contents of this Title are heterogeneous and badly
arranged. Some of the sections, though professedly dealing with the
grounds on which stipulations are invalid, relate to causes affecting all
obligations (e.g. i. 2. 6. 13) : in fact only §§ 5. 7. 12. 17 and 18 apply to
stipulations exclusively : the rest form a disconnected account of some of
the causes which invalidate contracts in their inception, especially impos-
sibility of performance, §§ i and 2 : impossible conditions, § 11, and dis-
regard of the general principle that a contract can impose duties and
confer rights only on those who are parties to it, §§ 3. 4. 19-21.

By 'res quae dominio nostro subiciuntur' are meant 'res in patrimo-
nio nostro : ' 9rpay/ia, h rfj ^/ucrcp^ vjroTrinTtiv dvporai b^fnrortiff, Theoph.

§ L The ground of nullity in this and the following section is the
impossibility of performing the act which is the object of the obligation.
An act or forbearance either may be impossible ab initio, i. e. at the time
at which the contract was made ; or it may become impossible subse-
quently and ex post facto. Original impossibility again may be either ab-
solute, as where no one can perform the act (e.g. this section), or relative,
as where, though the particular promisor cannot perform it, another can.

412 INSTITUTIONUM UBRl QUATTUOR. [Lib. III.

2 stipulatio. Idem iuris est, si rem sacram aut religiosam,
quam humani iuris esse credebat, vel publicam, quae usibus
populi perpetuo exposita sit, ut forum vel theatrum, vel
liberum hominem, quern servum esse credebat, vel cuius
commcrcium non habuit, vel rem suam dari quis stipuletur.
nee in pendenti erit stipulatio ob id, quod publica res in
privatum deduci et ex libero servus fieri potest et com-
mercium adipisci stipulator potest et res stipulatoris esse
desinere potest : sed protinus inutilis est. item contra licet
initio utiliter res in stipulatum deducta sit, si postea in earum
qua causa, de quibus supra dictum est, sine facto promissoris
devenerit : extinguitur stipulatio. ac ne statim ab initio
talis stipulatio valebit ' Lucium Titium cum servus erit dare
spondes ? ' et similia : quia natura sui dominio nostro exempta

A promise to perform an act which is absolutely impossible ab initio is
void : it confers no rights and imposes no duties (for ^ impossibilium nulla
obligatio est ' Dig. 50. 17. 185), unless the promisee was ignorant, through
no fault of his own, of the impossibility, and through having acted on the
contract as though actually subsisting cannot be restored in statum quo
ante : in this case the promisor must indemnify him for any loss which
he has sustained, Dig. 18. 4. 8 : cf. Dig. 11. 7. 8. l. Disappearance of
the impossibility validates the contract only if^ so to speak, it is natural,
not accidental, § 2 inf.. Dig. 45. I. 83. 5. If the original impossibility is
relative only, the validity of the contract is in no way affected : * multum
interest, utrum ego stipuler rem, cuius commercium habere non possum,
an quis promittat : si stipuler . . . inutilem esse stipulationem placet : si
quis promittat . . . ipsi nocere, non mihi' Dig. 45. i. 34.

Where the impossibility arises ex post facto, its absoluteness or rela-
tivity is immaterial : the only question is whether it is due or not to the
fault of the debtor, provided of course that it is a fault for which, in the
particular relation, he is answerable (Excursus VI inf.); if not, he is
released (sine facto promissoris, § 2 inf.) : cf. Tit. 14. 2 supr.. Dig. 45. i.
37 'si certos nummos, puta qui in area sint, stipulatus sim, et hi sine
culpa promissoris perierint, nihil nobis debetur ; ' though this exemption
from performance is not absolute, but only coextensive with the impossi-
bility, Tit. 23. 3 inf. If, on the contrary, the impossibility is due to the
promisor's fault, he is bound to compensate the promisee, though he is
entitled to a transfer of the latter*s rights of action against other persons
in respect of the object: *si fuUo aut sarcinator vestimenta perdideiit
eoque nomine domino satisfecerit, necesse est domino vindicationem
eorum et condictionem cedere' Dig. 19. 2. 25. 8.

§ 2. Contracts other than stipulation in respect of (e.g.) a free man,
whom the party believed to be a slave, were valid : see on Tit. 23. 5 inf.
By ' cuius commercium non habuerit ' seems to be meant loss of commer^

Tit. 19.] DE I NUT I LI BUS STIPULATIONIBUS. 413

in obligationem deduci nullo modo possunt. Si quis alium 3
daturum facturumve quid spoponderit, non obligabitur, veluti
si spondeat Titium quinque aureos daturum. quodsi effecturum
se, ut Titius daret, spoponderit, obligatur. Si quis alii, quam 4
cuius iuri subiectus sit, stipuletur, nihil agit. plane solutio
etiam in extranei personam conferri potest (veluti si quis ita
stipuletur * mihi aut Seio dare spondes ? *), ut obligatio quidem

cium by the stipulator : cf. inf. * commercium adipisci stipulator.' For the
ground of nullity of such a condition as ' si ex libero servus fiat,' already
stated on § I, cf. Dig. 45. i. 83. 5 'ut ne haec quidem stipulatio de
homine libero probanda sit, ilium cum servus erit dare spondes ? . . . quia
ea duntaxat quae natura sua possibilia sunt deducuntur in obligationem,
. . . et casum adversamque fortunam spectari hominis Jiberi neque civile
neque naturale est,* Dig. 50. 17. 29 'quod initio vitiosum est, non potest
tractu temporis convalescere.' A stipulation for conveyance of res sua
which the stipulator believed to be aliena was void because Md quod
alicuius est ei dari non potest : ' to make a man owner (dare) of what
was already his own was an absolute impossibility, Gaius iii. 99.

§ 3. A promise by A that B shall do or forbear as a rule imposes no
obligation on either A or B : but

(i) A will be bound (a) if his promise is secured by a poena, § 21 inf.,
Dig. 45. 1. 38. 2 : (b) if he promises either expressly (as is said in the text)
or impliedly to get B to do the act : for the readiness with which such a
promise would be implied cf. Dig. 45. i. 81. pr. 'quotiens quis alium sisti
(shall appear in court) promittit nee adicit poenam .... quaeritur an
committatur stipulatio : et Celsus ait, etsi non est huic stipulationi additum
'' nisi steterit, poenam dari," in id, quanti interest sisti, contineri . . nam
qui alium sisti promittit, promittit id se acturum, ut stet.' In both cases
A really promises to do something himself.

(2) B will be bound (a) if A is his messenger, intermediary, or agent :
see Excursus IX at the end of this Book. If A acts as his negotiorum
gestor (unauthorized agent) and B refuses to ratify, A is answerable for
loss accruing to the promisee only if the latter believed him to be author-
ized ; (b) if he is A's heir : for this see § 13 and notes inf.

Sometimes, however, a person incurred liability under a contract in
which he was not directly a party, and was not even so much as named :
in particular (a) the paterfamilias or dominus on certain contracts of his
son or slave, Bk. iv. 7 inf. ; {p) the principal on contracts made for him by
his agent, and (c) the pupil on reaching puberty was suable by actio utilis
on contracts made in relation to his affairs by his guardian : ' si im-
puberis nomine tutor vendiderit, evictione secuta Papinianus .... ait
dari in eum cuius tutela gesta sit utilem actionem, sed adicit in id demum,
quod rationibus eius accepto latum est ' Dig. 21. 2. 4. i : cf. Dig. 26-
7. 12. I.

§ 4. A promise by A to B to do something for C as a rule (unless B is

414 INSTITUTIONVM LIBRI QUATTUOR. [Lib. III.

stipulator! adquiratur, solvi tamen Seio etiam invito eo recte
possit, ut liberatio ipso iure contingat, sed ille adversus Seium
habeat mandati actionem, quod si quis sibi et alii, cuius iuri
subiectus non sit, decern dari aureos stipulatus est, valebit
quidem stipulatio: sed utrum totum debetur quod in stipu*
latione deductum est, an vero pars dimidia, dubitatum est :
sed placet non plus quam partem dimidiam ei adquiri. ei
qui tuo iuri subiectus est si stipulatus sis, tibi adquiris, quia
vox tua tamquam filii sit, sicuti filii vox tamquam tua in-

C*8 filiusfamilias or slave) confers no rights on either B or C ; not on B,
because he has no interest, the promise not being to do something for him,
' inventae sunt enim huiusmodi obligationes ad hoc ut unusquisque sibi
adquirat quod sua interest,' § 19 inf. ; and not on C, because he is no
party to the contract But

(i) B will acquire a right under the promise {a) if by the performance
to C he himself obtains a benefit, % so inf., and this is the reason why
the pater or dominus is entitled under a promise made to him of per-
formance to his filiusfamilias or slave ; the limits to the right are marked
by the passage cited from Dig. 45. i. 131. on Tit. 17. 2 supr. : cf. Cod. 8.
39* 3 > (^) i^ l^c bas stipulated for a poena in default of performance,
§ 19 inf.

(2) C will acquire a right under the promise not only, as is said here,
if he is the promisee's dominus or pater, but also in a number of other
cases, of which the following are the most important : (a) if the promisee
is merely his messenger or intermediary (but not agent), and the contract
is real or consensual (i. e.not a stipulation), Dig. 2. 14. 2. pr. : 13. 5. 14. 3 ;
(b) if the transaction is a mutuum given, or an indebitum paid, by B in
C's name C can bring the condictio in person, Dig. 12. i. 2. 4 ; (^) a pupil
could sue by actio utilis on a constitutum made by his guardian in bis
name, and plead the exceptio doli if sued by his creditor with whom the
guardian had made a pactum de non petendo on his behalf, Dig. 2. 14. 15 ;
ib. 28. I ; {d) where performance was promised to a man and his heir :
'suae personae adiungere quis heredis personam potest' Dig. 45. i. 38^
14, though this is in reality no exception to the general rule. But if A
promised B to do so and so for his (B's) heir (and not for himself) the
promise was void, Gaius iii. 158 ; this was altered by Justinian, Cod. 8. 38.
II ; cf. § 13 inf. (e) If a gift were made by B to A on condition of its
transfer to C, Cod. 8. 53. 3. (/*) If in settling a dos on a woman its re*
storation to her or her descendants was stipulated for. Dig. 24. 3. 45, Cod.
5. 14. 7. (g) If property was deposited with or lent to A by B on condition
of its being given up to C, Cod. 3. 42. 8.

Sometimes, however, a person acquired rights under a contract in which
he was not directly a party, and was not even so much as named : in par-
ticular (a) where the promisee was a slave or filiusfamilias : see on Tit.

Tin 19J DE INUTILIBUS STIPULATION/BUS. 415

tellegitur in his rebus quae tibi adqutri possunt. Praeterea 5
inutilis est stipulatio, si quis ad ea quae interrogatus erit non
responderit, veluti si decern aureos a te dari stipuletur, tu
quinque promittas, vel contra: aut si ille pure stipuletur,
tu sub condicione promittas, vel contra, si modo scilicet id
exprimas, id est si cui sub condicione vel in diem stipulanti
tu respondeas : * praesenti die spondeo.' nam si hoc solum
respondeas * promitto,' breviter videris in eandem diem aut
condicionem spopondisse : nee enim necesse est in respondendo

17. I. supr. ; (b) where the contract was made by a guardian with re-
ference to his pupil's property the latter could sue by actio utilis. Dig. 12.
I. 26 ; (c) where the right of the actual promisee would be deprived of
value unless, if necessary, the third person is allowed to appeal to the
contract : * cum alio conventio facta prodest, sed tunc demum, cum per
eum, cui exceptio datur, principaliter ei, qui pactus est, proficiat ' Dig. 2.
14. 23 ; for an illustration see what is said as to the pactum de non
petendo concluded by one of two or more correi debendi in Excursus VII
inf.

Wher^ a promise is made to me of performance to me or Seius, the
latter is said to be ' solutionis causa adiectus ; ' as Justinian says, the
promisor is entitled to release himself by performance to him, and of
this right I cannot deprive him ; but as there is no obligatio between him
and the promisor he cannot compel performance, or enter into any
disposition with the promisor affecting it, such as novatio, acceptilatio, or
compensatio.

But if a promise is made to me of performance to me and Seius, Seius
acquires no right whatever ; the only question being what right I acquire
myself. The Sabinians had held that I could claim the whole of what
had been promised ; the view confirmed by Justinian was that of the other
school, Gains iii. 103. Mr. Poste, referring to Dig. 18. 1.64, remarks that
the Sabinian rule was retained in formless contracts ; it would perhaps
, be more correct for * formless ' to substitute ' giving rise to bilateral
obligation.'

Conversely, if A promises that he or B will do so and so (he not being
B's agent), he is bound to do the whole ; if that he and B will do it, he is
liable only in a moiety, Nov. 115. 2.

§ 6. The statement of the rule in the text, which is taken from Gaius
iii. 102, can hardly stand in the face of passages in the Digest in which the
contrary doctrine is emphatically laid down by other leading jurists, viz.
Ulpian, ' si stipulanti mihi decem tu viginti respondeas, non esse contrac-
tam obligationem nisi in decem constat ; ex contrario si me viginti inter-
rogante tu decem respondeas, obligatio nisi in decem non erit contracta
.... manifestissimum est viginti et decem inesse' Dig. 45. i. i. 4. So
Paulus in Dig. 50. 17. no ; 45. i. 83. 3, and Pomponius, ' si ita stipulatus
fuero, decem aut quinque dari spondes, quinque debentur ; et si ita, Kalen*

4i6 INSTITUTIONUAf LlBRl QUATTUOR. [Lib. III.

6 eadem omnia repeti, quae stipulator expresserit Item inu-
tilis est stipulatio, si ab eo stipuleris, qui iuri tuo subiectus
est, vel si is a te stipuletur. sed servus quidem non solum
domino suo obiigari non potest, sed ne alii quidem uUi : filii

7 vero familias aliis obiigari possunt. Mutum neque stipulari
neque promittere posse palam est. quod et in surdo receptum
est: quia et is qui stipulatur verba promittentis et is qui
promittit verba stipulantis audire debet, unde apparet non
de eo nos loqui qui tardius exaudit, sed de eo qui omnino non

8 exaudit. Furiosus nullum negotium gerere potest, quia non

dis lanuariis vel Februariis dari spcndes, perinde est quasi Kalendis Febru-
arils stipulatus sim ' Dig. 45. i. 12.

§ 6. Gaius says (iii. 104) that a person in mancipio resembled a slave in
being unable to incur an obligation to any one. All that is meant by the
text is that between domestic superior and inferior there could be no dvilis
obligatio ; but if a pater stipulated from his son, or a master from his slave,
the son or slave was bound ' naturally ; ' ' patre a filio vel domino a servo
stipulato fideiussor accept us tenetur* Dig. 46. i. 56. i ; cf.Tit.3o. i ii^. ; in the
converse case it seems from Dig. loc cit. that no obligation of any sort
resulted. Contracts made by a filiusfamilias with other persons than his
pater bound him civiliter always, 'et ob id agi cum eo tanquam cum patre-
familias potest ' Dig. 44. 7. 39 ; but a slave was bound only naturaliter by
contracts even with extranei, and the obligatio incurred by an extraneus
was also, so far as the slave went, naturalis only, though the dominus
could sue upon it : 'ex contractibus [servi] civiliter non obligantur, sed
naturaliter et obligantur et obligant' Dig. 44. 7. 14: 45. i. 1. pr. Civil
obligation between paterfamilias and filius seems to have been prevented
by the tatter's want of proprietary right ; when the incapacity was partly
removed, the rule was pro tanto given up, and in respect of peculium cas-
trense there could be civil obligation and consequently litigation between
them : ' lis nulla nobis esse potest cum eo quern in potestate habemns,
nisi ex castrensi peculio' Dig. 5. i. 4 ; cf. Dig. 18. i. 2. pr. ; 47. 2. 52. 4-6.
In respect of peculium adventitium this relaxation is not recognised in the
authorities.

§ 8. The incapacity of furiosus to contract is in reality based on in-
capacity of willing, or of action entailing legal consequences, rather than
on defect of intelligence : ' furiosum, sive stipuletur, sive promittat, nihil
agere natura manifestum est. Huic proximus est, qui eius aetatis est ut
nondum intellegat, quid agatur, sed quod ad hunc benignius acceptum est,
nam qui loqui potest, creditur et stipulari et promittere posse ' Dig. 44. 7.
I. 12 and 13, 'in negotiis contrahendis alia causa habita est furiosorum,
alia eorum, qui fari possunt, quamvis actum rei non intelligerent : nam
furiosus nullum negotium contrahere potest, pupillus omnia tutore auctore
agere potest' Dig. 50. 17. 5. Dispositions made by a furiosus in a lucid

Tit. 19.] DE INUTILIBUS STIPULATIONIBUS. 417

intellegit quid agit. Pupillus omne negotium recte gerit : ut 9
tamen, sicubi tutoris auctoritas necessaria sit, adhibeatur tutor,
veluti si ipse obligetur : nam alium sibi obligare etiam sine
tutoris auctoritate potest. Sed quod diximus de pupillis, 10
utique de his verum est, qui iam aliquem intellectum habent :
nam infans et qui infanti proximus est non multum a furioso
distant, quia huius aetatis pupilli nullum intellectum habent :
sed in proximis infanti propter utilitatem eorum benignior
iuris interpretatio facta est, ut idem iuris habeant, quod
pubertati proximi. sed qui in parentis potestate est impubes,
nee auctore quidem patre obligatur. Si impossibilis condicio 11

moment were, however, completely valid and binding. Cod. 5. 70. 6 ; of.
Bk. ii. 12, I supr.

§ 10. Infantes are children under seven years of age : ^ si infanti, id
est minori septem annis ' Cod. 6. 30. 18. pr., ' prima aetas infantia est . . .
quae porrigitur in septem annis' Isidor. orig. 11. 2. Pubertas was
fourteen in males, twelve in females, Bk. i. 22. pr. supr. ; but to the
question when an impubes ceased to be infanti proximus, and when he
began to be pubertati proximus, no clear answer is to be found in the
texts. Savigny rejects the view of those who would decide this by
dividing the seven (or five) years immediately succeeding infantia into
two equal portions on the ground that, on the clear meaning of the
terms, there must be an interval in every child's life when he is neither
infantiae nor pubertati proximus, and inclines to the opinion that children
would be infantiae proximi during the year next after they ceased to
be infantes, and pubertati proximi during that immediately preceding
pubertas.

It would seem that originally a pupillus could perform no legal act with-
out bis guardian's auctoritas. The inconvenience which this entailed
under the old law, which would not permit its solemn dispositions, man-
cipatio, in iure cessio, stipulatio, etc. to be made by agents, led to a relaxa-
tion of the rule so far as to allow an impubes who was pubertati. proximus
to act for himself in all transactions whereby he could not be pecuniarily
prejudiced (Bk. i. 21. pr. and notes supr.) ; and eventually by the 'benig-
nior iuris interpretatio ' referred to in the text the same privilege was ex-
tended to all pupilli after attaining their seventh year. Consequently, any
pupillus above that age could perform any and every legal act with his
guardian's auctoritas : without it he could only ' meliorem suam condici-
onem facere,'and so could be promisee, but not promisor, in a stipulation:
bilateral contracts which he entered into the guardian could either ratify
or repudiate, subject to what has been already said on Bk. i. 21. pr. For
the liability of an impubes on delict see on Bk. iv. 1. 18 in£

§ IL For the effect of an impossible condition on testamentary disposi-

Ee

4i8 INSTITUTIONUM LIBRI QUATTUOR. [Lib. Iir.

obligationibus adiciatur, nihil valet stipulatio. impossibilis
autem condicio habetur, cui natura impedimento est, quo
minus existat, veluti si quis ita dixerit: 'si digito caelum
attigero, dare spondes ? ' at si ita stipuletur, * si digito caelum
non attigero, dare spondes ? ' pure facta obligatio intell^itur

12 ideoque statim petere potest. Item verborum obligatio inter
absentes concepta inutilis est. sed cum hoc materiam litium
contentiosis hominibus praestabat, forte post tempus tales
all^ationes opponentibus et non praesentes esse vel se vel
adversarios suos contendentibus : ideo nostra constitutio
propter celeritatem dirimendarum litium introducta est, quam
ad Caesareenses advocatos scripsimus, per quam disposuimus
tales scripturas, quae praesto esse partes indicant, omnimodo
esse credendas, nisi ipse, qui talibus utitur improbis all^a-
tionibus, manifestissimis probationibus vel per scripturam vel
per testes idoneos approbaverit in ipso toto die quo con-
ficiebatur instrumentum sese vel adversarium suum in aliis

13 locis esse. Post mortem suam dari sibi nemo stipulari po-
terat, non magis quam post eius mortem a quo stipulabatun
ac ne is, qui in alicuius potestate est, post mortem eius
stipulari poterat, quia patris vel domini voce loqui videtur.
sed et si quis ita stipuletur, * pridie quam moriar ' vel * pridie
quam morieris dari ? ' inutilis erat stipulatio. sed cum, ut
iam dictum est, ex consensu contrahentium stipulationes
valent, placuit nobis etiam in hunc iuris articulum neces-

tions see on Bk. ii. 14. 10 supr. A condition is impossible (i) which
cannot and never could have been fulfilled, quia natura impedimento est
(absolute physical impossibility), or which contemplates the non-occur-
rence of the necessary, e. g. si nunquam moriar ; or (2) which might have
been fulfilled under other circumstances, but now cannot, for the same
reason (relative physical impossibility), or (3) the fulfilment of which is
impossible not by nature but by law (' ubi omnino condicio iure impleri
non potest vel id &cere ei non liceat, nuUius momenti fore stipulationem,
proinde ac si ea condicio, quae natura impossibilis est, inserta esset ' Dig.
45. 1. 137. 6), or by positive morality, § 24 inf. A stipulation was regarded
as ' pure facta ' not only if the condition was necessary by nature (e.g. si
digito caelum non attigero), but also if it was necessary in law, Dig. 28.
7. 20. pr.

§ 12. See note on Tit. 15. i supr. The constitution referred to is in
Cod. 8. 38. 14.

§ 18. A stipulation for conveyance to one after one's death is in effect

Tit. 19.] DE INUTILIBUS STIPULATIONIBUS. 419

sariam inducere emendationem, ut, sive post mortem sive
pridie quam morietur stipulator sive promissor stipulatio
concepta est, valeat stipulatio. Item si quis ita stipulatus 14
erat : ' si navis ex Asia venerit, hodie dare spondes ? ' inutilis
erat stipulatio, quia praepostere concepta est, sed cum Leo
inclitae recordationis in dotibus eandem stipulationem quae
praepostera nuncupatur non esse reiciendam existimavit,
nobis placuit et huic perfectum robur accommodare, ut non
solum in dotibus, sed etiam in omnibus valeat huiusmodi
conceptio stipulationis. Ita autem concepta stipulatio, veluti 15
si Titius dicat * cum moriar, dare spondes ? ' vel * cum mo-

one in favour of one's heir, who is no party to the contract, and for that
reason was held invalid ; see references on § 4 supr. Justinian's change
enabled the obligatio and actio ^ a persona heredis incipere ' Cod. 4. 1 1 ;
hence if the deceased stipulated for payment to one of his heirs only, that
one alone was benefited ; which previously had not been always the case
even where he had stipulated for himself and the particular heir, which
was perfectly allowable (see note last referred to), * quod dari stipulemur,
non posse per nos uni ex heredibus adquiri, sed necesse est, omnibus
adquiri : at cum quid fieri stipulemur, etiam unius personam recte com-
prehend!' Dig. 45. I. 137. 8.

The repugnance to allowing an obligation * a persona heredis incipere,'
Gaius iii. 100 (as where A promises B something after his (A's) death) was
perhaps partially due, as is suggested by Ihering, to a desire to prevent
evasions of such statutes as the leges Falcidia, lutia, and Papia Poppaea ;
see Mr. Poste's note on the passage of Gaius referred to.

§ 14. By Justinian's enactment, Cod. 6. 23. 25, the promise in this so-
called praepostera stipulatio became binding at once, but could not be sued
upon until after the fulfilment of the condition : ^ reprehensionem quam
novella constitutio (sc. Leonis) in dotalibus instrumentis sustulisse nosci-
tur, in aliis quoque omnibus tarn contractibus quam testamentis tollimus,
ut tali exceptione cessante et stipulatio et alii contractus et testatoris
voluntas indubitate valeat, exactione videlicet post condicionem vel diem
competente.' It is difficult to say whether imder this enactment a pro-
misor who paid before the fulfilment of the condition could recover by
condictio indebiti after the condition had failed ; see on Tit 1 5. 4 supr.

§ 15. The reason why a stipulation in the form * cum moriar (or cum
morieris) dari spondes ? ' had been valid under the old law, as stated by
Gaius, iii. 100, was that the obligation was held to entitle the promisee, or
bind the promisor, 'in novissimo vitae suae tempore,' and not 'a persona
heredis incipere.' One might have thought that the reason why one in
the form * pridie quam moriar' was void (*quia non potest aliter intellegi
pridie quam aliquis morietur quam si mors secuta sit ' Gaius 1. c.) would
have applied equally well here : Gaius himself was sensible of the un-

E e 2

420 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IIF.

16 rieris/ et apud vetcres utilis erat et nunc valet. Item post

17 mortem alterius recte stipulamur. Si scriptum fuerit in
instrumento promisisse aliquem, perinde habetur, atque si

18 interrogatione praecedente responsum sit. Quotiens plures
res una stipulatione comprehenduntur, si quidem promissor
simpliciter respondeat * dare spondeo/ propter omnes tenetur :
si vero unam ex his vel quasdam daturum se spoponderit,
obligatio in his pro quibus spoponderit contrahitur. ex
pluribus enim stipulationibus una vel quaedam videntur esse
perfectae : singulas enim res stipulari et ad singulas re-

19 spondere debemus. Alteri stipulari, ut supra dictum est,
nemo potest: inventae sunt enim huiusmodi obligationes ad
hoc, ut unusquisque sibi adquirat quod sua interest : ceterum
si alii detur, nihil interest stipulatoris. plane si quis velit
hoc facere, poenam stipulari conveniet, ut, nisi ita factum
sit, ut comprehensum esset, committetur poenae stipulatio
etiam ei cuius nihil interest: poenam enim cum stipulatur
quis, non illud inspicitur, quid intersit eius, sed quae sit
quantitas in condicione stipulationis. ergo si quis stipuletur
Tilio dari, nihil agit, sed si addiderit de poena * nisi dederis,

20 tot aureos dare spondcs ? ' tunc committitur stipulatio. Sed
et si quis stipuletur alii, cum eius interesset, placuit stipu-
lationem valere. nam si is, qui pupilli tutelam administrare
coeperat, cessit administratione contutori suo et stipulatus est
rem pupilli salvam fore, quoniam interest stipulatoris fieri
quod stipulatus est, cum obligatus futurus esset pupillo, si
male res gesserit, tenet obligatio. ergo et si quis procu-

reasonableness of the distinction, of which he says * non pretiosa ratione
receptum videtur ' ii. 232.

§ 16. A stipulation for performance after the death of a third person is
merely ex die, for which see on Tit. 15.2 supr.

§ 17. This rule is taken from Paulus, sent. rec. 5. 7. 2 : so too Ulpian
says * quod fere novissima parte pactorum ita inseri, rogavit Titius, spo-
pondit Maevius, haec verba non tantum pactionis loco accipiuntur, sed
etiam stipulationis : ideoque ex stipulatu nascitur actio, nisi contrarium
specialiter adprobetur, quod non animo stipulantium hoc factum est, sed
tantum paciscentium ' Dig. 2. 14. 7. 12. For the bearing of § 12 on this
see p. 403.

§ 19. See on § 4 supr.

§ 20. See the note last referred to : and for the liability of tutor hono«

Tit. 19 J DE INUTILIBUS STIPULATIONIBUS. 421

ratori suo dari stipulatus sit, stipulatio vires habebit. et
si creditori suo quod sua interest, ne forte vel poena com-
mittatur vel praedia distrahantur quae pignori data erant,
valet stipulatio. Versa vice qui alium facturum promisit, 21
videtur in ea esse causa, ut non teneatur, nisi poenam ipse
promiserit. Item nemo rem suam futuram in eum casum quo 22
sua fit utiliter stipulatur. Si de alia re stipulator senserit, de 23
alia promissor, perinde nulla contrahitur obligatio, ac si ad
interrogatum responsum non esset, veluti si hominem Stichum
a te stipulatus quis fuerit, tu de Pampbilo senseris," quem

rarius note on l. 24. i supr. A guardian ^qui administrate tutelam non-
dum coeperat ' would be just as liable as one who had for the faults of the
colleague who acted, Dig. 26. 7. 55. pr.

§ 21. See on § 3 supr.

§ 22. For a man to stipulate for conveyance to- him, when he has
become its owner, of property which will be his hereafter, is the same
thing in effect as to stipulate for a res which is already sua, for which see
on § 2 supr.

§ 23. The two chief varieties of mistake have been distinguished on
Bk. ii. 20. 29 supr. To say of contracts that they are void by reason of
mistake in the expression of intention is incorrect : they are void, if at
all, because one states that one intends what one does not really intend,
though it is true that, had it not been for a mistake, this statement would
never have been made. It is not, however, enough to nullify a disposition
that a mistake has caused a declaration which was not really intended :
the expressed intention must have been unintended either altogether, or
at least in an essential portion : and this is the true meaning of the dic-
tum that ' essential error alone is a ground of nullity.' By essential error,
in this sense, is to be understood error as to either {a) the nature of the
legal relation or right to be produced : * non satis autem est dantis esse
nummos et fieri accipientis, ut obligatio nascatur, sed etiam hoc animo
dari et accipi, ut obligatio constituatur ; itaque si quis pecuniam suam
donandi causa dederit mihi, quamquam et donantis fuerit et mea fiat,
tamen non obligabor ei, quia non hoc inter nos actum est ' Dig. 44. 7. 3.
I : or (b) the person in relation to whom the intention is declared, pro-
vided this is material. Dig. 28. 5. 9. pr. : or {c) the thing in relation to
which the intention is declared (e.g. the text before us, and Dig. 28. 5. 9.
I ; 30. 4. pr. ; 45. I. 137. i) : or (d) the properties, i.e. quality, of that
thing; as to which the rule extracted by Savigny in respect of sale from
the cases is that ' the error avoids the contract when the difference in
quality between the thing bought, and that which the purchaser intended
to buy, is such, according to commercial usage, as to put the one in a
different category of merchandise from the other,* System §§ 137, 138 :
for illustrations see Hunter's Roman Law p. 403. Conversely, error as a

4Z2 INSTITUTIONUM UBRI QUATTUOR. [Lib. III.

24 Stichum vocari credideris. Quod turpi ex causa promissum
est, veluti si quis homicidium vel sacril^um se facturum
promittat, non valet.

25 Cum quis sub aliqua ccndicione fuerit stipulatus, licet ante
condicionem decesserit, postea existente condicione heres eius

26 agere potest, idem est et a promissoris parte. Qui hoc anno

rule is non-essential, and does not affect the validity of the disposition,
which relates to the properties or name (Bk. ii. 20. 29 supr., Cod. 6. 23. 4)
of the person to whom the declaration of intention relates, or to the name
or non-essential properties of the thing, Dig. 30. 4. pr. ; 34. 5. 28,
Cod. 6. 37. 7. I.

In contracts mistake frequently leads to one party expressing an inten-
tion which does not agree with that expressed by the other, because the
first supposes the second's real intendon to be diiferent from that which
he has expressed : (e. g. B offers to buy A*s black horse, meaning black
horse a ; A thinks he means black horse /3, and agrees to sell : he thinks
he is agreeing to B's proposal, but in fact he is agreeing to a proposal
which B has never made.) Here there is no consent, for ' non videntur
qui errant consentire' Dig. 50. 17. 116. 2, and an essential element of
contract is 'duorum pluriumve in idem placitum consensus' Dig. 2. 14. i.
2. In such cases the contract is void only if the mistake (i. e. the absence
of consent) is essential in the sense already stated (nature of the relation.
Dig. 12. I. 18 : person, ib. 32 : thing, 18. 1.9. pr. : its properties, ib. 2).

Error in the formation of intention (or in motive) does not necessarily
avoid dispositions. Because one is induced to act by a mistake in
motive, the intention is none the less real ; or, in other words, unessen-
tial error, as a rule, leaves the disposition valid, however strongly it may
have operated as an inducement. The chief exception to this is in
-testamentary dispositions (Bk. ii. 20. 31 and note supr.) : dispositions
inter vivos are invalidated by such mistake only if the latter was known
to the party benefited by them, and this approximates to fraud. If
actual fraud on the other's part produces the mistake, the disposition
is not ipso facto void : but if sued upon the exceptio doli can be pleaded,
or the party deceived can claim by the actio doli to be restored in
statum quo.

§ 24. Cf. Dig. 45. I. 26 *generaliter novimus, turpes stipulationes
nullius esse momenti,' 12. 5. 8 'si ob turpem causam promiseris Titio . . .
si petat, exceptione doli mali summovere eum possis,' Cod. 8. 38. 4 * cum
omnia, quae contra bonos mores vel in pactum vel in stipulationem de-
ducuntur, nullius moment! sint.' Unlawful or immoral conditions were
treated in the same way as those which were impossible : they avoided
contracts : in testamentary dispositions they were taken ' pro non scriptis '
Dig. 28. 7. 9 ; ib. 14.

§ 26. If no time was fixed, either expressly or by implication, for per-
formance, the creditor was entitled to demand it at once : as may be
gathered from § 27, the debtor could claim only so much grace as was

Tit. 19.] DE INUTILIBUS STIPULATIONIBUS. 423

aut hoc mense dari stipulatus sit, nisi omnibus partibus prae-
teritis anni vel mensis non recte petet. Si fundum dari 27

required by the very nature of the act to be performed : cf. Dig. 50. 17.
186. Nor, as a rule, was he entitled to receive a demand of performance
from the creditor, though he did not usually incur the penalties of mora
until such demand (interpellatio) had been made : ' mora fieri intellegitur
non ex re, sed ex persona, id est, si interpellatus opportuno loco non sol-
vent, quod apud iudicem examinabitur. Nam, ut Pomponius scripsit,
difficilis est huius rei definitio' Dig. 22. i. 32. pr. : cf. Paul. sent. rec. 3.
8. 4. Such demand, however, was dispensed with (i) when a time was
fixed for performance in the sense that the debtor must perform then,
not merely that the creditor might not demand performance earlier.
This is the true Roman sense of the maxim ' dies interpellat pro homine,'
not that interpellatio was always unnecessary if a time for performance
was agreed upon, though it is stated that this interpretation has been almost
universally adopted in the practice of the modem civil law. (2) Where
the creditor was a minor, Dig. 31. 87. i. (3) Where the obligation was
to give up jMToperty of which the creditor had been deprived by a delict,
Dig. 13. I. 8. I ; ib. 20 ; 43. 16. 19. (4) In cases of bequests to churches
and charitable foundations. Where demand was impossible owing to the
absence of the debtor or some other cause a declaration might be made
in lieu of it before a judge, Dig. 22. 2. 2.

The mere fact that a debtor has not performed what is due from him
does not, as a rule, affect his^ liability : it does so only in virtue of specific
provision in a contract or will (as where it is agreed that the promisor,
or directed that the heir, shall incur a penalty unless he performs within
a prescribed time) or by law (as where interest is due by statute). In
these exceptional cases the commentators speak of objective mora. But
any debtor or any creditor may become guilty of mora in the narrower
sense (so-called subjective mora) by conduct of his own : mora in that
sense being the wrongful refusal to perform an act, whether mora debi-
toris or solvendi, refusal to perform, or mora creditoris or accipiendi,
refusal to accept performance when due and properly tendered.

Mora debitoris exists only under the following conditions: (i) the
debtor's obligation must be valid and actionable, and he .must not be able
to meet his creditor by any exceptio. (2) The time at which he was
bound to perform must have passed without performance. (3) He must
know that he is bound to perform at the time and in the manner required,
or (as Mr. Poste puts it) a further condition of mora is the absence of a!l
doubt and dispute, at least of all dispute that is not frivolous and vexa-
tious, as to the existence and amount of the debt : ' qui sine dolo malo
ad iudicium provocat, non videtur moram facere' Dig. 50. 17. 63, 'et hie
moram videtur fecisse, qui [dolo, sc] litigare maluit quam restituere * Dig.
45. I. 82. I. (4) He must have no other ground of justification for his
default, this being a question for the court, *■ esse enim banc quaestionem
de bono et aequo' Dig. 45. i. 91. 3 : e.g. impossibility (see on § i supr.).
Whether iimocent insolvency was such a ground is disputed.

424 INSTITUTIONUM LIBRI QUATTUOR, [Lib. III.

stipuleris vel hominem, non poteris continue agere, nisi
tantum spatii praeterierit, quo traditio fieri possit.

XX.

DE FIDEIUSSORIBUS.
Pro eo qui promittit solent alii obligari, qui fideiussores
appellantur, quos homines accipere solent, dum curant, ut

The principal consequences of mora debitoris are as follow :

(l) The debtor must compensate the creditor for the loss of all
advantage which he would have had if the act had been duly performed
(omnis causa), especially fruits, Dig. 22. i. 38. 15, and interest, ib. 32. 2.
If, however, the obligation was to pay certa pecunfa, interest on mora
could not be claimed : see on Tit. 14. pr. supr. (2) After he is once in
mora, the debtor is not released by performance becoming impossible,
even without his fault, Dig. 12. i. 5 ; in other words, even though under
the contract he was liable for culpa lata only, he now becomes answerable
not only for culpa levis but also for casus : and if the object of the obliga-
tion has become less vahiable, he must pay the highest value it has had
since it became due. Dig. 13. 3. 3. (3) In contracts generating bilateral
obligation the one party can withdraw from the compact, if to accept
performance after mora of the other would seriously prejudice him : e. g.
if possession of a farm is not given to the lessee at the date agreed
upon, and in the meanwhile he has taken another. Dig. 19. 2. 24. 4.
(4) If it has been agreed that the creditor's right shall expire within
a certain period, mora debitoris occurring within that period cancels
the agreement. Dig. 34. 3. 3. r and 2.

Mora debitoris was * purged * by extinction of the obligation, by the
creditor's either expressly or tacitly granting him grace, and by the latter
tendering performance to the former, including compensation for all loss
which the mora had entailed upon him.

The chief effects of mora creditoris were (i) that the debtor was released
by performance becoming impossible save through his own dolus or
culpa lata. Dig. 18. 6. 16 and 18 ; in other words, he became answerable
for culpa lata only, even though previously answerable for culpa levis ;
(2) that the creditor has to compensate the debtor for any loss which the
refusal to accept performance properly tendered entails upon him, Dig.
19. I. 3. 4.

Tit. XX. Under the older law suretyship could be contracted ' verbis '
in two other ways, sponsio (spondes ? spondeo) and fidepromissio (fide-
promittis ? fidepromitto) ; but only debts incurred by stipulation could
be guaranteed by either of them. No one could be a sponsor except a
civis, and unless both the parties to the principal contract were cives
also, but these rules did not apply to fidepromissio. Both were obsolete
under Justinian, but the following points in which they differed from fide-
iussio may be noticed ;

Tit. ao.] DE FIDEIUSSORIBUS, 425

diligentius sibi cautum sit. In omnibus autem obllgationibus 1
adsumi possunt, id est sive re sive verbis sive litteris sive
consensu contractae fuerint. ac ne illud quidem interest,
utrum civilis an naturalis sit obligatio, cui adiciatur fideiussor,
adeo quidem, ut pro servo quoque obligetur, sive extraneus
sit qui fideiussorem a servo aceipiat, sive ipse dominus in

(i) The obligation of sponsors and fidepromissors did not descend to
their heirs, Gaius iii. 120. (2) By a lex Publilia of uncertain date a
sponsor who paid the debt could, unless repaid by the principal within
six months, recover twice the amount by actio depensi, Gaius iv. 22.
(3) The lex Furia de sponsu, which is conjectured to have been passed as
early as 345 B.C., but which extended only to Italy, limited the liability of
sponsors and fidepromissors to two years from the date of their contract,
and also (4) where there were two or more of them, divided the liability
among all who were living at the time when the guarantee could be
enforced, so that each could be sued for only an aliquot share, Gaius
iii. 121. (5) The lex Apuleia (390 B.C. ?) extending also to the provinces,
conferred a less but similar boon on sponsors and fidepromissors even
outside Italy, by giving to any one of them who paid the whole debt an
actio pro socio against the rest, by which he could -recover what he had
paid in excess of his fair share, Gaius iii. 1 22. (6) A lex Cicereia pro-
vided that a creditor, on taking sponsors or fidepromissors, should first
state openly what the debt to be guaranteed was, and also the number of
sureties he was going to take ; if this were not done, they could by taking
action within thirty days procure their release. Gaius says that this
enactment had by usage been extended to fideiussors also, but it was
obsolete under Justinian.

Fideiussio, like sponsio and fidepromissio, is a form of what is called
cumulative intercession, which may be defined as a contract between a
creditor and a third person by which the latter takes upon himself the
debtor's obligation without the debtor being himself released. The form
in which fideiussio was contracted was 'idem fide tua esse iubes?
fideiubeo' (Gaius iii. 116), so that the obligation of the principal and
surety was correal : the Greek equivalents are given in § 7 inf.

§ 1. It was not necessary, as might possibly be inferred from the text,
that the guaranteed obligation should arise ex contractu : it might arise
from delict (though this was pertiaps not always so ; * ex delicto magis
putamus teneri* Dig. 46. i. 8. 5), judgment, quasi ex contractu, or any
other source ; but there must be an obligatio, even though it be naturalis
only, and that obligatio must be another person's : so that if the principal
obligation is or becomes void, the fideiussio is or becomes void likewise,
Dig. 46. I. 47. pr., ib. 56. pr. A curious exception to this had existed in
the older forms of suretyship ; for if A promised payment after his own
death, the promise would be void, Tit. 19. 13 supr., but a sponsor or
fidepromissor to it would be liable, though it had been a question whether

426 INSTITUTIONUM LIBRI QUATTUOR. [Lib. HI.

2 id quod sibi naturaliter debetur. Fideiussor non tantum ipse

3 obl^atur, sed etiam heredem obligatum reltnquit. Fideiussor
4et praecedere obligationem et sequi potest Si plures sint

fideiussores, quotquot erunt numero, singuli in solidum te-
nentur. itaque libenim est creditori a quo velit solidum
petere. sed ex epistula divi Hadriani compellitur creditor a
singulis, qui modo solvendo sint litis contestatae tempore,
partes petere. ideoque si quis ex fiddussoribus eo tempore
solvendo non sit, hoc ceteros onerat. sed et si ab uno
fiddussore creditor totum consecutus fuerit, huius solius de-
trimentum erit, si is pro quo fideiussit solvendo non sit : et
sibi imputare debet, cum potuerit adiuvari ex epistula divi
Hadriani et desiderare, ut pro parte in se detur actio.

be would be bound for the sponsio of a slave or peregrinus, which would
be void also, Gaius iii. 119.

§ 3. By saying that a fideiussor ''praecedere obligationem potest' is
meant only that a man may on the occurrence of some event in the
future become fideiussor nolens volens, not that he is bound before the
principal debtor is. If the contract were in the form ' id quod mihi A
debebit, fide tua esse tubes ?' the promisor was not bound at once ; but
if A subsequently became the promisee's debtor, then the fideiussor was
bound; the promise was in effect made subject to a suspensive con-
dition : for the legal position in such cases see on Tit. 15. 4 supr. ;
cf. § 5 inf.

§ 4. Two or more fideiussors never enjoyed the benefits of the leges
Apuleia and Furia ; any one of them was liable to be sued for the whole
debt, and if so sued must pay the whole of it Under the so-called
beneficium divisionis, which was introduced by the epistola Hadriani,
he was enabled, when sued, to demand that if the other fideiussors were
solvent the creditor should divide his claim between him and them, this
demand taking the form of an exceptio to the plaintiffs contention : ' si
contendat fideiussor caeteros solvendo esse, etiam exceptionem ei dan-r
dam, " si non et illi solvendo sint " ' Dig. 46. 1. 28 ; so that on the general
rule, the burden of proving their solvency lay on the defendant. Thus he
was not in so favourable a position as the sponsor and fidepromissor
under the two statutes referred to; for the liability wsLs not divided
between him and the other fideiussors ipso iure, so that he would still
have to pay the whole debt if (under the formulary procedure) he
neglected to get the exceptio inserted in the formula oif the action, or if
all the others were insolvent ; in other words, his liability was affected
by the insolvency of the rest, that of a sponsor or fidepromissor (at any
rate in Italy) was not.

If one fideiussor paid the whole debt, he still had a remedy against the

Tit ao.] DE FIDEIUSSORIBUS. 427

Fideiussores ita obligari non possunt, ut plus debeanf, quam 5
debet is pro quo obligantur : nam eorum obligatio accessio
est principalis obligationis nee plus in accessione esse potest
quam in principali re. at ex diverso, ut minus debeant,
obligari possunt. itaque si reus decem aureos promiserit,
fideiussor in quinque recte obligatur : contra vero non potest
obligari. item si ille pure promiserit, fideiussor sub condicione
promittere potest : contra vero non potest, non solum enim
in quantitate, sed etiam in tempore minus et plus intellegitur.
plus est enim statim aliquid dare, minus est post tempus dare.
Si quid autem fideiussor pro reo solvent, eius reciperandi 6

others which Justinian does not mention ; he could demand, before pay-
ment, that the creditor should assign to him all rights which he had
against them no less than against the principal debtor (beneficium ce-
dendarum actionum). Such demand after payment was useless, for the
debt was then discharged, and the rights of action, being extinguished,
could no longer be assigned ; but if made before payment it had the
effect of preserving them, for 'pretium magis mandatarum actionum
solutum quam actio, quae fuit, perempta videtur' Dig. 46. 3. 76. As
against the principal debtor the cessio carried with it all accessory rights,
such as mortgages.

§ 6. The meaning of plus and minus in this kind of connection may be
illustrated by reference to the doctrine of plus petitio, Gains iv. 53. 54,
Bk. iv. 6. 33 inf, A somewhat complicated case is that where it cannot
be ascertained whether the fideiussor has promised 'more' than the
other until afterwards ; e. g. where the principal promises subject to the
fulfilment of a condition, and the surety promises subject to the fulfilment
of either the same condition or another ; if the common condition is ful-
filled first, he is not bound ' in duriorem causam ;' if the other, he is. It
seems to be the better opinion that the whole promise is void ab initio.

§ 6. Independently of the beneficium cedendarum actionum, a surety
who paid was generally regarded as the agent of the principal debtor,
and could recover from him the amount which he had paid, and all
incidental expenses, by actio mandati (or actio negotiorum gestorum ' si
pro absente fideiusserit' Dig. 17. i. 20. i) ; he could do this even when
as a fact he had not paid at all, if the creditor had given him a release
donandi animo. Dig. 17. i. 10. 13. Where, however, the debt was prac-
tically his own (e.g. Dig. 2. 14. 24 ; 2. 8. 8. i), or he had become surety
with the intention, not of binding the principal, but of doing him a
gratuitous service (Dig. 14. 6. 9. 3 ; 17. i. 6. 2), this ius regressus did not
exist. By Nov. 4. i Justinian gave to fideiussors the so-called beneficium
ordinis or excussionis, entitling the surety to demand that the creditor
should sue the principal debtor before resorting to him, unless the debtor
resided in a different jurisdiction; in which case, unless the surety

4^8 INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

7 causa habet cum eo mandati ludicium. Graece fideiussor
plerumque ita accipitur : if ^fip Trforet jceAet/o), A€ya>, Oikta sive
PavXoyLOi : sed et si ^ly/x^ dixerit, pro eo erit, ac si dixerit A€ya>.

8 In stipulationibus fideiussorum sciendum est generaliter hoc

produced him within a time fixed by the judge, he could be sued
himself.

The modes in which a fideiussor's liability was terminated are
(i) Extinction of the principal debt in any of the modes enumerated in
Tit. 29 and notes in£, Dig. 46. 3. 43 ; 12. 2. 28. i ; 34. 3. 5. pr. It is only
under very exceptional circumstances that the surety remains bound after
the principal obligation has ceased to exist. Even where he himself had
brought about its extinction by rendering its performance impossible, the
jurists at first were unable to admit the continuance of his own liability
ex contractu, though they held him liable to the actio de dolo. Dig. 4. 3.
19 : but later a utilis actio ex stipulatu was allowed in lieu of this, which
eventually became directa : in other words, the continuing liability was .
recognised. So too if the principal debtor died, leaving no successor,
the surety remained bound, Dig. 46. 3. 95. 3. If the creditor was unable
to sue the principal with any effect, because, though the obligatio was
not extinguished, the latter could always repel him by an exceptio, the
surety was usually able to use that exceptio himself, for the reason stated
in Bk. iv. 14. 4 inf. Among the defences of this class which he could
use are exceptio pacti, loc. cit. : 'exceptio iuris iurandi' Dig. 12. 2. 28. i,
and the plea of prescription. The following exceptiones, however, though
open to the debtor, were not also open to the surety : (a) those which
were purely personal to the former. Dig. 44, I. 7. pr. ; e.g. 'beneficii
competent iae ' Dig. loc. cit., 'pacti de non petendo in personam' Dig.
2. 14. 22, 'nisi bonis cesserit' Bk. iv. 14. 4. inf. : the last for the very
reason that ' Is qui alios pro debitore obligat hoc maxime prospicit, ut
cum facultatibus lapsus fuerit debitor, possit ab iis, quos pro eo obiigavit,
suum consequi :' the very end of suretyship would otherwise be defeated.
Similarly, if the principal debtor was a minor, and could plead that
he had been in integrum restitutus, the fideiussor was not benefited
if the creditor had taken him for the express purpose of protecting
himself against this eventuality, Dig. 4. 4. 13. pr. (b) Such excep-
tions as left a naturalis obligatio still subsisting, e.g. that SC^ Mace-
donian!, unless the surety had regressus against the principal debtor,
Dig. 14. 6. 9. 3.

(2) Confusio, or concurrence of the main and accessory liability in the
same person : ' generaliter lulianus ait eum, qui heres extitit ei pro quo
intervenerat, liberari ex causa accessionis et solummodo quasi heredem
rei teneri* Dig. 46. I. 5.

(3) If the principal debtor fraudulently evaded his obligation, or squan-
dered his means, the fideiussor could demand his release. Dig. 17. i. 38.
I, Cod. 4. 35. 10.

§ 8. Cf. Tit. 19. 17 supr.

Tit. ao.] DE FIDEIUSSORIBUS. 429

accipi, ut, quodcumque scriptum sit quasi actum, videatur
etiam actum : ideoque constat, si quis se scripserit fideiussisse,
videri omnia sollemniter acta.

Besides fideiussio, which was a formal contract, the Roman law of Jus-
tinian recognised two other modes in which the relation of suretyship could
be produced : the one a consensual contract (the so-called mandatum
qualificatum, for which see Tit. 26. 5 and notes, inf.), the other a mere pact,
viz. constitutum debiti alieni.

Constitutum is a formless promise to discharge an already subsisting
obligation, whether it be one's own (const debiti sui) or some one's else
(const, debiti alieni) ; Bk. iv. 6. 9. inf. In itself it did not belong to any
recognised dass of contracts, and therefore did not give rise to a civil
obligation : it was made actionable by the praetor, because, according to
Theophilus, the want of a remedy on this class of promises led not only to
fraud but to great hardship : see Hunter's Roman Law p. 386. Usually
the promise was to pay on a day certain ; but if this was not so, the pro-
misor was entitled to ten days' grace. Dig. 13. 5. 21. i.

Constitutum debiti alieni resembles fideiussio in presupposing an actual
even though only 'natural' liability of another person. Dig. 13. 5. i. i ; ib.
6-% ; in the right of two or more constituentes to the beneficium divisionis,
Cod. 4. 18. 3 : in the surety's right to the beneficium ordinis, Nov. 4. i (at
any rate in those cases where his obligation is exactly co-extensive with
that of the principal debtor, and its object is merely the creditor's security),
and as a rule to use such exceptiones of the principal debtor as practically,
though not formally, annihilate the creditor's right against him. But
while the fideiussor is in effect a correus, and the sole end of his liability
is the creditor's security, constitutum was often designed to confer on the
latter further advantages : the obligation was different from that of the
principal debtor, and solidary rather than correal. Hence the constituens
is not prejudiced by the latter's culpa or mora : but, like solidary debtors
in general, he is not necessarily released by extinction of the main debt,
but only by satisfaction of the creditor, so that (e. g.) he remains liable
after the action against the debtor is barred by lapse of time (Dig. 13. 5.
18. i), or even after the latter has paid one of two correal creditors, with
the other of whom he himself made the constitutum. Dig. ib. lo. In
respect of time and place of performance he maybe bound differently, and
even in duriorem causam than the main debtor, ib. 3. 2. Before Justinian
a constitutum could be made in relation only to res fungibiles, and the
action on it was prescribed in a year ; both of these limitations he abol-
ished, and also the old penal wager in the action of half the value in dis-
pute (Gains iv. 171), Cod. 4. 18. i ; so that under his system a constituens
might be bound for a different object of equal value with that for which
the principal debtor was liable ; if it was of greater value, he was not
answerable for the excess.

One of the salient features of the Roman law of suretyship is the prac-
tical incapacity of women to bind themselves by contracts of this kind. It

43© INSTITUTIONUM LIBRI QUATTUOR. [Lib. HI.

XXI.
DE LITTERARUM OBLIGATIONE.

Olim scriptura fiebat obligatio, quae nominibus fieri dice-
batur, quae nomina hodie non sunt in usu. plane si quis

seems to have originated in edicts of Augustus and Claudius, prohibiting
wives from becoming sureties for their husbands, Dig. i6. i. 2. pr. It is
supposed, with considerable probability, that the cause of the more general
enactment, the SC. Velleianum, a.d. 46, was the recklessness with which
women, after Claudius had abolished the tutela legitima of agnates over
them (p* 151 supr.), exercised their newly-found control of their property on
behalf of others. This enacted that no action should lie on contracts of
suretyship entered into by women as promisors ; ' quod ad fideiussiones et
mutui dationes pro aliis pro quibus intercesserint feminae pertinet, tametsi
ante videtur ita ius dictum esse, ne eo nomine ab his petitio neve in eas
actio detur, cum eas virilibus officiis fungi et eius generis obligationibus
obstringi non sit aequum ; arbitrari senatum, recte atque ordine facturos
ad quos de ea re in iure aditum erit, si dederint operam ut in ea re senatus
voluntas servetur' Dig. 16. i. 2. I. The senatusconsult thus related only
to fideiussio and mutuum ; but its principle was extended to all forms of
intercessio, privative as well as cumulative, by responsa of the jurists and
imperial enactments. Dig. loc cit. i. pr., ib. 2. 4. Though it had refused a
remedy on such contracts, it would seem that the usual practice was for
the praetor to grant the action, if applied for, which could then be met by
the exceptio SC^. Velleiani, frequently mentioned in the texts, which could
be pleaded against execution even after judgment had been given. Dig. 14.
6. 1 1. It must not, however, be inferred from this that the woman in-
curred even a ' natural ' obligation to pay the debt ; for if she paid in
ignorance of her right to the exceptio, she could recover by condictio in-
debiti, Dig. 12. 6. 40. pr. Another view as to the history of the matter, in
some degree supported by the terms of the senatusconsult, is that women
had been forbidden to become sureties even by the old civil law, and that
the enactments of the time of Augustus and Claudius are merely evidence
of its evasion through the rapid decay of old Roman manners at the close
of the Republic

There are a number of exceptions from the operation of the senatus-
consult, as e. g. where the woman had been guilty of dolus towards the
creditor, Dig. 16. I. 2. 3 : ib. 30. pr., and where the latter, through no fault
of his own, was not aware that the person ' interceding ' was a woman, ib.
4. pr. : ib. 6 : ib. 1 1 ; where the intercessio was made for valuable con-
sideration, Cod. 4. 29. 23. pr. ; where the creditor was a minor and the
principal debtor insolvent. Dig. 4. 4. 12 : where the obligation guaranteed
was to provide a dos, Cod. 4. 29. 12 and 25 ; and where in order to obtain
the guardianship over her children she had renounced the benefit of the en-
actment (p. 149 supr.).
. Justinian enacted (i) that all intercession by a woman should be abso-

Tit. 33.] DE EMPTIONE ET VENDITIONE. 451

debere se scripserit, quod numeratum ei non est, de pecunia
minime numerata post multum temporis exceptionem op*
ponere non potest : hoc enim saepissime constitutum est
sic fit, ut et hodie, dum queri non potest, scriptura obligetur :
et ex ea nascitur condictio, cessante scilicet verborum obli-
gatione. multum autem tempus in hac exceptione antea
quidem ex principalibus constitutionibus usque ad quin-
quennium procedebat : sed ne creditores diutius possint suis
pecuniis forsitan defraudari, per constitutionem nostram tempus
coartatum est, ut ultra biennii metas huiusmodi exceptio
minime extendatur.

XXII.

DE CONSENSU OBLIGATIONE.

Consensu fiunt obligationes in emptionibus venditionibus,
locationibus conductionibus, societatibus, mandatis. Ideo 1
autem istis modis consensu dicitur obligatio contrahi, quia
neque scriptura neque praesentia omnimodo opus est, ac ne
dari quidquam necesde est, ut substantiam capiat obligatio,
sed sufficit eos qui negotium gerunt consentire. Unde 2
inter absentes quoque talia negotia contrahuntur, veluti per
epistulam aut per nuntium. Item in his contractibus alter 3
alteri obligatur in id, quod alterum alteri ex bono et aequo
praestare oportet, cum alioquin in verborum obligationibus
alius stipuletur, alius promittat.

XXIII.

DE EMPTIONE ET VENDITIONE.
Emptio et venditio contrahitur, simulatque de pretio

lutely void unless expressed in a public document attested by at least three
witnesses, Cod. 4. 29. 23. 2, and that even where this form was observed she
might plead the exceptio ; the exceptions which had previously held were
still recognised, if this form was observed, though its necessity was dis-
pensed with where the intercessio was made for valuable consideration, or
in the matter of a dos, Cod. loc. cit. 24. 25. (2) That all intercession by
a wife on behalf of her husband, with a few exceptions, should be void,
even though the form prescribed in other cases were complied with,
Nov. 134. 8.

Tit. XXI. Upon the subject of literal contract in general see Excursus
VIII, at the end of this Book.
' Tit. XXUL Before Justinian arra or earnest money had been given

43« INSTITUTIONUM UBRI QUATTUOR. [Lib, HI.

cbnvenerit, quamvis nondum pretium numeratum sit ac ne
arra quidem data fuerit. nam quod arrae nomine datur,
argumentum est emptionis et venditionis contractae. sed
haec quidem de emptionibus et venditionibus, quae sine
scriptura consistunt, optinere oportet: nam nihil a nobis in
huiusmodi venditionibus innovatum est. in his autem quae
scriptura conficiuntur non aliter perfectam esse emptionem
et venditionem constituimus, nisi et instrumenta emptionis
fuerint conscripta vel manu propria contrahentium, vel ab
alio quidem scripta, a contrahente autem subscripta et, si
per tabellionem fiunt, nisi et completiones acceperint et
fuerint partibus absoluta. donee enim aliquid ex his deest,
et poenitentiae locus est et potest emptor vel venditor sine
poena recedere ab emptione. ita tamen impune recedere eis
concedimus, nisi iam arrarum nomine aliquid fuerit datum :
hoc etenim subsecuto, sive in scriptis sive sine scriptis venditio
celebrata est, is qui recusat adimplere contractum, si quidem
emptor est, perdit quod dedit, si vero venditor, duplum resti-
tuere compellitur, licet nihil super arris expressum est.
1 Pretium autem constitui oportet : nam nulla emptio sine
pretio esse potest, sed et certum pretium esse debet, alio-

mainly for the purpose of evidence : ' quod saepe arrae nomine datur, non
eo pertinet, quod sine arra conventio nihil proficiat, sed ut evidentius
probari possit convenisse de pretio ' Dig. i8. i. 35. pr., ' quod arrae nomine
datur argumentum et emptionis et venditionis contractae' Gains iii. 139.
By Cod. 4. 21. 17. 2 Justinian made it the measure of a penalty to be paid
(additional, in unwritten contracts of sale, to specific performance or
damages as assessed by the judge) by the party who refused to execute.
Dr. Hunter (Roman Law p. 332) seems clearly to be wrong in supposing
that in a sale which the parties had not agreed to reduce to writing the
defaulter could escape scot free by forfeiting the arra which he had given,
or double that which he had received. He was subject to the ordinary
rule, and was bound from the moment the price was agreed upon to do
what he had promised. The effect of Justinian's other change was that,
where the parties had agreed to reduce the contract to writing, there was
a locus poenitentiae, and therefore no obligatio, until the document had
been formally completed as required in this section, even though the terms
and the price had been settled ; but that if, in such a case, arra had been
given, and either party repudiated, he must, if purchaser, forfeit his arra>
and, if vendor, pay an equivalent sum besides returning it.

§ L The price need not be absolutely fixed : e. g. it was sufficient to
promise 'quantum pretii in area habebo ' Dig. 18. i. 7. u The view con-

Tit. 23.] DE EMPTIONE ET VENDITIONE. 433

quin si ita inter aliquos convenerit, ut, quanti Titius rem
aestimaverit, tanti sit empta: inter veteres satis abundeque
hoc dubitabatur, sive constat venditio sive non. sed nostra
decisio ita hoc constituit, ut, quotiens sic composita sit
venditio 'quanti ille aestimaverit/ sub hac condicione staret
contractus, ut, si quidem ipse qui nominatus est pretium
definierit, omnimodo secundum eius aestimationem et pre-
tium persolvatur et res tradatur, ut venditio ad effectum
perducatur, emptore quidem ex empto actione, venditore
autem ex vendito agente. sin autem ille qui nominatus est
vel noluerit vel non potuerit pretium definire, tunc pro nihilo
esse venditionem quasi nullo pretio statuto. quod ius cum in
venditionibus nobis placuit, non est absurdum et in loca-
tionibus et conductionibus trahere. Item pretium in numerata 2
pecunia consistere debet, nam " in ceteris rebus an pretium
esse possit, veluti homo aut fundus aut toga alterius rei
pretium esse possit, valde quaerebatur. Sabinus et Cassius
etiam in alia re putant posse pretium consistere : unde illud
est, quod vulgo dicebatur per permutationem rerum emp-
tionem et venditionem contrahi eamque speciem emptionis
venditionisque vetustissimam esse: argumentoque utebantur

finned by Justinian (Cod. 4. 38. 15), as to the validity of a sale in which
the fixing of a price had been Idt to a third person, had been that of
Proculus ; Labeo held such a transaction void, Gaius iii. 140. If either
of the parties to the contract were left to fix the price at his own absolute
discretion it was void, Dig. 18. i. 35. i, Cod. 4. 38. 13. Nor must the
price be illusory or merely nominal, else the transaction is a gift, and not
a sale. Dig. 18. i. 36, though this was not so if one sold at a less price
than one could have got in the market from motives of kindness or
friendship : ' si quis donationis causa minoris vendat, venditio valet ' Dig.
ib. 38.

As regards the fairness or adequacy of the price the general rule was,
in the absence of dolus, not to interfere with the freedom of contract.
Dig. 19. 2. 22. 3 ; 4. 4; 16. 4. But by two rescripts of Diocletian, Cod. 4.
44. 2 and 8, if a thing were sold for less than half its real value (laesio
enormis) the vendor might rescind the sale unless the vendee would pay
as much in addition as would make the price a fair one : ' vel si emptor
elegerit quod deest iusto pretio recipias.' Mr. Poste's restriction of the
enactment to sales of land seems to be without reason ; it speaks of < res'
generally.

§ 2. The lines relied on by the Sabinians are from Iliad vii. 472-5 : the

Ff

434 INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

Graeco poeta Homero, qui aliqua parte exercitum Achivorum
viQum sibi comparasse ait permutatis quibusdam rebus, his
verbis :

2XXoi /UP x^'^'^^f <^oi d* aiBwfi fFtl^tip^^
SK\oi d< fiivoiSf S^oi d' avrjai P6€a<rtf

Diversae scbolae auctore^ contra sentiebant aliudque esse
existimabant permutationem rerum, aliud emptionem et
venditionem. alioquin non posse rem expediri permutatis
rebus, quae videatur res venisse et quae pretii nomine data
esse : nam utramque videri et venisse et pretii nomine datam
esse rationem non pati. sed Proculi sententia dicentis per*
mutationem propriam esse speciem contractus a venditione
separatam merito praevaluit, cum et ipsa aliis Homericis
versibus adiuvatur et validioribus rationibus argumentatur.
quod et anteriores divi principes admiserunt et in nostris
3 digestis latius significatur. Cum autem emptio et venditio
contracta sit (quod effici diximus, simulatque de pretio con-
venerit, cum sine scriptura res agitur), periculum rei venditae
statim ad emptorem pertinet, tametsi adhuc ea res emptori
tradita non sit. itaque si homo mortuus sit vel aliqua parte
corporis laesus fuerit, aut aedes totae aut aliqua ex parte
incendio consumptae fuerint, aut fundus vi fluminis totus vel

' alii Homerici versus ' supporting the received opinion are cited by Paulus
in Dig. 1 8. i. i. i, from IL vi. 235. The anteriores principes referred to
as having confirmed the Proculian view are Diocletian and Maximian,
Cod. 4. 64. 3.

It is important to distinguish between sale and exchange (permutatio),
for they belong to different classes of contract, and their respective vincula
iuris are imposed by different causae. Permutatio is one of the innominate
contracts, p. 401 supr. ; there is no obligatio till one of the two exchanging
parties has done what he has promised ; but in sate, which is consensual,
the obligatio is independent of part performance.

It is not, however, necessary that the whole price shall be in money,
Dig. 18. I. 79; 19. I. 6. I and 2 ; and if, after the contract is concluded,
the vendor changes his mind, and agrees to take goods in lieu of the
purchase money, it remains sale and does not become exchange, Cod. 4.
44. 9-

§ 8. The property in the res vendlta did not pass to the purchaser till it

Th. 23.] DE EMPTIONE ET VENDITIONE. 435

aliqua ex parte ablatus sit, sive etiam inundatione aquae aut
arboribus turbine deiectis longe minor aut deterior esse coe-
perit: emptoris damnum est, cui necesse est, licet rem non
fuerit nactus, pretium solvere, quidquid enim sine dolo et
culpa venditoris accidit, in eo venditor securus est. sed et si
post emptionem fundo aliquid per atluvionem accessit, ad
emptoris commodum pertinet: nam et commodum eius esse
debet, cuius periculum est. Quod si fugerit homo qui veniit
aut subreptus fuerit, ita ut neque dolus neque culpa venditoris
interveniat, animadvertendum erit, an custodiam eius usque
ad traditionem venditor susceperit. sane enim, si susceperit,
ad ipsius periculum is casus pertinet: si non susceperit,
securus erit. idem et in ceteris animalibus ceterisque rebus
intellegimus. utique tamen vindicationem rei et condictionem

had been delivered to him by the vendor, provided he were owner, who
was not bound to do this until he had received the whole price, Bk. ii. i.
41 supr. Consequently, the rule that, even before delivery, the * periculum
rei * should fall upon the purchaser, and that he alone should suffer from
loss, destruction, or even deterioration of the res vendita without the
vendor's fault, was an exception from the legal maxim * res pent domino/
It was only rarely that such loss fell on the vendor ; e. g. if the res vendita
was not specifically ascertained, or if the sale had been made subject to a
suspensive and yet unfulfilled condition. But though not answerable for
casus, the vendor was bound, until traditio, to show in the case of the
thing sold the diligentia of a bonus paterfamilias (Excursus VI inf.) :
' custodiam autem venditor talem praestare debet quam praestant hi quibus
res commodata est, ut diligentiam praestet exactiorem quam in suis rebus
adhiberet ' Dig. 18. 6. 3 ; and he would be answerable for casus as well if,
as is said in the text, he expressly undertook the ' custodia,' by which is
meant 'custodia plenissima, qua casus quoque, certe qui humana pru-
dentia evitari potest, praestetur,' aiepc^ca-ran; koli wrtpfidWovaa napa<f>v\aKfi
Theoph.

The vendor was not bound to make the vendee owner of the res tradita,
but only to give free and undisturbed possession : in other words, a pos-
sessor could validly sell that which he possessed, and the purchaser could
not claim to rescind the contract, or contend that there never was a con-
tract at all, simply because the other party turned out not to have been
owner of the thing sold : * et imprimis ipsam rem praestare venditorem
oportet, id est, tradere ; quae res, si quidem dominus fuit venditor, facit et
emptorem dominum, si non fuit, tantum evictionis nomine venditorem
obligat, si modo pretium est numeratum aut eo nomine satisfactum. Emp-
tor autem nummos venditoris facere cogitur' Dig. 19. i. 11. 2, * verum est
venditorem hactenus teneri, ut rem emptori habere liceat, non etiam ut
eius fiat' ib. 30. i, qui vendidit, necesse non habet, fundum emptoris

Ff a

436 INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

exhibere debebit emptori, quia sane, qui rem nondum emptori
tradidit, adhuc ipse dominus est. idem est etiam de furti et

facere, ut cogitur, qui fundum stipulanti spopondit' Dig. i8. i. 25. 2 ; in
permutatio the rule was diflferent, Dig. 19. 4. I. 3. Dr. Hunter (Roman
Law p. 320) accounts for this peculiar rule of the Roman law of sale by
saying ' if the seller had been bound to make a good tide, then aliens (pere-
grini) could neither have bought nor sold, for they could not be owners
(domini ex iure Quiritium). But aliens could ^ possess,** and therefore an
obligation to deliver possession, combined with warranty against eviction,
gave them as complete rights as it was possible they could have in Roman
law.' But this fails to explain how they could be purchasers ; for if they
could not own the res vendita, neither could they own the money with
which they paid for it : ' emptor autem nummos venditoris facere cogitur,'
supr. Perhaps it is more correct to base the rule upon consideration for
the vendor, and the desire to facilitate commerce ; supposing that the thing
does not belong to the vendor, and that it is derelicta by the owner, or acci-
dentally destroyed, or acquired by the vendee per usucapionem, before
eviction, the vendor is absolved from all liability, and the parties have
achieved what they wished ; while, under the same circumstances, if he
had to make a good title, the contract would be void ab initio, and could
in no way be subsequently validated.

If the vendee did not pay the purchase money before or at the time of
traditio, he had to pay interest : ' nam cum re emptor fruatur, aequissimum
est eum usuras pretii pendere 'Dig. 19. i. 13. 20.

If the purchaser were evicted by process of law, i. e. if the res vendita
were recovered from him by some one having higher rights in it than he
had himself acquired from the vendor, the latter was liable by the actio
empti in damages. Dig. 21. 2. The obligation to compensate on eviction
did not apparently always exist, except in sales by mancipation, when the
vendor was bound communi iure, if the vendee were evicted, to return
double the price : ' res empta, mancipatione et traditione perfecta, si
evincatur, auctoritatis venditor dupli tenus obligatur ' Paul. sent. rec. 2. 17.
3. Ordinary sales seem to have usually been accompanied by a stipula-
tion, in which the vendor expressly promised a similar penalty in the like
event ; subsequently it became a general rule of law that, apart from any
stipulation, simple damages might be claimed if the title proved defective
(simplaria venditio) : ' sive tota res evincatur sive pars, habet regressum
emptor in venditorem' Dig. 21. 2. i.

By the civil law the vendor was held impliedly to warrant the quantity
and quality of what he sold only where he had been guilty of dolus, Dig.
19. I. II. 5 ; if he falsely stated the acreage of land double damages were
recoverable, Paul. sent. rec. I. 19, ib. 2. 17. 4, the remedy in such cases
being the actio empti. The curule aediles, in the exercise of their juris-
diction over the markets and market law, extended the obligation by im-
plying a general warranty in sales of slaves, horses, and cattle, enforceable

Tit. 23.] DE EMPTIONE ET VENDITIONE. 437

de damni iniuriae actione. Emptio tarn sub condicione quam 4
pure contrahi potest sub condicione veluti * si Stichus intra
certum diem tibi placuerit, erit tibi emptus aureis tot.' Loca 6
sacra vel religlosa, item publica, veluti forum basilicam, frustra
quis sciens emit, quas tamen si pro privatis vel profanis
deceptus a venditore emerit, habebit actionem ex empto,
quod non habere ei liceat, ut consequatur, quod sua interest
deceptum eum non ^ssq, idem iuris est, si hominem liberum
pro servo emerit.

by two new remedies ; (i) the actio redhibitoria, which lay only within six
months from the date of the contract, and the object of which was to cancel
it and recover the purchase money with interest ; (2) the actio aestima-
toria (or quanti minoris), which enabled the vendee to recover a part of
the purchase money proportionate to the defects discovered, and which
could be brought at any time within a year. This implied warranty and
the aedilician actions were extended to sales of every kind by the jurists
after Labeo.

§ 4. Sales * upon approval,' as we call them, could be effected by either
a suspensive or a resolutive condition. For an instance of the latter cf.
Dig. 18. 5. 6 * si convenit ut res quae venit, si intra certum tempus dis-
plicuisset, redderetur, ex empto actio est.' The condition in the text is
suspensive, and there is no contract until the would-be purchaser ex-
presses approval, though if the object is injured or destroyed before by
his feult he is liable in damages, Dig. 19. 5. 17. 2. Where the condition
is resolutive the sale is regarded as pure facta, though liable to be cancelled
by the res failing to give satisfaction ; and it will be cancelled even though
the ground of the disapproval be injury to or destruction of the thing oc-
curring without the vendee's fault. If no time is fixed for the expression
of approval or disapproval, it must be stated within a reasonable time
ascertained by local or commercial usage.

§ 5. All things, incorporeal (e. g. iura in re aliena and debts) as well as
corporeal, and universitates no less than res singulae, can be the objects
of a contract of sale, provided they could be the objects of a contract in
general as between the particular parties, except the services of a free man.
Res extra commercium, if their character is known to the vendee, are
thus excluded (fraud by the vendor is not essential, as might be inferred
from the text ; see Dig. 18. i. 4 ; ib. 6. pr. ; ib. 34. 2 ; ib. 70), as also are
(i) things which already belong to the purchaser ('suae rei emptio non
valet' Dig. 18. i. 16. pr.), unless the possession or usufruct is vested in
some other person, Dig. ib. 34. 4 ; 41. 2. 28 ; (2) things which are fmtivae
to the knowledge of both parties. Dig. 18. i. 34. 3 ; and (3) things which
are non-existent, unless their future existence is reckoned upon or at
least hoped for. In the sale of ' expectations ' and things not yet in esse
the Romans draw a distinction. An emptio of a 'res sperata' was held

438 INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

XXIV.

DE LOCATIONE ET CONDUCTIONE,

Locatio et conductio proxima est emptioni et venditioni
isdemque luris regulis consistunt. nam ut emptio et venditio
ita contrahitur, si de pretio convenerit, sic etiam locatio et
conductio ita contrahi intellegitur, si merces constituta sit. et
competit locatori quidem locati actio, conductori vero con-
1 ducti. Et quae supra diximus, si alieno arbitrio pretium
permissum fuerit, eadem et "de locatione et conductione dicta
esse intellegamus, si alieno arbitrio merces permissa fuerit.
qua de causa si fulloni poHenda curandave aut sarcinatori
sarcienda vestimenta quis dederit nulla statim mercede consti-
tuta, sed postea tantum daturus, quantum inter eos convenerit,

to be conditional on its future existence ; e. g. a crop which is liable to be
destroyed by floods : an 'emptio spei ' was absolute, Dig. i8. i. 8.

Tit. XXIV. In many points, as is observed in the text, the rules of
locatio conductio are (mutatis mutandis) identical with those of sale.
The contract is concluded as soon as the parties are agreed upon the
thing to be let and the hire nraney (merces), which must be pecunia
numerata, § 2, except that the rent of agricultural land may be paid in
kind, the amount being fixed either absolutely or at a certain proportion
of the yearly fruits. Cod. 4. 65. 21. So too the merces, like the pretium,
must be certa and vera, but need not be iusta, understanding these
terms in the senses already given to them under Tit. 23 ; nor, finally,
need the letter be dominus of that which he lets (Dig. 19. 2. 7 ; ib. 9 pr.
and 6) ; else subletting would have been impossible.

Transactions of three different kinds are included under this contract :
(i) Locatio conductio rerum, the letting by one (locator) and hiring by
another (conductor) of a thing moveable or immoveable (e.g. a house
with its premises, in which case the hirer was called inquilinus: or
agricultural land, when he was called colonus, Bk. ii. i. 36 supr.), or
even of a res incorporalis, e.g. a usufruct. Dig. 7. i. 12. 2 ; ib. 38.

(2) Locatio conductio operarum, the letting by one (locator) of his
services only to another (conductor), as in all contracts of free service.

(3) Locatio conductio operis, where one (conductor) engages to execute
a specific piece of work, e. g. build a house, a ship, a carriage, etc., for
another (locator). Here the ordinary use of the terms describing the
parties is inverted, the one who contracts to do the work, and who we
should say is hired, being regarded as the hirer.

§ 1. By the actio praescriptis verbis the contract is stamped as in-

Tit. 24.] DE LOCATIONE ET CONDUCTIONE. 439

non proprie locatio et conductio contrahi intellegitur, sed eo
nomine praescriptis verbis actio datur. Praeterea sicut vulgo 2
quaerebatur, an permutatis rebus emptio et venditto con-
trahitur: ita quaeri solebat de locatione et conductione, si
forte rem aliquam tibi utendam sive fruendam quis dederit
et invicem a te aliam utendam sive fruendam acceperit. et
placuit non esse locationem et conductionem, sed proprium
genus esse contractus, veluti si, cum unum quis bovem
haberet et vicinus eius unum, placuerit inter eos', ut per denos
dies invicem boves commodarent, ut opus facerent, et apud
alterum bos periit : neque locati vel conduct! neque com-
modati competit actio, quia non fuit gratuitum commodatum,
verum praescriptis verbis agendum est. Adeo autem fa- 3
miliaritatem aliquam inter se habere videntur emptio et
venditio, item locatio et conductio, ut in quibusdam causis
quaeri soleat, utrum emptio et venditio contrahatur, an locatio
et conductio. ut ecce de praediis, quae perpetuo quibusdam
fruenda traduntur, id est ut, quamdiu pensio sive reditus pro
his domino praestetur, neque ipsi conductor! neque heredi
eius, cuive conductor heresve eius id praedium vendiderit aut
donaverit aut dotis nomine dederit aliove quo modo alienaverit,
auferre liceat. sed talis contractus, quia inter veteres dubi-
tabatur et a quibusdam locatio, a quibusdam venditio ex-
istimabatur: lex Zenoniana lata est, quae emphyteuseos
contractu! propriam statuit naturam neque ad locationem
neque ad venditionem inclinantem, sed suis pactionibus
fulciendam, et si quidem aliquid pactum fuerit, hoc ita .
optinere, ac si naturalis esset contractus, sin autem nihil de
periculo rei fuerit pactum, tunc si quidem totius rei interitus
accesserit, ad dominum su{>er hoc redundare periculum, sin
particularis, ad emphyteuticarium huiusmodi damnum venire.

nominate, p. 400 supr. If after having left the remuneration to be fixed by
subsequent arrangement between themselves the parties were unable to
come to terms, the fullo or sarcinator could bring an actio mandati,
Tit 26. 13 inf.

§ 2. See Tit. 23. 2 and notes, supr.

§ 8. For the history and nature of emphyteusis see p. 325 supr. The
enactments of Zeno and Justinian did not (as Mr. Poste, on Gains iii.
145, supposes), require a written lease for the conclusion of the contract in
all cases, but only where the land belonged to the church or a charitable

440 INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

4 quo iure utimur. Item quaeritur, si cum aurifice Titio con-
venerit, ut is ex auro suo certi ponderis certaeque formae
anulos el faceret et accipcret verbi gratia aureos decem,
utrum emptio et venditio an locatio et conductio contrahi
videatur? Cassius ait materiae quidem emptionem venditto-
nemque contrahi, operae autem locationem et conductionem.
sed placuit tantum emptionem et venditionem contrahi.
quodsi suum aurum Titius dederit mercede pro opera con-
stituta, dubium non est, quin locatio et conductio sit

5 Conductor omnia secundum legem conductionis facere
debet et, si quid in lege praetermissum fuerit, id ex bono
et aequo debet praestare. qui pro usu aut vestimentorum
aut argenti aut iumenti mercedem aut dedit aut promisit, ab

foundation ; if the landlord was a lay person, writing was necessary only
if and so far as the parties wished to modify the regulations of the
ordinary law as settled by those two emperors, Cod. 4. 66. i, Nov.
120. 6. I.

§ 4. The opinion of Cassius had not many supporters in the time of
Gaius, who says (ill. 147) 'plerisque placuit emptionem et venditionem
contrahi.' The true criterion in such cases is given by Javolenus in Dig.
18. I. 65 'toties conductio alicuius rei est, quoties materia, in qua aliquid
praestatur, in eodem statu eiusdem permanet, quoties vero et immutatur,
et alienatur, emptio magis quam locatio intellegi debet.' In iii. 146 Gaius
puts the case of one letting out gladiators for the amphitheatre upon
terms that a specified sum should be paid for the services of each who
came out of the conflict unhurt, and a much larger one for each who was
killed or disabled ; though it was a moot point, he says the better opinion
was that it was hire so far as the first contingency went, and sale so far
. as the last, each gladiator being the subject of a conditional hiring and a
conditional sale, the event determining which of the contracts was to
oust the other.

§ 5. The rights and duties of the parties respectively can most con-
veniently be arranged under the three different forms of the contract.

i. In locatio conductio rerum the locator must allow the conductor to
use and take the fruits of the res locata during the time agreed upon,
unless prevented by impossibility arising from no fault of his own, in
which case he cannot demand the merces (Dig. 19. 2. 9. 3-4 ; ib. 19. 6),
though, if he has let a res aliena which its owner recovers from the con-
ductor by real action, he is liable to the latter in damages, whether in
fault or not, Dig. 19. 2. 7-9. pr. The thing again must be let in such a
condition that it can be used for the purpose agreed upon. Dig. ib. 19. i ;
if there are defects of which the locator was aware, he is liable in damages,
ib. ; if they were unknown to him the merces will be abated in proportion
to their importance. Burdens imposed by the law on the res locata itself

Tit. i4.1 DE LOCATIONE ET CONDUCTIONE. 441

eo custodia talis desideratur, qualem diligentissimus pater
familias suis rebus adhibet. quam si praestiterit et aliquo

(e.g. land tax) must be borne by him, Dig. 43. 10. i. 3 ; he must execute
all repairs, Dig. 19. 2. 15. i ; ib. 19. 2; ib. 25. 2, and compensate the
conductor for all necessary repairs and expenditure incurred therein
by him as well as for unexhausted improvements, Dig. ib. 19. 4;
ib. 55. I.

If the locator disabled himself from assuring the conductor the quiet
use and enjoyment of the res locata (e. g. land) for the whole of the time
agreed upon, as by selling it to a third person before the period for which
it was hired had elapsed, he was of course answerable in damages. But
the purchaser could evict the lessee even without notice (Kauf bricht
Miethe) : 'qui fundum fruendum vel habitationem alicui locavit, si aliqua
ex causa fundum vel aedes vendat, curare debet, ut apud emptorem
quoque eadem pactione et colono frui et inquilino habitare liceat :
alioquin prohibitus is aget cum eo ex conducto* Dig. 19. 2. 25. i, 'emp-
torem quidem fundi necesse non est stare colono, cui prior dominus
locavit, nisi ea lege emit' Cod. 4. 65. 9. If not evicted, the conductor
must continue to pay his rent to his lessor.

The conductor, besides being answerable, as is said in the text, for
exacta diligentia in the care of the res locata, must pay the merces agreed
upon, unless through default of the lessor he cannot use the thing for
the purpose for which it was hired. If any accident occurs to it whereby
its use or productive powers are seriously impaired, he is entitled to have
the merces proportionately abated. Dig. 19. 2. 15. 7. In respect of
agricultural land there were special regulations, the lessee, if he were
prevented from gathering his crops, and so suffered serious loss, by
events which we describe as 'the act of God and the king's enemies'
(Dig. 19. 2. 15. 2-4), being entitled to a complete remission of rent for
the year (Dig. ib. 15. 7), and to a proportionate reduction if the disaster
were partial only : ' ubicunque tamen remissionis ratio habetur ex causis
supra relatis, non id, quod sua interest, conductor consequitur, sed
mercedis exonerationem pro rata;* but if his lease was for a term of years
yet unexpired, he must, if possible, make up the amount remitted from
unusually good seasons. Dig. 19. 2. 15. 4. The conductor was also bound
to re-deliver the res locata at the end of the time for which he had hired
it in as good condition as when it came into his hands, saving ordinary
wear and tear ; if he groundlessly refused to do this up to judgment in
an action brought for its recovery Zeno made him liable in duplum, Cod.
4* 65* Z'^i ^nd he was not exempted from the obligation of restitution
even though he were or professed to be its owner ; he must give it up,
and then he may bring a real action to establish his dominium, Cod. ib.
25. The relations of locator and conductor were not affected by the fact
of the latter's subletting, which created no * privity ' between locator and
sublessee, though the former had a hypothec over the latter's invecta et
iUata, which, however, he could evade by paying his rent to the superior
instead of the immediate landlord, Dig. 13. 7. 11. 5.

44^ INSTITUTIONUM LIBRI QUATTUOR. [Lib.in.

6 casu rem amiserit, de restituenda ea non tenebitur. Mortuo
conductore intra tempora conductionis heres eius eodem iure
in conductionem succedit.

The locator could with impunity withdraw from the contract (i) if the
conductor failed to pay the merces for two years, Dig. 19. 2. 54. i, or used
the res locata for other purposes than those for which it was hired, Cod. 4.
65. 3 ; (2) if repairs were absolutely necessary which would interfere with
its use, Cod. ib. ; (3) if the res locata were a building, and he required it
himself for purposes which could not have been foreseen at the date of the
contract, Cod. ib. Conversely the conductor could withdraw, (i) if the
lessor failed to deliver the res locata to him at the time agreed upon, or
in a fit condition to be used for the purpose designed. Dig. 19, 2. 24. 4,
ib. 25. 2, ib. 60. pr. ; (2) if he could not use it for that purpose without
great risk to himself, Dig. ib. 27. i, Dig. 39. 2. 28.

ii. In locatio conductio operarum, which, owing to the institution of
slavery, is of far less importance in the civH than in modem law, the
duties of the locator (servant) are no more than to serve duly and
properly for the term agreed upon, though, if prevented by pure accident,
he will be excused. Dig. 19. 2. 30. i. The conductor must pay the
wages settled, unless the other fails, even through accident, to perform
his part of the contract ; in this event his liability is extinguished or
reduced pro rata, and he must indemnify the locator for all reasonable
expenditure. The so-called operae locari non solitae, or operae liberales
— the intellectual services of teachers, advocates, notaries, physicians,
etc. — could not be the object of any binding contract, Dig. 11. 6. i. pr.,
though if rendered at request honoraria could usually be recovered
through the magistrate's extraordinaria cognitio, except by professors of
law and philosophy, Dig. 50. 13. i. 4 and 5.

iii. In locatio conductio opens (which was said to be made 'per
aversionem ' if the agreement was to do the whole job at a sum absolutely
fixed, as distinct from so much per diem, or so much for each portion
completed) the conductor operis must execute and deliver the opus
according to the specifications, and is answerable for all defects, whether
due to his own want of skill or carelessness, or to that of his workmen
and subordinates. Dig. 19. 2. 25. 7, ib. 13. 5, ib. 62 ; after acceptance and
approval of the work by the locator this liability is extinguished except
where there has been dolus on the conductor*s part. Dig. ib. 24. pr. If
before completion the work was accidentally destroyed he was entitled
to payment so far as he had gone. Dig. ib. 36. 37. 59.

The locator must pay the merces agreed upon, provided the work is
satisfactorily executed; but he may withdraw from the contract if the
ultimate cost exceeds the estimate given him by the other, Dig. 19. 2.
60. 4.

§ 6. The death of either party did not dissolve the contract unless it
was limited either expressly or by implication to the person of the
deceased, which in locatio conductio operarum was usually presumed;
cf. Dig. 19. 2. 4.

Tit. 25 J DE SOCIETATE. 443

XXV.
DE SOCIETATE,

Societatem coire solemus aut totorum bonorum, quam
Graeci specialiter Koivoirpa^Cav appellant, aut unius alicuius
negotiationis, veluti mancipiorum emendorum vendendor-

In locatio conductio rerum et operarum, if the hiring was for no specific
time, either party could terminate the contract by notice of the length
prescribed by local or commercial usage. If the conductor rei continued
to use the thing, with the other's assent, after the time agreed upon had
expired, a new contract was understood to have been made (relocatio
tacita) ; if the res was agricultural land, for a year ; if anything else,
and the original agreement was in writing, for the term therein specified ;
if not, for the time during which the contractor actually used the thing.

Tit. XXV. Before distinguishing the different forms which a partner-
ship might assume, two limitations should be noticed which the contract
, might not transgress. No person could even by express agreement de-
prive himself of the right, noticed in § 4 inf., of withdrawing from a
partnership when he pleased ; in other words, there could be no societas
in aetemum ; * in societatem nemo compellitur invitus detineri ' Cod. 3.
37. 5. Secondly, the purpose for which the contract was formed must be
neither unlawful nor immoral: 'generaliter traditur, rerum inhonestarum
nullam esse societatem' Dig. 17. 2. 57.

A fuller classification of the species of partnership is given in Dig. 17. 2.
S and 7, viz. :

(i) Societas omnium bonorum, in which all that previously belonged to
the socii in severalty becomes their joint property by the mere making of
the contract (see on Bk. ii. i. 40 supr.), as well as everything which any of
them may subsequently acquire : ' in societate omnium bonorum omnes
res, quae coeuntium sunt, continuo communicantur, quia, licet specialiter
traditio non interveniat, tacita tamen creditur intervenisse ; ea vero, quae
in nominibus sunt, manent in suo statu, sed actiones invicem praestari de-
bent ' Dig. 17. 2. 1-3. This rule does not hold in the remaining kinds of
societas. Debts contracted by one of the partners, whether before or
during the partnership, can be claimed out of the joint property. Dig. ib.
27, which, however, is not liable for damages incurred ex delicto unless it
has been augmented from the proceeds of the wrong, ib. 53.

(2) Societas universorum quae ex quaestu veniunt, or ordinary com-
mercial partnership, which, in the absence of express agreement, was
presumed to be the transaction intended by the parties. Gains derived
from gift, legacy, or inheritance were not included under quaestus. Dig. 17.
2. 7-13-

(3) Societas negotiationis alicuius, agreement for the joint conduct of
some special business, e.g. as com or wine merchants. Dig. ib. 5. pr., ib.

444 INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

1 umque, aut olei vini frumenti emendi vendendique. Et
quidem si nihil de partibus lucii et damni nominatim con-
venerit, aequales scilicet partes et in lucro et in damno
spectantur. quod si expressae fuerint partes, hae servari
debent : nee enim umquam dubium fuit, quin valeat conventio,
si duo inter se pacti sunt, ut ad imum quidem duae partes et

2 damni et lucri pertineant, ad alium tertia. De ilia sane con-
ventione quaesitum est, si Titius et Seius inter se pacti sunt,
ut ad Titium lucri duae partes pertineant, damni tertia, ad
Seium duae partes damni, lucri tertia, an rata debet haberi
conventio? Quintus Mucius contra naturam societatis talem
pactionem esse existimavit et ob id non esse ratam habendam.
Servius Sulpicius, cuius sententia praevaluit, contra sentit,
quia saepe quorundam ita pretiosa est opera in societate, ut
eos iustum sit meliore condicione in societatem admitti : nam
et ita coiri posse societatem non dubitatur, ut alter pecuniam
conferat, alter non conferat et tamen lucrum inter eos com-
mune sit, quia saepe opera alicuius pro pecunia valet et adeo
contra Quinti Mucii sententiam optinuit, ut illud quoque
constiterit posse convenire, ut quis lucri partem ferat, damno
non teneatur, quod et ipsum Servius convenienter sibi existi-
mavit: quod tamen ita intellegi oportet, ut, si in aliqua re
lucrum, in aliqua damnum allatum sit, compensatione facta

\ 52. 4 and 5. A particular form of this was societas vectigalis, formed for
' "' ' the farming of the public revenue, a peculiarity of which was that the rule

stated in § 5 inf. did not hold. Dig. 17. 2. 59.
- 'i) } "^ Societas rei unius, the object of which is a single transaction, eg.
"V the joint purchase of specific property. Dig. ib. 5. pr., ib. 58. pr.

§ L As appears from 2 inf. ad fin., by lucrum and damnum is meant a
favourable and an adverse balance at the time when the accounts are
taken, e. g. at the end of the year, or when the partnership is dissolved.
If it were agreed, in a partnership between A and B, that while each
should share losses equally, A should have a larger proportion of profits,
it was a condition that A should have contributed more than B either of
capital, credit, or management, etc. : * si vero placuerit ut quis duas partes
vel tres habeat, alius unam, an valeat ? placet valere, si modo aliquid plus
contulit societati vel pecuniae vel operae vel cuiuscunque alterius rei
causa* Dig. 17. 2. 29. pr. In the text before us (nee enim unquam ....
ad alium tertia) the excess contributed by A is to be found by laying stress
upon the words ' et damni.'
§ 2. The earlier part of this section seems at first sight to be directly

Tit. 25.] DE SOCIETATE. 445

solum quod superest intellegatur lucri esse. lUud expeditum 3
est, si in una causa pars fuerit expressa, veluti in solo lucro
vel in solo damno, in altera vero omissa : in eo quoque quod
praetermissum est eandem partem servari. Manet autem4
societas eo usque, donee in eodem consensu perseveraverint :
at cum aliquis renuntiaverit societati, solvitur societas. sed
plane si quis callide in hoc renuntiaverit societati, ut obveniens
aliquod lucrum solus habeat, veluti si totorum bonorum socius,
cum ab aliquo heres esset relictus, in hoc renuntiaverit
societati, ut hereditatem solus lucrifaceret, cogitur hoc lucrum

contradicted by Dig. 17. 2. 30 * Mucius scribit, non posse societatem
coiri, ut aliam damni aliam lucri partem socius ferat. Servius in notatis
Mucii ait ncc posse societatem ita contrahi, neque enim lucrum intelle-
gitur, nisi omni damno deducto, neque damnum, nisi oroni lucro deducto ;
sed potest coiri societas ita, ut eius lucri, quod reliquum in societate sit,
omni damno deducto, pars alia feratur, et eius damni, quod similiter re-
linquatur, pars alia capiatur.' What Servius (Sulpicius) meant in this
passage was that, if Mucius' dictum be taken literally, it is true, because
in a partnership one cannot speak of lucrum and damnum, but only of
lucrum or damnum ; but if it be taken to mean that A and B cannot
become partners upon terms that, if the partnership transactions end in a
profit, A shall have % and B \iy but that if they end in a loss A shall bear
yi and B ^, it is altogether untrue ; though (as is implied in the quia
saepe, etc, of our text) such an arrangement is incompatible with the rules
of societas unless A contributes more, either money, skill, credit, manage-
ment, etc., to the business. Sulpicius seems to have been a keen critic of
Mucius (Scaevola) : ^ Servius Sulpicius reprehensis Mucii capitibus '
Cell. 4. I.

So too it was allowable for A to share in profits, but not in losses, only
if he did more for the partnership in some way or other than B, Dig. 17.
2. 29. I ; but the converse agreement, that A should help to bear the loss,
but should have no share in the profits (called leonina societas from
Phaedrus i. 5) was void: Mniquissimum enim genus est, ex quo quis
damnum, non etiam lucrum spectet' Dig. ib. 29. 2. The reason why
such a transaction is invalid as societas is stated in Dig. 24. i. 32. 24
^ nulla societas est, quae donationis causa interponitur ; ' though it will
stand as a gift, if so intended, and the rules governing such dispositions
(p. 234 supr.) are complied with. If the shares in lucrum and damnum
were left to be fixed by one of the partners themselves (Dig. 17. 2. 6), or
by a third person (ib. 76-80), it was assumed that the decision would be
that of a vir bonus : ' unde, si arbitrium ita pravum est, ut manifesta
iniquitas eius appareat, corrigi potest per indicium bonae fidei' Dig.
loc. cit. 79.

§ 4. The prohibition against ' renunciatio callida ' may be more widely

44* INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

communicare : si quid vero aliud lucrifaceret, quod non cap-
taverit, ad ipsum solum pertinet : d vero, cui renuntiatum est,
quidquid omnino post renuntiatam societatem adquiritur, soli

5 conceditur. Solvitur adhuc societas etiam morte socii, quia
qui societatem contrahit certam personam sibi eligit. sed
et si consensu plurium societas coita sit, morte unius socii
solvitur, etsi plures supersint, nisi si in coeunda societate

6 aliter convenerit. Item si alicuius rei contracta societas sit

7 et finis negotio impositus est, finitur societas. Publicatione

stated ; a partner who withdrew at a time, or in a manner which would
prejudice the interests of the societas, could be compelled to compensate
his socii, Dig. 17. 2. 14 ; ib. 17. 2 ; and if his object was * ut obveniens ali-
quod lucrum solus habeat,' and the expected gain turned out a loss, he had
to bear it alone : ' Cassius scripsit eum, qui renunciaverit societati, a se
quidem liberare socios suos, se autem ab illis non liberare : quod utique
observandum est, si dolo malo renunciatk) facta sit, veluti si, cum omnium
bonorum societatem inissemus, deinde cum obvenisset uni hereditas,
propter hoc renunciavit ; ideoque si quidem damnum attulerit hereditas,
hoc ad eum qui renunciavit pertinebit, commodum autem communicare
cogetur actione pro socio * Dig. 17. 2. 65. 3, So too if one of two partners
renounced while the other was away, the societas was held to be subsist-
ing as regards the duties, but not the rights of the former until the other
had received notice of the withdrawal, ib. 17. i.

§ 6. An agreement that one's heir should succeed one as partner (ex-
cept in societas vectigalis) was void : ' adeo morte socii solvitur societas,
ut nee ab initio pacisci possimus ut heres etiam succedat societati ' Dig.
17. 2. 59. pr., ib. 35 ; but the heir, though not a partner, was bound to
complete all business commenced by the deceased, being herein answer-
able for culpa lata only, Dig. ib. 35. 36. 40. The death of one socius dis-
solved the contractual relation even between the rest, unless it had been
otherwise agreed at the outset, ib. 65. 9 ; but in no case had it any opera'*
tion until the other partners had heard of the decease, and transactions
entered into by them between the death and notice of it were transactions
of the firm, ib. 65. 10.

The two higher kinds of capitis deminutio had the same effect on
societas as death : ' dicitur et capitis deminutione solvi societatem, quia
civili ratione capitis deminutio morti aequiparari dicitur : sed si adhuc
consentiant in societatem, nova videtur incipere societas' Gaius iii. 153,
* societas quemadmodum ad heredes socii non transit, ita nee ad adro-
gatorem, ne alioquin invitus quis socius efficiatur cui non velit : ipse autem
adrogatus socius permanet, nam etsi filiusfamilias emancipatus fuerit,
permanebit socius' Dig. 17. 2. 65. il.

§ 6. So too a societas was dissolved by the object for which it was formed
proving unattainable. Dig. ib. 58. pr.

§ 7. A forfeiture (publicatio) might be partial only : Me vi privata dam*

Tit.asJ DE SOCIETATE. 447

quoque distrahi societatem manifestum est, scilicet si universa
bona socii publicentur : nam cum in eius locum alius succedit,
pro mortuo habetur. Item si quis ex sociis mole debiti prae- 8
gravatus bonis suis cesserit et ideo propter publica aut
propter privata debita substantia eius veneat, solvitur societas.
s'ed hoc casu si adhuc consentiant in societatem, nova vide-
tur incipere societas, Socius socio utrum eo nomine tantum 9
teneatur pro socio actione, si quid dolo commiserit, sicut is
qui deponi apud se passus est, an etiam culpae, id est desidiae
atque neglegentiae nomine, quaesitum est: praevaluit tamen
etiam culpae nomine teneri eum, culpa autem non ad ex-
actissimam diligentiam dirigenda est: suffidt enim talem
diligentiam in communibus rebus adhibere socium, qualem

nati pars tertia bononim ex lege lulia publicatur ' Dig. 48. 7. i. pn ; when
total (the only case in which it extinguished societas) it did so only by
producing one of the two higher kinds of capitis deminutio, and so is not
a distinct mode of termination : 'damnatione bona publicantur cum aut
vita adimitur aut civitas, aut serviiis condicio irrogatur' Dig. 48. 20. i.
The * alius ' who succeeds * universally' is the fiscus. Dig. 46. i. 71. pr.

§ 8. For cessio bonorum see p. 391 supr. Societas could be dissolved,
besides the modes mentioned in the text, (i) by lapse of the time for
which it was originally formed, Dig. 17. 2. i. pr. ; ib. 65. 6. Where per-
sons had become partners for a definite term neither could withdraw
during it except on a reasonable ground, Dig. ib. 14-16, in the absence of
which it was open to the other to treat the partnership as still subsisting
in respect of the withdrawer's duties, ib. 65. 6 ; (2) By division, either
voluntary and extrajudicial, or enforced through action by one of the socii :
for the form of this see next note.

§ 9. The rights and duties of partners inter se are mainly as follow.
Each must contribute the stipulated quota of capital or labour ; inability
arising from no fault of his own, while exempting him from this duty, at
the same time disabled him from enforcing it against the rest, Dig. 17. 2.
58. pr. and i. In determining what faults were imputable, the standard
of diligentia, as is said in the text, was merely that qualem in suis rebus,
£xc. VI inf. ; the reason assigned for this by Justinian being the same as
that which is given in the case of depositum in Tit. 14. 3 supr. If, how-
ever, after undertaking the conduct of any particular piece of partnership
business, he left it to a subordinate, he was unconditionally answerable for
the latter's shortcomings. Dig. 17. 2. 23. Whatever he acquires for the
societas, or by its means, he is bound * communicare,' i. e. to throw into
the common fund, or to give his socii their fair share, ib. 52. pr., 67. pr. ;
conversely he can claim to be indemnified for all personal losses and ex-
penses incurred in partnership affairs, ib. 38. i ; 52. 4, and in societas

448 INSTITUTIONUM LIBRI QUATTUOR. [Ub. III.

suis rebus adhibere solet. nam qui parum diligentem socium
sibi adsumit, de se queri debet.

omnium bonorum tq have all his debts, except those incurred ex delicto
(see p. 443) discharged from the common property. Losses arising from
the insolvency of one partner must be divided among all according to
the principles stated in §§ 1-3 supr. and notes ; Dig. 17. 2. 67. pr.

The remedy by which partners enforced these duties against one another
was the actio pro socio, condemnation in which entailed infiamia, Bk. iv.
16. 22 inf. ; but the defendant could claim beneficium competentiae against
the rest, i. e. they were not entitled to take all his property in satisfaction
of their claims, but must leave him enough to supply the bare necessities
of life, Bk. iv. 6. 38 inf., though Dig. 42. i. 16 (perhaps incorrectly) limits
the beneficium to societas omnium bonorum. Division of the joint pro-
perty could be compelled by the actio communi dividundo, Bk. iv. 6. 20 ;
ib. 28 ; iv. 17. 5 inf.

The question of the rights of partners against, and their duties towards,

third persons, is a different one. If all the partners together enter into a

contract with some one else, they are entitled and bound in relation to him

in the ratio of their shares in the lucrum and damnum : ' si tamen plures
* ... ... .

per se navem exerceant, pro portionibus exercitionis convenmntur, neque

invicem sui magistri videntur ' Dig. 14. i. 4. pr., ' quamvis actio ex empto
cum singulis sit pro portione, qua socii fuerunt' Dig. 21. i. 44. i. By
special agreement such contract may produce an active or passive cor-
real obligation in favour of or binding the partners, and where they are
bankers such an obligation results ipso iure from all strictly banking
transactions entered into by any of them : ' si plures sint qui eandem
actionem habent, unius loco habentur : utputa plures sunt rei stipulandi
vel plures argentarii, quorum nomina simul facta sunt ; unius loco nume-
rabuntur, quia unum debitum est ' Dig. 2. 14. 9. pr. ; ib. 25. pr. ; ib. 27.
But if the contract is made by one or some only of the partners, the ques-
tion arises how far they confer rights and impose obligations on the rest.
Even if the transaction is clearly a partnership transaction, the latter
can sue upon it only as assignees, even though it was entered into by
their own express instructions, though they are entitled to a cessio of
the right of action, which, if necessary, they can compel by judicial
process.

As regards their liabDities, it should be carefully observed that the
partnership is never conceived as a fictitious person, capable in itself of
having rights and owing duties, as distinct from the partners ; the latter
cannot claim that business creditors, in the event of the firm becoming in-
solvent, shall limit their demands to the partnership assets, though they
can insist on the latter being proceeded against and exhausted first. Dig.
17. 2. 65. 14. Three cases, in which the contract is not made by all the
partners collectively, need to be distinguished :

(a) If the partner who actually makes the contract was instructed to
do so by the rest— i.e. is their agent—they are each liable in solidum :

Tit. 26.] DE MANDATO. 449

XXVI.
DE MANDATO.

Mandatum contrahitur quinque modis, sive sua tantum
gratia aliquis tibi mandet, sive sua et tua, sive aliena tantum,
sive sua et aliena, sive tua et aliena. at si tua tantum gratia
tibi mandatum sit, supervacuum est mandatum et ob id nulla

* sed si plures exerceant, unum autem de numero suo magistrum fecerint,
huius nomine in solidum poterunt conveniri' Dig. 14. i. 4. i ; nor could
they claim the beneficium divisionis, * ne in plures adversarios distrin-
gatur qui cum uno contraxerit ; ' one who paid of course had regressus,
Dig. 14. 3. 13. 2 ; ib. 14.

{b) If he is not their express agent for the purpose, the actually con-
tracting partner alone incurs liability, even though the transaction is
entered into on behalf of the firm, unless (i) the rest subsequently ratify
it, whereby they become as liable as if it had been authorized by them
from the first, and (2) except and so far as the firm has been benefited
by the contract : * iure societatis per socium acre alieno socius non obli-
gatur, nisi in communem arcam pecuniae versae sunt' Dig. 17. 2. 82.
Thus in Roman law socii have no implied authority to bind one another
even upon transactions which form their ordinary business.

{c) If he makes the contract in his own name and on his own account,
the rest incur no liabilities even though it results in a benefit to them.

Tit. XXVI. The contract of mandatum produces effects of two dif-
ferent kinds ; first, an obligation between the principal (mandator,
dominus) and the agent (mandatarius, procurator ; the first term is not
classical), which is discussed fully in this Title ; and second, the relation
of representation; this subject, which regards the rights and duties
that arise immediately for the principal from the contracts made by
his agent on his behalf, is discussed in Excursus IX at the end of
this Book.

The scope of the agent's commission might be general as well as special,
and so might extend to the management of a person's entire affairs ; but
it might not be unlawful or immoral, § 7 inf.. Dig. 17. i. 6. 3 : ib. 12. 11
and 13 : it must relate only to future acts, Dig. ib. 12. 14 and 15, and as
a rule must be for the doing of something which the mandator could
lawfully do for himself. Dig. ib. 6. 6 : 8. 5 : 10. 4.

Justinian's ^wq species of mandatum are taken from the res quotidianae
of Gaius (Dig. 17. i. 2. 1-6), where, as here, the possible case is omitted
of a commission being given by A to B to lend money at interest to C, in
order to enable the latter to pay a debt owing to himself, which is in the
interest of all three (sua, tua, et aliena). Supervacuum is here used to
mean ' void' : cf. inutilis in Tit. 19. supr.

Gg

450 INSTITUTIONUM LIBRI QUATTUOR. [Lib III.

1 ex eo obligatio nee mandati inter vos actio nascitur. Man-
dantis tantum gratia intervenit mandatum, veluti si quis tibi
mandet, ut negotia eius gereres, vel ut fundum ei emeres, vel

2 ut pro eo sponderes. Tua et mandantis, veluti si mandet
tibi, ut pecuniam sub usuris crederes ei, qui in rem ipsius
mutuaretur, aut si volente te agere cum eo ex fideiussoria
causa mandet tibi, ut cum reo agas periculo mandantis, vel ut
ipsius periculo stipuleris ab eo, quem tibi deleget in id quod

3 tibi debuerat. Aliena autem causa intervenit mandatum,

§ 1. The use of 'sponderes* is mere pedantry; in Dig. 17. i. 2. i ;
ib. 6. 2 ; ib. Z, 8, and other passages relating to this subject, we read only
of fideiussio. The second of the three instances given here may be
illustrated thus. A becomes surety (fideiussor) to you for B, who owes
you 50/. : on your proposing to sue him on this contract of suretyship,
he commissions you (mandat) to sue B, the principal debtor, in lieu of
him at his (A's) risk. This is to A's interest, because he is protected
from your action at any rate for a time, an advantage which he could not
have otherwise secured, as Nov. 4 had not yet introduced the beneficium
ordinis (p. 427 supr.) ; and he is altogether so protected if B proves solvent.
It is to your interest, because the mandate may and probably will contain
more favourable conditions than the fideiussio, e. g. the security of a hy-
potheca (vn66ov yitp Bti fj tyyvrj yiyovt 6ix<i vnoBrfKij^f t6 3« fxapbarov ficrA
{moOrfKrjs Theoph.), and before Justinian's legislation it would have been
most advantageous to you if you had been in doubt which was solvent,
A or B, for in virtue of it you could first sue B without risk, and then, if
he proved to have insufficient assets, you could sue A by actio mandati,
which you could not have done by action on the guaranty, because he
was released as fideiussor by litis contestatio with B. This was remedied
by Justinian in Cod. 8.41. 28 'generaliter sancimus, quemadmodum in
mandat oribus statutum est, ut, contestatione contra unum ex his facta,
alter non liberetur, ita et in fideiussoribus observari.'

To explain the third instance we will suppose that A owes 50/. to B,
who owes the same sum to C. B gives a commission to C to stipulate
from A at his (B's) risk that he (A) will pay him (C) the 50/. which he
owes B ; ' delegare est vice sua alium reum dare creditori vel cui iusserit '
Dig. 46. 2. II. As Mr. Poste points out, the result of this transaction,
compounded of mandate and stipulation, is two novations, extinguishing
the original debts of A to B, and B to C, and creating two new liabilities,
a debt of 50/. owed by A to C, and a mandate between B and C under
which B is guarantor of A ; it is to B's interest, because he is released
from the action on the debt to C, which might have been stricti iuris,
and to which he was immediately liable, and can only be sued, if at all,
by actio mandati, which is bonae fidei ; it is favourable to C, because he
thereby gets two debtors (a principal and a surety) instead of one.

§ 8. If A commissioned B to do something for C, he had no rights

Tit. 26.] DE MANDATO. 45 T

veluti SI tibi mandet, ut Titii negotia gereres, vel ut Titio
fundum emeres, vel ut pro Titio sponderes. Sua et aUena;4
veluti si de communibus suis et Titii negotiis gerendis tibi
mandet, vel ut sibi et Titio fundum emeres, vel ut pro eo et
Titio sponderes. Tua et aliena, veluti si tibi mandet, ut Titio 5
sub usuris crederes. quodsi ut sine usuris crederes, aliena

(igainst 6 under the contract unless or until he had an interest in the
proper performance of the act undertaken : * mandati actio tunc com-
petit, cum coepit interesse eius qui mandavit : ceterum si nihil interest,
cessat mandati actio, et eatenus competit quatenus interest' Dig. 17. i.
8. 6. This seems to be contradicted by 6. 4 in the same Title : ' si tibi
mandavero quod mea non intererat, veluti ut pro Seio intervenias vel ut
Titio credas, erit mihi tecum mandati actio, ut Celsus scribit, et ego tibi
sum obligatus.' The explanation, as Dr. Walker observes (Selected
Titles from the Digest, Introduction to part I.), is ' that a mandate at the
time it is given may be aliena tantum gratia, but that it must become
mandantis gratia also before it can be sued upon; and it may become
mandantis gratia in two ways. In the first place, this may be the result
of the mandatarius beginning to act, for he thus turns his mandator into
a negotiorum gestor of the benefited party ; i. e. he makes him an un-
solicited intermeddler with another's affairs ; and a negotiorum gestor is
answerable to the stranger for any mismanagement or loss. Hence,
from the moment the mandatarius begins to act, the mandator, by
reason of his own liability to the stranger, has an interest sufficient to
found a right of action against the mandatarius. Secondly, the stranger,
because of his knowledge of the mandate having been given, supposing
he hears of it, may abstain from executing his own business, so that the
non-performance or faulty performance of the mandate may do him hurt ;
and for this, as traceable to the action of the mandator, he can, as before,
hold the mandator responsible in his capacity of a negotiorum gestor.'

§ 6. By the civilians this is called mandatum qualificatum. If A
advised or requested (mandavit) B to give credit to C, i.e. either to
enter into a contract with him (as to lend him money, § 6 inf.), whereby
he became his creditor, or to defer suing upon a debt already owed
him by C (Dig. 17. 1. 12. 14), A was taken to warrant C's honesty and
solvency, and became answerable to B by actio mandati, if the latter
took his advice or complied with his request, that the debt should be
discharged; and this even though B would have lent the money, or
deferred the suit, in any case. Thus in effect a contract of suretyship,
or rather of indemnity, can be made by means of a mandatum, which
in this form is usually co-ordinated in the Corpus iuris with fideiussio
(Dig. 46. I, Cod. 8. 41, de fideiussoribus et mandatoribus) : cf. Dig. 17. i.
32 Mn summa quicunque contractus tales sunt, ut quicunque eorum
nomine fideiussor obligari possit, et mandati obligationem consistere
puto : neque enim multum referre, praesens quis interrogatus fideiubeat,
an absens mandet/

Gg2

45a INSTITUTIONUM LIBRI QUATTUOR. [Lib. IIT.

6tantum gratia intercedit mandatum. Tua gratia intervenit
mandatum, veluti si tibi mandet^ ut pecunias tuas potius in
emptiones praediorum colloces, quam feneres, vel ex diverse
ut feneres potius, quam in emptiones praediorum colloces.
cuius generis mandatum magis consilium est quam mandatum,
et ob id non est obligatorium, quia nemo ex consilio mandati
obligatur, etiamsi non expediat ei cui dabitur, cum liberum
cuique sit apud se explorare, an expediat consilium, itaque
si otiosam pecuniam domi te habentem hortatus fuerit aliquis,
rt rem aliquam emeres vel eam credas, quamvis non expediet
tibi eam emisse vel credidisse, non tamen tibi mandati tenetur.
et adeo haec ita sunt^ ut quaesitum sit, an mandati teneatur
qui mandavit tibi, ut Titio pecuniam fenerares : sed optinuit
Sabini sententia obligatorium esse in hoc casu mandatum,
quia non aliter Titio credidisses, quam si tibi mandatum esset.

The peculiarities of mandatum as a form of suretyship are due to the
very fact that it is mandatum, and not constitutum or fideiussio. Thus,
the mandator is liable even though owing to incapacity in the third party
no principal obligation is established between the latter and the man-
datarius, Dig. 4. 4. 13. pr. ; he can save himself by revoking the com-
mission so long as it has not yet been acted on, § 9 inf.. Dig. 17. 1. 12. 16,
and the commission itself is revoked by the mandator's death ; payment
by him does not release the principal debtor, Dig. ib. 28, nor did an
action brought by mandatarius against mandator or the third party
release the other, as formerly was the case with sureties by verbal
obligation, note on § 2 supr. ; the mandator, even after having paid the
mandatarius, can get an assignment of the latter's right of action against
the debtor, the debt not being extinguished as it would be in the case of
a fideiussor (see on Tit. 20. 4 supr.) ; and, finally, the mandator himself
has an action against the mandatarius if the latter accepted the com*
mission and then did not properly execute it. Dig. 17. i. 6. 4.

§ 6. So strongly was it felt, Justinian says, that a mandatum tua
tantum gratia created no obligation, that people even extended the
doubt to those which were for the benefit of a third person as well as of
yourself: especially as it seems not improbable from Dig. 17. i. 6. 4
(cited on § 3 supr.) that a mandate aliena tantum gratia was also originally
held to be void. Sometimes a person incurred a liability to compensate
in case of loss accruing to the other party even upon a mere consilium ;
e. g. where by special contract he expressly undertook responsibility for
his advice, and where the advice was given with evil intent, for the very
purpose of damaging the other : ' consilii non fraudulenti nulla obligatio
est: ceterum si dolus et calliditas intercessit, de dolo actio competit'
Dig. 50. 17. 47. pr. : cf. the text, 'nemo ex consilio mandati tenetur.'

Tit. 26.] DE MANDATO. 453

lUud quoque mandatum non est obligatorium, quod contra 7
bonos mores est, veluti si Titius de furto aut damno faciendo
aut de iniuria facienda tibi mandet. licet enim poenam istius
facti nomine praestiteris, non tamen ullam habes adversus
Titium actionem.

Is qui exsequitur mandatum non debet excedere fines 8
mandati. ut ecce si quis usque ad centum aureos mandaverit
tibi, ut fundum emeres vel ut pro Titio sponderes, neque
pluris emere debes neque in ampliorem pecuniam fideiubere,
alioquin non habebis cum eo mandati actionem : adeo quidem,
ut Sabino et Cassio placuerit, etiam si usque ad centum
aureos cum eo agere velis, inutiliter te acturum : diversae
scholae auctores recte te usque ad centum aureos acturum
existimant : quae sententia sane benignior est. quod si minoris
emeris, habebis scilicet cum eo actionem, quoniam qui mandat,
ut sibi centum aureorum fundus emeretur, is utique mandasse
intellegitur, ut minoris si posset emeretur.

§ 8. Gaius seems to have been in two minds as to the rights of an
agent who went beyond the price at which he had been commissioned
to buy ; in his Institutes he adopts the Sabinian view (iii. 161), while in
his res quotidianae (Dig. 17. i. 4) he says 'sed Proculus recte eum usque
ad pretium statutum acturum existimat, quae sententia sane ben%nior est.'

The principal duties of the agent are — to properly execute his com-
mission, Dig. 17. I. 5. I : ib. 6. I : ib. 8. 2, or to give notice, if possible,
when he is unavoidably prevented, ib. 27. 2 ; in its execution to display
exacta diligentia. Cod. 4. 35. 13 ; to execute it himself in person, unless
he has express or implied authority to depute the business to an agent of
his own, in which case he is answerable for all shortcomings of his subor-
dinate which he was or ought to have been aware of (culpa in eligendo).
Dig. ib. 8. 3 ; to give up all property which comes into his hands in the
discharge of his duties, unless lost or destroyed through no fault of his
own, ib. 8. 7 and 10, along with fruits and interest, if to produce these
be its nature ; to restore, at the expiring of his commission, all that has
been entrusted to him; to give full accounts of his receipts and ex-
penditure to the mandator, and to allow the latter to exercise all rights
of action which, while acting in his behalf, he has acquired against third
persons.

The principal's remedy against the agent for the breach of any of these
duties was the actio mandati directa, condemnation in which entailed
infamia, Book iv. 16. 2 inf., though in Cod. 4. 35. 21 this effect is said,
to ensue only where the agent has been guilty of fraud : c£ Cic. pro
Rose. Am. 38 'mandati constitutum est iudicium non minus turpe
quam fiirti.'

454 INSTITUTIONUM LIBRI QUATTUOR. [Lib. Ilf.

9 Recte quoque mandatum contractum, si, dum adhuc in-
|10 tegra res sit, revocatum fuerit, evanescit. Item si adhuc
integro mandato mors alterutrius interveniat, id est vel eius
qui mandaverit, vel eius qui mandatum susceperit, solvitur
mandatum. sed utilitatis causa receptum est, si mortuo eo,
qui tibi mandaverit, tu ignorans eum decessisse exsecutus
fueras mandatum, posse te agere mandati actione: alioquin
iusta et probabilis ignorantia damnum tibi afferat et huic
simile est, quod placuit, si debitores manumisso dispensatore
Titii per ignorantiam liberto solverint, liberari eos : cum alio-
quin stricta iuris ratione non possent liberari, quia alii solvis-

By the actio mandati contraria the agent could compel the principal
to indemnify him (with interest, Dig. 17. i. 10. 9) for all reasonable ex-
penses incurred in the proper execution of his duties, ib. 3. 2, as also
against all liabilities which he had undertaken on his behalf, ib. 28. 38 :
cf. ib. 45. 3 *si iudicio te sisti promisero nee exhibuero, et antequam
praestem mandati agere possum ut me liberes : vel si pro te reus pro-
mittendi factus sim.' The mandator is also answerable for all culpa, and
must pay the honorarium, if any, which he has expressly or impliedly
promised. Dig. ib. 56. 3 : Cod. 4, 35. i : cf. § 13 inf. But the agent cannot
judicially enforce these duties if he has exceeded his instructions, unless
he is ready himself to bear the loss thereby sustained, § 8 supr., Dig. ib.
3. 2, or until he has performed, or at least is ready to perform, all that he
has undertaken. The liability of several joint mandators is solidary, Dig.
ib. 59. 3 : ib. 60. 2.

§ 9. By 'dum adhuc res Integra sit' is meant 'before the agent has
done anything in the execution of his commission,' *rpiy ap^jy rr\^ dyo-
paaias Theoph. When he had once taken action the mandate became
final, for the agent then had an interest in the performance of the duties
engendered by the contract: *si mandassem tibi ut fundum emeres,
postea scripsissem, ne emeres, tu antequam scias me vetuisse emisses,
mandati tibi obligatus ero, ne damno adficiatur is qui suscipit man-
datum* Dig. 17. I. 15.

§ 10. What is meant by saying that mandatum is dissolved by the
death of either party is that the obligatory relation does not descend to
their heirs, so far as any acts performed after the decease are concerned ;
rights and duties which have already come into existence under it are
not extinguished: 'inter causas omittendi mandati etiam mors man-
datoris est : nam mandatum solvitur morte : si tamen per ignorantiam
impletum est, competere actionem utilitatis causa dicitur. lulianus
quoque scripsit mandatoris morte solvi mandatum, sed obligationem
aliquando durare' Dig. 17. i. 26. pr. But a mandate is not extinguished
by the mandator's death, if it was to do something only after that event
had occurred: 'si servum ea lege tibi tradidero, ut eum post mortem
meam manumitteres, consistit obligatio' Dig. ib. 27. i.

Tit. 26.] DE MANDATO. 455

sent, quam cui solvere deberent. Mandatum non suscipere 11
liberum est : susceptum autem consummandum aut quam
primum renuntiandum est, ut aut per semet ipsum aut per
alium eandem rem mandator exsequatur. nam nisi ita re-
nuntiatur, ut integra causa mandatori reservetur eandem rem
explicandi, nihilo minus mandati actio locum habet, nisi si
iusta causa intercessit aut non renuntiandi aut intempestive
renuntiandi.

Mandatum et in diem differri et sub condicione fieri potest. 12*
In summa sciendum est mandatum, nisi gratuitum sit, in aliam 13
formam negotii cadere: nam mercede constituta incipit lo-
catio et conductio esse, et ut generaliter dixerimus : quibus
casibus sine mercede suscepto officio mandati aut deposit!
contrahitur negotium, his casibus interveniente mercede lo*
catio et conductio contrahi intellegitur. et ideo si fuUoni
polienda curandave vestimenta dederis aut sarcinatori sar-
cienda nulla mercede constituta neque promissa, mandati
competit actio.

§ IL Cf. Dig. 13. 6. 17. 3 'voluntatis est ... . suscipere mandatum,
necessitatis consummare.' An agent might with impunity throw up a
commission which he had once accepted only if (i) he had not proceeded
so far in its execution as to make it extremely inconvenient for the man-
dator to intervene in the business himself, or through some other subor-
dinate, Dig. 17. I. 22. II ; or (2) he had some good reason for the with-
drawal: 'ob subitam valetudinem, ob necessariam peregrinationem, ob
inimicitiam et inanes rei actiones, integra adhuc causa mandati, negotio
renunciari potest' Paul. sent. rec. 2. 15. i : cf. Dig. 17. i. 23-25.

A mandatum could also be terminated by agreement between principal
and agent, by completion of the business with which the latter was
entrusted, by lapse of the time for which he was appointed, by the fulfil-
ment of a resolutive condition on which his commission depended, and by
its execution becoming impossible through no fault of his own. Dig. 17.
I. 3- 2.

§ 13. Cf. Dig. 17. I. I. 4 'mandatum nisi gratuitum nullum est, nam
originem ex officio atque amicitia trahit : contrarium ergo est officio
merces.' This, however, is true only in theory, for Severus and Antoninus
provided that a promised honorarium might be exacted by appealing to
the extraordinaria cognitio of the magistrate : ' de salario quod promisit a
praeside provinciae cognitio praebebitur' Cod. 4. 35.1 : cf.Dig.17.1.7: but
' salarium incertae poUicitationis peti non potest* Cod. ib. 17 : cf. Dig. ib.
56. 3. The true test is whether the parties intended the remuneration to
be recoverable by action : if not, it will be mandatum : ' si remunerandi

456 INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

XXVIL

DE OBLIGATIONIBUS QUASI EX CONTRACTU.

Post genera contractuum enumerata dispiciamus etiam de
his obligationibus, quae non proprie quidem ex contractu
nasci intelleguntur, sed tamen, quia non ex maleficio sub-
1 stantiam capiunt, quasi ex contractu nasci videntur. Igitur
cum quis absentis negotia gesserit, ultro citroque inter eos
nascuntur actiones, quae appellantur negotiorum gestorum :
sed domino quidem rei gestae adversus eum qui gessit directa
competit actio, negotiorum autem gestori contraria. quas ex
nullo contractu proprie nasci manifestum est ; quippe ita nas-
cuntur istae actiones, si sine mandato quisque alienis n^otiis
gerendis se optulerit : ex qua causa ii quorum n^otia gesta
fuerint etiam ignorantes obligantur. idque utilitatis causa
receptum est, ne absentium, qui subita festinatione coacti
nulli demandata negotiorum suorum administratione peregre
profecti essent, desererentur negotia: quae sane nemo cura-
turus esset, si de eo quod quis impendisset nullam habiturus
esset actionem, sicut autem is qui utiliter gesserit negotia
habet obligatum dominum negotiorum, ita et contra iste quo-

gratia honor intervenit, erit mandati (not locati or conducti) actio ' Dig. ib.
6. pr.

The theoretically gratuitous nature of mandatum distinguishes it from
the other consensual contracts, which are all characterised by valuable
consideration. Dr. Walker remarks that its true place is midway between
the consensual and the real contracts ; it is not merely consensual, because
either party can withdraw from his engagement re integra; it is not
merely real, because the binding * res ' is not delivery, but either an act on
the part of the agent, or a forbearance on that of the principal : cf Hunter's
Roman Law p. 361.

Tit. XXVII. For the meaning of obligatio quasi ex contractu see p. 392
supr. : cf. Holland's Jurisprudence p. 163. The points in which the re-
lations here described, though not contractual, yet resemble contracts, are
(i) that they arise from lawful acts or events ; (2) that they produce civil
obligations, though this is not their immediate object. The Roman jurists
are fond of discovering analogies between them individually and the differ-
ent contracts proper; those described in §§ i and 4 have an affinity
with mandatum, those in §§ 3 and 4 with societas, and that in § 6 with
mutuum.

§ 1. The quasi-contractual relation of negotiorum gestio was of prae-

Tit 27.] DE OBLIGATIONIBUS QUASI EX CONTRACTU. 457

que tenetur, ut administrationis rationem reddat. quo casu
ad exactissimam quisque diligentiam compellitur reddere ra-
tionem : nee sufiicit talem diligentiam adhibere, qualem suis
rebus adhibere soleret, si modo alius diligentior commodius

torian origin : * ait praetor, si quis negotia alterius, sive quis negotia, quae
cuiusque cum is moritur fuerint gesserit, iudicium eo nomine dabo. Hoc
edictum necessarium est, quoniam magna utilitas absentium vertitur, ne
indefensi rerum possessionem aut venditionem patiantur, vel pignoris
distract ionem, vel poenae committendae actionem, vel iniuria rem suam
amittant' Dig. 3. 5. 3 pr. : ib. i. To constitute the relation it is necessary
that the business in which the gestor interferes should be some one's else
and not his own, Dig. ib. 6. 4 (no stress should be laid on ' absentes ' in
our text), and that his interference should not be grounded on any office or
express mandate on which he can sue ; if there has been a mandatum,
but no actio mandati lies, he can sue as negotiorum gestor, Dig. ib. 19. 2.
His duties are in substance the same as those of a commissioned agent,
for which see on Tit. 26. 8 supr. Those of the dominus negotii are mainly
to indemnify the gestor against all reasonable expenses, with interest, and
to guarantee him against all liabilities which he has incurred on his behalf.
Dig. ib. 10. pr. ; but the gestor could not enforce these duties by actio
contraria, unless

(i) The dominus had not prohibited his interference, Cod. 2. 19. 24.

(2) His own intention in undertaking the business had been to lay the
other under a legal obligation, * negotia eo animo gerit, ut aliquem sibi
obliget' Dig. 10. 3. 14. i ; so that if his object was his own sole advantage
he could sue the dominus only so far as the latter had derived material
benefit from his gestio, Dig. 3. 5. 6. 3. If he unwittingly interfered with
another person's business (e. g. as being a bona fide possessor) he could
assert his claim to compensation for reasonable outlay only by exceptio,
unless what he ' possessed ' was an hereditas, in which case he had an
action. Dig. ib. 49 ; 10. 13. 14. i ; ib. 29. pr.

(3) The state of the dominus' affairs was such that, except for the
foreign intervention, he would be seriously prejudiced, Dig. 44. 7. 5. pr. ;
if this is so, the gestor can recover even though the anticipated benefit as
a fact is not realized, or, as it is sometimes put, the negotia need not have
been utiliter gesta, it is enough if they were utiliter coepta, Dig. 3. 5. 10.
I ; ib. 12. 2. If the gestio was not thus warranted, but the gestor*s object
was to secure a great advantage for the dominus, he could recover only so
far as the advantage actually went, Dig. ib. 11 ; ib. 43.

Subsequent ratification of the gestio by the dominus transforms the re-
lation into mandatum according to Ulpian in Dig. 50. 17. 60, while Scae-
vola in Dig. 3. 5. 9 says that its character remains unaltered. The solution
of the antinomy is probably that after ratification the gestor can treat the
dominus as mandator, but the latter (ratification being merely a unilateral
act) is not entitled to treat the former as mandatarius.

458 JNSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

2 administraturus esset n^otia. Tutores quoque, qui tutelae
iudicio tenentur, non proprie ex contractu obligati intelle-
guntur (nullum enim negotium inter tutorem et pupillum
contrahitur) : sed quia sane non ex maleficio tenentur, quasi
ex contractu teneri videntur. et hoc autem casu mutuae sunt
actiones : non tantum enim pupillus cum tutore habet tutelae
actionem, sed et ex contrario tutor cum pupillo habet con-
trariam tutelae, si vel impendent aliquid in rem pupilli vel
pro eo fuerit obligatus aut rem suam creditori eius obligaverit.

3 Item si inter aliquos communis sit res sine societate, veluti
quod pariter eis legata donatave esset, et alter eorum alteri
ideo teneatur communi dividundo iudicio, quod solus fructus
ex ea re perceperit, aut quod socius eius in eam rem neces-
sarias impensas fecerit : non intellegitur proprie ex contractu
obligatus esse, quippe nihil inter se contraxerunt : sed quia
non ex maleficio tenetur, quasi ex contractu teneri videtun

4 Idem iuris est de eo, qui coheredi suo familiae erciscundae

§ 2. Cf. Bk. i. 20 supr. and note. The duties which the pupillus could
enforce against the guardian by actio tutelae directa were, in general, those
of maintaining the full value of his property, and to a certain extent even
of increasing it. The guardian was bound to keep it in good order and
condition. Cod. 5. 37. 22, 3 and 4, and to sell such parts of it as were liable
to spoil ; to call in all doubtful debts, Dig. 26. 7. 15 ; if the property consisted
mainly of money, to lay it out on land, ib. 3. 2, or at interest, ib. 7. 3 ; and
if he used any of it for his own purposes, the rate of interest which he had
to pay was the highest allowed by law, ib. 7. 10 and 12 ; to duly conduct
all necessary suits on the ward's behalf, ib. i, 3 and 4, and in the discharge
of all these duties to exercise at least that degree of care which he showed
in his own affairs, i. e. he was answerable for culpa levis in concreto. Dig.
27. 3. I. pr. This would be of importance where the ward was instituted
heir, or left a legacy or fideicommissum. Dig. 26. 7. 39. 3.

§ 8. This is called by the commentators communio incidens : cf. Dig.
17. 2. 31 ' cum non af&ctione societatis incidimus in communionem.' The
rights and duties of the colegatees, codonees, etc., inter se resemble those
of partners, for which see on Tit. 25. 9 supr.

§ 4. Each of two or more coheirs, if they could not make a satis-
factory partition by agreement, could compel a judicial division of the
inheritance by the actio familiae erciscundae, in which the judge also
adjusted all claims which each had acquired against the rest while
their coheir, (e.g. by paying debts, management, etc.), during which
time their rights and duties inter se are substantially the same as
those of partners.

Tit. 27.] DE OBLIGATIONIBUS QUASI EX CONTRACTU. 459

iudicio ex his causis obligatus est. Heres quoque legatorum 5
nomine non proprie ex contractu obligatus intellegitur (neque
enim cum herede neque cum defuncto uUum negotium lega-
tarius gessisse proprie dici potest) : et tamen, quia ex maleficio
non est obligatus heres, quasi ex contractu debere intellegitur.
Item is, cui quis per errorem non debitum solvit, quasi ex 6
contractu debere videtur. adeo enim non intellegitur proprie
ex contractu obligatus, ut, si certiorem rationem sequamur,
magis ut supra diximus ex distractu, quam ex contractu possit
dici obligatus esse : nam qui solvendi animo pecuniam dat,
in hoc dare videtur, ut distrahat potius negotium quam con-
trahat sed tamen proinde is qui accepit obligatur, ac si
mutuum illi daretur, et ideo condictione tenetur. Ex qui- 7
busdam tamen causis repeti non potest, quod per errorem
non debitum solutum sit. sic namque definiverunt veteres:
ex quibus causis infitiando lis crescit, ex his causis non de-
bitum solutum repeti non posse, veluti ex lege Aquilia, item
ex legato, quod veteres quidem in his legatis locum habere
voluerunt, quae certa constituta per damnationem cuicumque
fuerant legata : nostra autem constitutio cum unam naturam
omnibus legatis et fideicommissis indulsit, huiusmodi aug-
mentum in omnibus legatis et fideicommissis extendi voluit :
sed non omnibus legatariis praebuit, sed tantummodo in his
legatis et fideicommissis, quae sacrosanctis ecclesiis ceteris-
que venerabilibus locis,. quae religionis vel pietatis intuitu
honorificantur, derelicta sunt, quae si indebita solvantur, non
repetuntur.

§ 6. In Gaius ii. 35 and 36, the aditio of the hereditas, which creates
this quasi-contractual relation between heirs and legatees, is itself called
obligatio. Where the res legata was specific property of the testator's
own, the legatee had a right in rem, and could recover it by vindicatio :
see p. 293 supr.

§ 6. Cf. Tit. 14. I and notes, supr.

§ 7. The cases of lis crescens enumerated by Gaius in iv. 9 and 171 are
the actiones iudicati, depensi (note on Tit 20. pr. supr.) damni iniuria ex
lege Aquilia, and that for the recovery of a legatum per damnationem.
Besides claims for legacies ad pias causas (for which cf. Bk. iv. 6. 19 inf.),
we must add the actions on depositum miserabile (note on Tit. 14. 3 supr.)
Bk. iv. 6. 26 inf. ; on a bond whose authenticity is denied by the giver,
Nov. 18. 8, and under some circumstances the actio redhibitoria, Dig. 21.

460 INSTITUTIONUM UBRI QUATTUOR. [Lib. III.

XXVIII.

PER QUAS PERSONAS NOBIS OBLIGATIO ADQUIRITUR.

Expositis generibus obligationum, quae ex contractu vd
quasi ex contractu nascuntur, admonendi sumus adquiri vobis
non solum per vosmet ipsos, sed etiam per eas quoque per-
sonas, quae in vestra potestate sunt, veluti per servos vestros
et filios : ut tamen, quod per servos quidem vobis adquiritur,
totum vestrum fiat, quod autem per liberos, quos in potestate
habetis, ex obligatione fuerit adquisitum, hoc dividatur se-
cundum imaginem rerum proprietatis et usus fructus, quam
nostra discrevit constitutio : ut, quod ab actione commodum
perveniat, huius usum fructum quidem habeat pater, proprietas
autem filio servetur, scilicet patre actionem movente secundum

1 novellae nostrae constitutionis divisionem. Item per liberos
homines et alienos servos, quos bona fide possidetis, adqui-
ritur vobis, sed tantum ex duabus causis, id est si quid ex

2 opens suis vel ex re vestra adquirant. Per eum quoque

I. 45. The reason why condictio indebiti is excluded in these cases has
been pointed out on p. 396 supr. If the condictio had been allowed, the
double damages need never be incurred ; the defendant would pay the
simplum, and then practically deny his liability by disputing the correct-
ness of the payment in condictio indebiti, failure in which would leave him
no worse off than he was before.

Tit. XXVIIL Obligatio in this Title means a right arising ex contractu :
it tells us who takes the benefit of a contract made by a filiusfamilias, slave,
or free man bona fide serviens : cf. Tit. 17 supr. The converse question,
how far the superior is bound by their promises, is treated in Bk. iv.
7 inf.

For the * divisio rerum proprietatis et ususfructus ' see on Bk. ii. 9. pr.
supr. The profit arising from the contracts of a filiusfamilias was not
necessarily divided in this manner. If he had only castrense or quasi-
castrense peculium, it was all his own, and on such contracts he could sue
in person. Dig. 14. 6. 2. If his peculium was profectitium only, it was all
the father's ; if he had adventitium as well, the father had a usufruct in
the commodum obligationis in the ratio which it bore to the other peculia
*quae adquisitionem eflfugiunt' Cod. 6. 61. 6. The action on these con-
tracts must be brought in the father's name, but the son might conduct
them as his attorney ; for other exceptional cases in which the filiusfamilias
had a right of action see p. 128 supr.

§ 1. Cf. Bk. ii. 9. 4 and notes, supr.

§ 2. The slave in whom one has a usus is not mentioned above in Bk.

Tit 29.] QUIBUS MOD IS 0 BUG AT 10 TOLUTUR. 461

servum, in quo usum fructum vel usum habetis, similiter ex
duabus istis causis vobis adquiritur. Communem servum pro 3
dominica parte dominis adquirere certum est, excepto eo,
quod uni nominatim stipulando aut per traditionem acci-
piendo illi soli adquirit, veluti, cum ita stipuletur: *Titio
domino meo dare spondes ? ' sed si unius domini iussu scrvus
fuerit stipulatus, licet antea dubitabatur, tamen post nostram
decisionem res expedita est, ut illi tantum adquirat, qui hoc
ei facere iussit, ut supra dictum est.

XXIX.

QUIBUS MODIS OBLIGATIO TOLLITUR.

ToUitur autem omnis obligatio solutione eius quod debetur,
vel si quis consentiente creditore aliud pro alio solvent nee
tamen interest, quis solvat, utrum ipse qui debet an alius pro

ii. 9. 4, and what is said here, that all commodum arising ex operis suis
accrues to the person having the use, seems irreconcileable with Dig. 7.
8. 14. pr. ' per servum usuarium si stipuler vel per traditionem accipiam,
an adquiram, quaeritur, si ex re mea vel ex operis eius, et si quidem ex
operis eius, non valebit, quoniam nee locare eius operas possumus ; sed
si ex re mea, dicimus servum usuarium stipulantem vel per traditionem
accipientem mi hi adquirere, cum hac opera eius utar.' The truth seems
to be that the benefit of any contract made by a slave ex re usuarii
vested in the latter, though he could not let out the slave's services : if
the latter let them out himself the merces could be claimed by the
usuary.

§ 3. Cod. 4. 27. 2 ; cf. Tit. 17. 3 and notes supr.

Tit XX TX. After describing how obligations may arise ex contractu
and quasi ex contractu, Justinian proceeds to show how they are dis-
charged. Here the metaphor by which their creation is so vividly pre-
sented is consistently continued : an obligation is dissolved by the untying
of the knot by the tying of which it was imposed, the general term em-
ployed being solvere, in the sense of loosing or releasing : * solvisse acci-
pere debemus non tantum eum, qui solvit, verum omnem omnino qui ea
obligatione liberatus est, quae ex causa iudicati descendit ' Dig. 42. i. 4. 7,
'solvere dicimus eum, qui id facit quod facere promisit' Dig. 50. 16. 176,
' solutionis verbum pertinet ad omnem liberationem quoquo modo factam,
magisque ad substantiam obligationis refertur quam ad nummorum solu-
tionem' Dig. 46. 3. 54. In connection with the different classes of con-
tracts indeed the jurists love the conceit, that to the causa by which the
obligatio is engendered in each of them respectively there should be
a peculiarly corresponding mode of release : 'nihil tarn naturale est quam

462 INSTITUTIONUM LIBRI QUATTUOR. [Lib. III.

eo : liberatur enim et alio solvetite, sive sciente debitore sive
ignorante vel invito solutio fiat, item si reus solverit, etiam

eo genere quidque dissolvere quo colligatum est Ideo verborum obligatio
verbis tollitur ; nudi consensus obligatio contrario consensu dissolvitur '
Dig. 50. 17. 35 ; cf. Dig. 46. 3. 80. Obligations incurred literis (Excursus
VIII inf.) could apparently be extinguished by the creditor's entering the
receipt of an equivalent sum from the debtor on the opposite page of the
ledger (accepti relatio : cf. Gains iv. 64) ; and Gains tells us (iii. 173-5)
that debts incurred in mancipation form or by judgment were properly
dissolved by a corresponding nexi liberatio, a ' species imaginariae solu-
tionis per aes et libram/ employed even in his own day to acknowledge
payment of judgment debts and legata per damnationem ; see Poste's
Gains pp. 443> 672.

But a more important distinction between the modes in which obliga-
tions may be invalidated or rendered ineffectual, not alluded to in this
Title, is the following. To some events the law attaches the effect of
altogether extinguishing the obligatio ; it ceases to exist, and there is no
longer any vinculum iuris between the parties ; the obligatio, as it is said,
ipso iure tollitur, perimitur, evanescit. Under the older law, unless it was
discharged in this manner, an obligation was altogether unaffected ; so
that (e. g.) if a solemn form of payment was prescribed which the debtor
did not observe, he could be sued and forced to pay again. But later a
new mode arose in which a debtor could defeat his creditor ; though he
could not deny the existence of the obligatio, he might himself have a
right which he could set up against that of the other, whereby his claim, if
asserted by legal process, could be successfully repelled ; ipso iure, the
obligatio still subsists, but it is rendered inoperative, and in effect can*
celled, by the counter right of the debtor, or, as it is said, ope exceptionis
actor summovetur, removetur, expellitur, excluditur ; he is kept at bay
by the plea of the defendant The processual significance of exceptiones
is treated in the notes to Bk. iv. 13 inf. ; here all that need be considered
is their operation. In some cases this is stronger and more potent than
in others ; in some the plea will avail at all times and under all circum-
stances, in others it wiU be only temporary (Bk. iv. 13. 8-1 1 inf.). Those
which have the stronger effect practically (though not in form) extinguish
the obligation, or, as Mr. Poste puts it, they neutralize naturalis as well
as civilis obligatio, as is shown by the fact that if the debtor pays by mis-
take he can recover by condictio indebiti ; ' indebitum autem solutum
accipimus non solum si omnino non debeatur, sed et si per aliquam ex-
ceptionem peti non poterat ; quare hoc quoque repeti poterit, nisi sciens
se tutum exceptione solvit ' Dig. 12. 6. 26. 3, ' adeo autem perpetua exceptio
parit condictionem, ut lulianus scripsit, si emptor fundi damnaverit here-
dem suum ut venditorem nexu venditi liberaret, mox venditor ignorans rem
tradiderit, posse eum fundum condicere, idemque et si debitorem suum
damnaverit liberare et ille ignorans solverit ' Dig. ib. 7. Among excep-
tions with this greater potency are exceptio pacti, Dig, ib, 40. 2 ; exceptio

Tit 29.] QUIBUS MODIS OBLIGATIO TOLLITUR. 463

ii qui pro eo intervenerunt Hberantur. idem ex contrario con-
tingit, si fideiussor solvent : non enim solus ipse liberatur, sed

doll, ib. 65. I ; and exceptio metus, Dig. 12. 5. 7 ; and their protection is
so nearly on a par with that of extinction ipso iure that it is said in Dig.
50. 17. 112 'nihil interest ipso iure quis actionem non habeat, an per ex-
ceptionem infirmetur;' cf. Dig. 40. 12. 20. 3 'obligatum accipere debe-
mus, qui exceptione se tueri non potest ; ceterum si potest, dicendum non
esse obligatum.' Those exceptions which have only the weaker effect,
though they prevent the creditor from succeeding in an action, yet leave
the obligatio subsisting naturaliter, with all or most of the incidents
which characterise such relations (Excursus V inf.). As a general
rule every exceptio will have the stronger efficacy if based upon the
ius gentium and natural equity : ' desinit debitor esse is, qui nactus
est exceptionem iustam nee ab aequitate naturali abhorrentem' Dig.
50. 17. 66.

Thus the distinction between extinction ipso iure, and invalidation ope
exceptionis, is not one of degree, for some exceptions produce an effect
undistinguishable from extinction ; it consists in the mode of their
operation. A right extinguished ipso iure can never recover its vitality ;
but, given an event which operates only ope exceptionis, i. e. confers a
countervailing right on the debtor, the obligatio still subsists, and should
the debtor's right be itself destroyed, will once more become enforceable,
and recover its original value. In the first case only a new right can
come into existence, which implies that all the conditions ordinarily
required for the creation of an obligation must be satisfied, so that a
mere renunciation by the debtor of the benefit which has accrued to him
in the destruction of the creditor's right will not reestablish the creditor
in statu quo unless such renunciation suffices in the particular case for
the creation of an obligatio; 'si pactum conventum tale fuerit, quod
actionem [ipso iure] toUeret, velut iniuriarum, non poterit, postea pacis-
cendo ut agere possit, agere, quia et prima actio sublata est, et posterius
pactum ad actionem reparandam inefficax est ... . idem dicemus et in
bonae fidei contractibus, si pactum conventum totam obligationem sus-
tulerit, veluti empti, non enim ex novo pacto prior obligatio resuscitatur,
sed proficiet pactum ad novum contractum ' Dig. 2. 14. 27. 2. But in the
second case it would be otherwise; the old right is not destroyed, but
only balanced by a colliding or countervailing right in the' debtor ; and if
the latter right is in any way extinguished, even by mere waiver, the
former will recover aH its original force : * pactus ne peteret, postea con-
venit ut peteret. Prius pactum per posterius elidetur ; non quidem ipso
iure, sicut stipulatio toUitur per stipulationem, si hoc actum est, quia in
stipulationibus ius continetur, in pactis factum versatur, et ideo replica-
tione (Bk. iv, 14 inf.) exceptio elidetur' Dig. loc cit.

In this Title Justinian touches only upon those modes in which obliga-
tions are extinguished ipso iure and absolutely ; this is the meaning of
the word ' tollitur/ which apparently is not used when the creditor's right

464 INSTITUTIONUM UBRI QUATTUOR. [Lib. III.

1 etiam reus. Item per acceptilationem tollitur obligatio. est
autem acceptilatio imaginaria solutio. quod enim ex ver-
borum obligatione Titio debetur, id si velit Titius remittere,
poterit sic fieri, ut patiatur haec verba debitorem dicere :
'quod ego tibi promisi habesne acceptum?' et Titius re-
spondeat 'habeo:' sed et Graece potest acceptum fieri, dum-
modo sic fiat, ut Latinis verbis solet: lyjtis Xap^p hrivipia
Toa-a; Ixo) ka^dv, quo genere ut diximus tantum eae obli-
gationes solvuntur, quae ex verbis consistunt, non etiam ce-
terae: consentaneum enim visum est verbis factam obliga-

is merely deprived of its efficacy ope exceptionis. This treatment, how-
ever, is open to the criticism that, if it is intended to relate to the modes
in which all obligations may be dissolved, it is wrongly placed, its proper
position being between Titles 5 and 6 of Book iv., and also omits one
important mode in which some obligations ex delicto could be ex-
tinguished ; while, if it purports to describe only the discharge of con-
tractual obligation, it is pro tanto inadequate, and even on that supposition
inexhaustive ; yet this seems to be what was in fact intended by Gaius,
whom Justinian here follows closely.

The effect of datio in solutum, the payment of aliud pro alio with the
creditor's consent, was in Gaius' time (iii. 168) matter of dispute. The
Sabinians (whom Justinian follows) held that it operated ipso iure, the
Proculians, that it only gave rise to an exceptio doli if an action were
subsequently brought on the debt. The creditor must take * aliud pro
alio ' nolens volens if it becomes impossible to discharge the obligation
in the proper way without the debtor's default, and at the same lime
without entirely releasing the latter; e.g. where the obligation is to
convey a res aliena which the owner will not sell (Dig. 30. 71. 3) he must
accept its value. By Nov. 4. 3 Justinian enacted that if a person was
absolutely unable to pay a money debt, he might compel the creditor to
select an equivalent firom his property, provided he gave security against
eviction.

Solutio must be made to either the creditor in person or his agent ;
guardians and persons solutionis causa adiecti (e. g. mihi aut Titio dare
spondes ? Tit. 19. 4 supr.) were regarded as his mandataries. If the
debtor was unable to pay the creditor, either because he could not find
him, or because the latter refused to accept payment, or from uncertainty
as to who his real creditor was, he could release himself by deposit in
court. Cod. 8. 43. 9. Payment by the fideiussor released the principal
only if the former had not previously procured an assignment to him-
self of the creditor's rights against him (p. 427 supr.). If the suretyship
took the form of mandatum it was never so, Dig. 17. i. 28 : cf. note on
Tit. 26. 5 supr.

§ 1. Acceptilatio is a formal acquittance from an obligation incurred by

Tit. 39-] QUIBUS MODIS OBUGATIO TOLUTUR. 465

tionem posse aliis verbis dissolvi : sed id, quod ex alia causa
debetur, potest in stipulationem deduci et per acceptilationem
dissolvi. sicut autem quod debetur pro parte recte solvitur,
ita in partem debiti acceptilatio fieri potest. Est prodita2
stipulatio, quae vulgo Aquiliana appellatur, per quam stipu-
lationem contingit, ut omnium rcrum obligatio in stipulatum
deducatur et ea per acceptilationem tollatur. stipulatio enim
Aquiliana novat omnes obligationes et a Gallo Aquilio ita
composita est : ' quidquid te mihi ex quacumque causa dare
facere oportet oportebit praesens in diemve quarumque rerum
mihi tecum actio quaeque abs te petitio vel adversus te per-,
secutio est erit quodque tu meum habes tenes possides possi-
deresve dolove malo fecisti, quo minus possideas: quanti
quaeque earum rerum res erit, tantam pecuniam dari stipu-
latus est Aulus Agerius, spopondit Numerius Negidius.' item
e diverso Numerius Negidius interrogavit Aulum Agerium :
* quidquid tibi hodiemo die per Aquilianam stipulationem
spopondi, id omne habesne acceptum?' respondit Aulus

stipulation, perhaps employed for security's sake even where the debt
was otherwise discharged (e. g. by payment), and not only (as the text
suggests) when a gratuitous release was intended. Its specialisation to
the extinction of obligations incurred verbis is alluded to in Terence,
Adelph. 2. I. 10 'neque tu verbis solves unquam, quod mihi re male
feceris.' Whether an acceptilatio in partem debiti was valid had been
disputed in Gaius' time, iii. 172. Justinian's statement of the law must
be taken subject to the distinction drawn by Ulpian: *si id, quod in
stipulationem deductum est, divisionem non recipiat, acceptilatio in
partem nullius erit momenti, ut puta si servitus fuit praedii rustici vel
urbani. Plane si ususfructus sit in stipulationem deductus, puta fundi
Titiani, potent pro parte acceptilatio fieri et erit residuae partis fundi
ususfructus: si tamen viam quis stipulatus accepto iter vel actum
fecerit, acceptilatio nullius erit momenti' Dig. 46. 4. 13. i. The words
'ut diximus' in this section are taken from Gaius iii. 170, and apparently
refer to some passage in his Institutes which has not come down to us,
or perhaps to one of his other works.

§ 2. As is said in the preceding section, a debt incurred in any way
whatsoever could be transformed by novatio into a verbal obligation and
then released by acceptilatio. To Gallus Aquilius (note on Bk. ii. 13. i
supr.) must be awarded the merit of having devised a formula by which
all obligations in which one and the same person was debtor, and
another and the same creditor, could be embraced in a single novatio,
and thereby be converted into a single obligation, which could then, if re-

Hh

466 INSTITUTIONVM LIBRI QUATTUOR. [Lib. III.

SAgerius: 'habeo acceptumque tuli/ Praeterea novatione
toUitur obligatio. velutt si id, quod tu Seio debeas, a Titio
dari stipulatus sit nam interventu novae personae nova
nascitur obligatio et prima toUitur translata in posteriorem,
adeo ut interdum, licet posterior stipulatio inutilis sit, tamen
prima novationis iurc toUatur. veluti si id, quod Titio tu
debebas, a pupillo sine tutoris auctoritate stipulatus fuerit,
quo casu res amittitur : nam et prior debitor liberatur et pos-
terior obligatio nulla est. non idem iuris est, si a servo quis
stipulatus fuerit : nam tunc prior proinde obligatus manet, ac
si postea a nullo stipulatus fuisset. sed si eadem persona
sit, a qua postea stipuleris, ita demum novatio fit, si quid in
posteriore stipulatione novi sit^ forte si condido aut dies aut
iideiussor adiciatur aut detrahatur. quod autem diximus, si

quired, be released in this manner. This, however, was not always the
object of the Aquilian stipulation, which, it is clear, was not unfrequendy
employed as a comprehensive novation, the duties created by which were
intended to be, not released, but performed, Paul sent. rec. i. i. 3, Cod.
2. 4. 3, Dig. 2. 15. 2 ; ib. 9. 2. In the stipulation itself, as here presented
to us, the following possible claims are comprised : those arising from
contracts whether stricti iuris or bonae fidei (dare, facere), whether present
or future (oportet, oportebit), and whether exisdng and actionable at once,
or exisdng but not yet actionable (praesens in diemve); those enforce-
able by real (petitio) as well as by personal action (acdo), whether now
(est) or in the future (erit), and by extraordinaria cognitio (persecutio) no
less than by ordinary action at law, and whether the promisor has merely
detention (habes, tenes) or has or has had civil possession (possides,
possedisti). The omission of the word praestare in the form of personal
action (dare facere oportet) possibly shows that the author did not intend
to include obligations arising ex delicto ; and the phrase ' dolove malo
fecisti quominus possideas' refers to the dominus' real action against
a person who had fraudulently destroyed or conveyed away a res aliena.
This was first given by the SC. Juventianum, Dig. 5. 3. 2a 6 ; 6. i. 27. 3,
so that the words cannot have formed part of the original Aquilian stipu-
lation, and do not even appear in the form of it given by Florentinus in
Dig. 46. 4. 18. I. In the acceptilatio of Justinian's text the words 'accep-
tumque tuli ' are superfluous (see § i) and must not be taken to refer in
any way to the literal contract or any other system of accounts. As Mr.
Poste remarks, the narrative form (stipulatus est, spopondit, interrogavit),
in which the transaction is expressed by Justinian, properly belongs, not
to the stipulation and acceptilation, but to the cautio in which they are
embodied or recorded.
§ 8. *' Novatio est prioris debit! in aliam obligationem vel civilem vel

Tit. 29.] QUIBUS MODIS OBLIGATIO TOLLITUR. 467

condicio adiciatur, novationem fieri, sic intdlegi oportet, ut
ita dicamus factam novationem, si condicio extiterit : alioquin
si defecerit, durat prior obligatio. Sed cum hoc quidem
inter veteres constabat tunc fieri novationem, cum novandi
animo in secundam obligationem itum fuerat : per hoc autem
dubium erat, quando novandi animo videretur hoc fieri et
quasdam de hoc praesumptiones alii in aliis casibus intro-
ducebant : ideo nostra processit constitutio, quae apertissime
definivit tunc solum fieri novationem, quotiens hoc ipsum
inter contrahentes expressum fuerit, quod propter novationem
prions obligationis convenerunt, alioquin manere et pristinam
obligationem et secundam ei accedere, ut maneat ex utraque
causa obligatio secundum nostrae constitutionis definitiones,

naturalem transfiisio atque translatio, hoc est, cum ex praecedenti causa
ita nova constituatur, ut prior perimatur' Dig. 46. 2. i. pr. ; novation is
the extinction of one obligation by the substitution for it of another.
Originally it could take place in two ways, transcriptio (Excursus VIII
inf.) and stipulatio ; but in Justinian's time, and probably in that of Gaius
(iii. 176), the latter was the only means available for the purpose. The
end in view in a novation may be either to change one of the parties to
the subsisting obligation, or to modify its terms, or, without changing the
parties, to alter its nature by converting a real or consensual into a verbal
obligation. The first of these ends is illustrated in the text by the words
veluti si id ... in posteriorem ; the others, by the paragraph commencing
sed si eadem persona ....

The parties may be changed in two ways. Firstly, the creditor
may be changed, the amount and terms of the debt remaining the same.
Thus, if A owes B 5/., and C (with B's consent) stipulates from A for
payment of that debt to himself, A's debt to B is extinguished. The
same effect might be produced, though with a technical difference of
remedy, without novation, by B's assigning his rights against A to C,
Gaius ii. 38, 39, Excursus V inf. Secondly, the debtor might be changed,
the creditor remaining the same. Thus, if under the circumstances
supposed, B stipulated from C for payment to himself of the 5/. which A
owed him, A's debt to B would be cancelled. If this was done with A's
assent, it is usually called delegatio ; if not, expromissio ; but see Poste's
Gaius p. 670.

It is immaterial whether the obligation which is novated be civilis or
merely naturalis : its extinction involves that of all rights which were
accessory to it, such as guaranties, hypothecs, claims for interest and
penalties, etc.. Dig. 46. 2. 15 ; ib. 18; ib. 27 ; ib. 29. So too, as is said
in the text, the obligation created by the novating contract will ex-
tinguish the old one even though it be natural only, i. e. for some reason

Hh a

468 INSTITUTIONUM LIBRI QUATTUOR. [Lfl). III.

4 quas licet ex ipsius lectione apertius cognoscere. Hoc am-
pliu3 eae obligationes, quae consensu contrahuntur, contraria
voluntate dissolvuntur. nam si Titius et Seius inter se con-
senserunt, ut fundum Tusculanum emptum Seius habcret
centum aureorum, deinde re nondum secuta, id est neque

or other not enforceable by action. But two obligations are essential ;
if there is not one to novate, the attempted novation is null ; if there is
one to novate, but the novating contract is void (e. g. ' si id quod tu mihi
debeas, a peregrino, cum quo sponsus communio non est, spondes verbo
stipulatus sim' Gains iii. 179), the former is altogether unaffected.

The promise of a slave ordinarily created a natural obligation, and
consequently, as Servius Sulpicius argued (Gains, loc. cit.), it is hard to
see why it should have no novative effect ; the explanation given by
Theophilus is in iroic! tfofiariowa ov fi6»op t6 riKT^a'dai (l>v<riKifv tvox^v^ dWh
Kal t6 {iTTitvai np6a'€onop' airp6a€nrog dc 6 doOXor.

The rule that, if the parties to the new contract are the same, a
novation ensues only if it contains ^novi quid,' holds only where the
novated obligation was itself verbal. If it had been otherwise, novation
would have been disabled from discharging one of its most valued
functions, viz. the substitution of obligations pursued by actions strict!
iuris for obligations enforceable only by actio ex fide bona. The Procu-
lians were of opinion that the adiectio or detractio of a surety in the new
contract was not sufficient to support a novation, Gains iii. 178.

For condicio and dies see on Tit. 15. 2 and 4 supr.

Servius Sulpicius had held that a conditional stipulation novated an
unconditional contract whether the condition was fulfilled or not. Gains
(iii. 179) thought that the old contract subsisted until the condition of the
new one was fulfilled, but suggests that if the creditor sued upon it before
such fulfilment he might be met by exceptio doli or pacti, and this was
soon recognised as law, Dig. 33. 3. 50; ib. 83; 12. i. 36; though Labeo
(Dig. 23. 3. 80) had thought otherwise.

Among the praesumptiones or evidence upon which the jurists relied
to prove that there was animus novandi was, according to the Sabinian
school, the addition of a surety (cf. Dig. 2. 14. 30. i) ; for the presumptions
against such intention see Dig. 46. 2. 6. pr. and i. ; 45. i. 58. Justinian's
own enactment is in Cod. 8. 42. 8 ; his statement that, unless the inten-
tion to novate was express (' nisi ipsi specialiter remiserint quidem priorem
obligationem et hoc expresserint, quod secundam magis pro anterioribus
elegerint' Cod. loc. cit.), the two obligations should subsist side by side is
apparently subject to the qualification that when one was fulfilled the
other was ipso facto extinguished ; see Dig. 46. 2. 8. 5.

§ 4. When the res was no longer Integra, an agreement between the
parties to be off their bargain did not merely extinguish the obligation :
it rather operated as a new contract which bound the one in whose
favour performance had taken place to restore the other in statum quo,

Tit, 29.] QUIBUS MODIS OBLIGATIO TOLLITUR. 469

pretio soluto neque fundo tradito, placuerit infer eos, ut dis-
cederetur ab emptione et venditione, invicem libcrantur. idem

but which was unable to injuriously afTect rights acquired under the
previous contract by third persons : * [re secuta] non tam hoc agitur, ut a
pristino negotio discedamus, quam ut novae obligationes constituantur '
Dig. 2. 14. 58.

Among the modes 'quibus obligatio tollitur' described by Gaius is
the commencement of an action, litis contestatio, which, if the action
were a indicium legitimum, and the formula was in ius concepta, pro-
duced a quask-novative effect, termed by the commentators novatio
necessaria ; the very delivery of the formula in the action by the praetor
to the index extinguished the defendant's debt, and sttbstituted for it
a new obligation, viz. the legal liability to be condemned if the plaintiff
proved his case, Gaius iii. 180, i8t : iv. 107. It differed, however, in its
operation from novatio proper (novatio voluntaria), for it left the original
obligation subsisting naturaliter. Dig. 12. 6. 60. pr., and, as a consequence,
did not destroy accessory rights, such as guaranties, hypothecs, etc.,
Dig. 46. 2. 29. Of this process-consumption, as it is called, there are
still traces in the Corpus iuris, but the general rule under Justinian is
that litis contestatio no longer extinguishes the creditor's right, Bk. iv.
13. 10 inf., Cod. 3. I. 13. 2 and 5 ; 3. lo. i. pr. It must indeed have
ceased to extinguish it ipso iure with the disappearance of indicia legitima
under Diocletian, a.d. 294; but now indeed it no longer enables it to
be counteracted ope exceptionis; an obligatio is destroyed, not by the
bringing of an action, but only by its adjudication, so that we cease to
read of the exceptio rei in indicium deductae, which is swallowed up
in the exceptio rei iudicatae. Cod. 8. 41. 28 : see on Bk. iv. 13. 5 inf.
Novatio necessaria is also said by Gaius to be produced by judgment,
sententia, res iudicata; for its effects, which do not belong here, see
Poste's Gaius p. 447.

Among modes of extinction operating ipso iure, which are not here
noticed by Justinian, are physical impossibility of performance arising
ex post facto without default of the debtor. Dig. 46. 3. 92 ; ib. 98. 8 ; ib.
107 : cf. note on Tit 19. i supr. ; and in some cases death of one of the
parties to the contract, as in societas (Tit. 25. 5 supr.) and mandatum,
(Tit. 26. 10 supr.): cf. Gaius iii. 120, Dig. 4. 8. 32. 3, and Bk. iv. 12.
I inf., which is important for a large class of obligations arising ex
delicto. The operation of compensatio (set-off) is a matter of some
little difficulty : see on Bk. iv. 6. 30 inf. Confiisio (p. 287 supr.) operated
in this way if the deceased's heir was the sole debtor or sole creditor to
the obligation in question, because one of the prime requirements of an
obligatio, two persons, is no longer satisfied, Dig. 46. 3. 95. 2 ; but this
would be exemplified under Justinian only when the heres, being debtor
or creditor of the deceased, did not make an inventory, see p. 289 supr.
Where the heir was one of two or more correal or solidary debtors or
creditors of the deceased it was otherwise : see Dig. 46. I. 71. pr. cited
in Excursus VII. inf.

470 INSTITUTIONUM LIBRI QUATTUOR.

est et in conductione et locatione et omnibus contractibus,
qui ex consensu descendunt, sicut iam dictum est.

Of modes of invalidation whose effect is produced only ope exceptionis
the most common are limitation (Bk. iv. 12. pr. and notes, inf.), capitis
deminutio (note on Tit. 10. 3 supr.), beneficium competentiae arising
upon a cessio bonorum (p. 391 supr.), and waiver or pactum de non
petendo (Bk. iv. 13. 3 inf.) if absolute, Le. not binding for a time only, or
conferring rights upon the debtor only and not upon his heir. An in-
formal acceptilatio was construed as a pactum de non petendo, if the
creditor's intention was really to release the debtor, Dig. 2. 14. 27. 9.
The obligations involved in the actiones furti and iniuriarum were
dissolved ipso iure by agreement not to sue, Dig. 2. 14. 17. i. Transactio
or compromise, by which two parties who affirm that they each have
claims against the other mutually surrender somewhat of their alleged
rights in order to remove uncertainty and narrow the issues, implied
a pactum de non petendo. Cod. 2. 4. 17 ; ib. 24. The same result ensued
from compromissum, an agreement to refer a dispute to arbitration.
Dig. 4. 8. 13. I.

EXCURSUS IV.

ORIGIN AND DEVELOPMENT OF BONORUM POSSESSIO.

Serious speculation on this subject commenced about a century
since with Hugo, who held that bonorum possessio was in origin
the system applied in the succession to aliens by the praetor pere-
grinus, from whose edict it was gradually transferred to that of his
urban colleague. But this, though at first sight an attractive hypo-
thesis, seems untenable on account of the tenderness which the
praetor almost ostentatiously showed for the civil law and the
agnatic conception of kinship : a gentile system of inheritance
would more probably have been based on cognation only. Niebuhr
connected bonorum possessio with the possession of ager publicus
(p. 340 supr.), with the succession to which alone he thought it was
originally concerned ; but his view is inconsistent with the very name
bonorum possessio, and has practically nothing in its favour. A
third theory, which originated in 1837 with Fabricius, finds the germ
of the institution in the judicial regulation of Possession as pre-
liminary to an hereditatis petitio, which was tried in the centumviral
court by the procedure of sacramentum, and of which a prominent
feature was the award of possession pending the proceedings (Gains
iv. 16, 17). Such an award would be a provisional determination of
the right of inheritance, and it is suggested that it was so often
accepted by the other litigant as substantial justice that the posses-
sion came to be more than interim possession, and tended more and
more to be regarded as an independent and impregnable interest.
Such bonorum possessio was iuris civilis adiuvandi gratia; but as
the praetor^s quasi-legislative activity extended itself the forms iuris
civilis supplendi and corrigendi gratia were gradually added. Savigny
and Huschke connect the praetorian scheme of succession in origin
with the old usucapio pro harede (Gains ii. 52, 56) of which, accord-
ing to them, the praetor laid hold as the starting point of his inno-
vations: he gave the possession to certain persons who (it was
admitted) had an equitable, though not a legaJ, right to the estate.

47a EXCURSUS IV.

and devised, in the interdict quorum bonorum, a remedy by which they
could recover the deceased's property from other possessors, thus
placing them in a position to become owners by usucapion ; the
practical assimilation of the bonorum possessor to the heir, and the
introduction of the possessoria hereditatis petitio, being due to the
identification of bona fide possession in most respects with boni-
tarian ownership. But this hypothesis fails to give any explanation
of the bonorum possessio iuris civilis adjuvandi gratia, which is on all
hands regarded as the earliest form of the praetor's intervention, and
seems in other ways to harmonise ill with the general history of the
Roman law of inheritance.

It would seem that more light is thrown on the solution of the
problem by a consideration of the oldest evidence which we possess
of the law regulating the devolution of a deceased man's property
on intestacy. The Twelve Tables enacted, * Si intestato moritur, cui
suus heres nee escit, adgnatus proximus familiam habeto. Si adgna-
tus nee escit, gentiles ^miliam habento.' Here the term ' heres ' is
confined to the deceased man's agnatic descendant: he merely
assumes on the ancestor's death the actual control of property of
which his ownership was previously in a state of suspended ani-
mation (note, p. 351 supi.). The law does not give him the inlierit-
ance ; it recognises it to be his already. On the other hand, the
^nearest agnate and the gentiles are not called ' heirs ' at all : all that
is said is, in the absence of sui heredes, ^ familiam habento ' : they
acquire nothing ipso jure, but must take possession in order to make
their title good, whereas it is clear that the suns heres had possession
as heir, without the necessity of any act on his part\ It is a familiar
rule that extranei heredes acquired the inheritance only by accept^
ance, and there is no doubt whatever that under the earlier law such
acceptance was required in all cases to be formal and solemn
(cretio) ; the cretiones with which readers of Gains are acquainted
seem to have been inserted in the will only for the purpose of com-
pelling the instituted heir to accept within a reasonable interval*.
The formula of acceptance was 'adeo cemoque': it had to be
uttered before witnesses in the domicile of the deceased ^ and

1 Hence when there was a suus heres in existence nsncapio Incrativa was ipso
jure excluded ; the inheritance was already possessed.

' ThusUlpian (reg. a a. a;) defines cretio as ' certomm dierum spatium qnod
datnr instituto heredi ad deliberandam, ntrom expediat ei adire hereditatem necne.*

» Voigt, XII Tafeln, ii. p. 37a, note la.

ORIGIN &* DEVELOPMENT OFBONORUMPOSSESSIO. 473

therefore clearly involved a physical taking possession of the family
estate or other property.

In the law of Attica similar principles prevailed, but the extranei
heredes could obtain possession of the inheritance only by appli-
cation made to and granted by the archon *. It is most interesting
to observe that very frequently the circumstances of a Roman suc-
cession showed the advantages of the Attic rule, and suggested the
adoption of a similar practice. In the Greek system, if there was
a suus heres, his right was indisputable, and he was at once in
possession of the inheritance, for in that case the £ather could not
make a will. It can scarcely be doubted that originally the Roman
rule was the same. But if there was no suus heres, there could well
be a question as to who was entitled to succeed the deceased : for
there might be a will, and between the heir named in the will, and
those who would take on intestacy a keen controversy might easily
arise ; and it was for the avoidance or settlement of such disputes
that the Attic law laid down the rule that the extraneous heirs could
obtain no valid possession save from a magisterial award. It seems
more than probable that the praetorian bonorum - possessio was
designed to meet a similar difficulty. The Edict of Cicero's time
appears to have run as follows: Si de hereditate ambigitur et
tabulae testamenti obsignatae non minus multis signis quam e lege
oportet ad me proferentur, secundum tabulas testamenti potissimum
possessionem dabo. si tabulae testamenti non proferentur, tum uti
quemque potissimum heredem esse oporteret, si is intestatus mortuus
esaet, ita secundum eum possessionem dabo. cum hereditatis sine
testamento aut sine lege petetur possessio, si qua mihi iusta causa
videbitur esse, possessionem dabo^ Where, in other words, there
was no suus heres (si de hereditate ambigitur), but a dispute arose
between extraneous heirs of different classes, the actual possession
could not be obtained by a cretio, but only by magisterial decree : and
the origin of the praetoiian system is found in a desire to assist the
extraneus heres in getting actual possession of the universitas as
against wrongful possessors : ' hereditatis autem bonorumve possessio,
ut Labeo scribit, non uti rerum possessio accipienda est : est enim
iuris magis quam corporis possessio' (Ulpian in Dig. 37. i. 3. i). In
its earliest form it is iiuis civilis adiuvandi gratia.

^ Leist, Graco-italische Rechtsgeschichte, pp. 81 sqq. : F. Scholio, Das grie*
chische Testament, etc. i88a.

' Lei8t,.Der romische Erbrechtbesitz in seiner uxspriinglichen Gestalt, 1870, i.
p. 76.

EXCURSUS V.

THE GENERAL NATURE OF OBLIGATIONS.

The term obligatio properly indicates a legal relation between two
definite persons, whereby the one (creditor) is entitled to a certain
act or forbearance on the part of the other ; * creditorum appel-
latione non hi tantum accipiuntur, qui pecuniam credidenint, sed
omnes quibus ex qualibet causa debetur : ut si quis cui ex empto
vel ex locato vel ex ullo alio debetur. sed etsi ex delicto debeatur,
mihi videtur posse creditoris loco accipi' Dig. 50. 16. 11 and
12. The contrast between it and the relation existing in the case
of ownership, possession, or other legal rights, is well marked
by Paulus in Dig. 44. 7. 3. pr. ' obligationum substantia non in eo
consistit, ut aliquod corpus nostrum, aut servitutem nostram £Eiciat,
sed ut alium nobis obstringat ad dandum aliquid, vel faciendum,
vel praestandum,' with which may be compared Bk. iv. 6. i inf.
' namqtie agit unusquisque aut cum eo, qui ei obligatus est . . . quo
casu proditae sunt actiones in personam . . . aut cum eo agit qui nullo
jure ei obligatus est, movet tamen alicui de aliqua re controversiam,
quo casu proditae actiones in rem sunt.' No better explanation of
this contrast can be found than Austin's exposition of the difference
between rights in rem and rights in personam, the merit of which,
however, is marred by his use of the term obligation to denote the
duty corresponding to rights of the former as well as of the latter
class.

But though this is the proper and normal meaning of the term,
obligatio is sometimes used in other senses, and more especially to
express one or other limb of the relation in contradistinction to the
other ; thus, it signifies the right of the creditor only in the common
phrase adquirere obligationem (Bk. iii. 28, Dig. 45. i. 126. 2; 23. 3.
46. pr. : cf. Bk. ii. 2. 2 supr.), and the duty of the debtor only in Dig.

12. I. 36; 46. 3. 95. 3, as well as in the definition given in Bk. iii.

13. pr. supr. Sometimes it denotes specifically the act or event from
which the relation arises, as in Cod. 11. 47. 22. 2, as well as in the

THE GENERAL NATURE OF OBLIGATIONS. ji^T]

expressions verborum obligatio, litterarum obligatio, eta Again,
though only a person can properly be * obligatus,' objects which are
pledged are occasionally spoken of by analogy as subject to an
obligation, e.g. Bk.iii. 27. 2 supr., Dig. 20. 6. 11 : cf. 2. 14. 52. 2 ; 13.
7. 27 : and lastly, in Cod. 4. 30. 7, the term bears the meaning of a
bond or document attesting an obligation.

The earliest Roman conceptions of obligation is exemplified by
the condition of the debtor under the form of contract known as
nexum. His person was subjected to the will of the creditor, and
unless he duly performed what he had undertaken his creditor took
possession of him, and might even take his life or sell him into
foreign slavery. But the lex Poetelia forbade the body to be taken
in execution, save where a judgment debt remained unsatisfied, and
the idea of obligation in the later Roman jurisprudence is rather the
partial subjection, in law, of one person's will to that of another ; the
partial limitation of the debitor's freedom of action in favour of the
creditor ^ If I engage to buy 1000/. Consols, I am no longer at
liberty to buy railway stock with the same money : I must take the
Consols, or (which comes to the same thing) I must pay damages :
'debitor intellegitur is, a quo invito pecunia exigi potest' Dig. 50. 16.
108; the prominent conception is that expressed in the * necessitate
adstringimur ' of the definition of obligation in the Institutes. As
Savigny remarks, the relation of obligation to personal freedom
resembles that of servitude to dominium : it is, as it were, so much
deducted from the ideal whole. But, as he abo points out, the
restriction must be partial only; if a man's freedom is not merely*
curtailed in favour of another, but absolutely resigned, this is not
obligation, but slavery.

The object or content of an obligation is an act or forbearance ;
the debtor is bound either to do or not to do. The nature of this
act or forbearance requires some elucidation.

(i) The current Roman classification of the possible objects of
obligation is that suggested by the passage of Paulus cited above,
into dare, facere, and praestare : cf. Gains iv. 2 * in personam actio
est . . . cum intendimus dare, facere, praestare oportere.' But the
precise meaning of these terms, especially of the two latter, is so

^ * Before the lex Poetelia performance of what was due was merely the price
paid for dischai^ from one*s bonds: the true right of the creditor appeared
simply as a jus in corpore: bat after that statute the obligation acquired an
independent existence, and the person of the debtor became merely a security
for its performance.* (Kuntze, Excurse, p. 525.)

478 EXCURSUS V.

much a matter of dispute that it appears hardly worth while to con-
sider the various attempts which have been made to attach a deter-
minate signification to each of them. It is obvious that this is not a
scientific classification, and it originated, in point of fact, in the
technicalities of pleading under the formulary system, apart from
which it is not easy to understand : under Justinian it is a mere
valueless survival of an older and obsolete procedure.

(2) The act or forbearance must have an appreciable money value
in relation to the creditor, ' ea enim in obligatione consistere, quae
pecunia lui praestarique possunt' Dig. 40, 7. 9. 2. This rule origi-
nated in the fact that under the formulary procedure the remedy in
a personal action was always damages ; there was no specific per-
formance, and if, on the debtor's refusal to do that to which he was
bound, the creditor's only means of procuring satisfaction was to
obtain a pecuniary condemnation, an obligation which could not be
represented in a money value was clearly no obligation at all. There
are writers, however, who deny the application of this principle under
Justinian, on the ground that its original reason had disappeared
along with the introduction of specific performance : others dis-
tinguish between obligations stricti iuris and bonae fidei (Bk. iv. 6.
28 inf.), holding that in the latter regard was paid to the feelings no
less than to the purse of the creditor, while in the former the purse
alone was considered.

(3) The object of the obligation must be possible of perfonnance
both in nature and by law (see Bk. iii. 19. i and notes), e.g. no duty
would arise from a promise to convey a res extra commercium ; but
one can be validly bound to perform an act at present impossible in
the event of its becoming possible (Dig. 45. i. 98. pr.) ; further, it
must not be unlawful. Dig. 45. 1. 26, ib. 27. pr.

(4) The act or forbearance must be sufficiently definite, or at least
capable of being rendered so ; e.g. one cannot be bound to do just
so much as and no more than one pleases. Dig. 45. i. 94, 95, ib.

115- pr-

The classification of obligations according to the mode in which
they originate meets us in Bk. iii. 13. 2, and is spoken of in the
notes to that passage; another division, of great prominence in
Roman law, requires some explanation. An obligation is none the
less an obligation merely because the creditor is unable to enforce it
by action ; there are other modes in which the duty may be dis-
charged besides this, so that the relation fails only in one of its most
ordinary incidents. Actionability is only one of such usual incidents,

THE GENERAL NATURE OF OBLIGATIONS. 479

though perhaps the most characteristic of all, and an obligatio does
not lose its legal character by reason of its absence only. Such
non-actionable obligations are said to be ' natural/ in contrast with
those which are 'civil,' i.e. enforceable by action; in Dig. 46. 3.
95. 4, the bond is called vinculum aequitatis, as being imposed by
equity, though the precise relation of the 'nature' implied in a
natural obligation, and the nature whose law is identified by the
jurists with equity and the ius gentium, is somewhat obscure. That
the jural recognition of such- obligations originated in the ius gentium
seems to be afl5rmed in Dig. 50. 17. 84. i *is natura debet, quem
iure gentium dare oportet, cuius fidem secuti sumus,' though by some
writers it is ascribed to natural law in a philosophical rather than a
legal sense.

Some obh'gations are natural ab initio ; in other words, an act or
event produces a natural obligation, which under other circumstances
would have been civil : there is a reason why in the particular case
the creditor is unable to sue. Two such reasons have a very ex-
tensive operation, viz. —

(i) Insufficiency of form in contracts. We shall see that in Roman
law agreements were actionable only if they were clothed in a definite
form, or belonged to one or other of certain classes specially favoured ;
exactly as in English law no promise is legally binding unless made
either under seal or for valuable consideration. Agreements which
neither belonged to the favoured classes, nor were expressed in the
proper form, were nuda pacta, and unactionable, although (according
to Savigny and many other, writers) they gave rise to a natural obliga-
tion enforceable in other ways. This is inferred in particular from
Dig. 2. 14. 7. 4 'igitur nuda pactio obligationem non parit, sed parit
exceptionem,' ib. i. pr. 'huius edicti aequitas naturalis est: quid
enim tam congruum fidei humanae, quam ea, quae inter eos placu-
erunt, servari,' Dig. 46, 3. 5. 2 ' . . . puta, quaedam earum [usurarum]
ex stipulatione, quaedam ex pacto naturaliter debebantur : . . . et sicut
ex pacti conventione datae repeti non possunt ; ' cf. Dig. ib. 95. 4.
On the other hand, the passage last cited is the only one in which the
effect of producing natural obligation is directly attributed to a mere
pact ; and on account of this insufficiency of evidence there are many
who hold that Savigny is not justified in affirming natural obligation
as an incident of nuda pacta in general. Most directly they are sup-
ported by Dig. 45. I. I. 2 'si quis ita interroget, dabis? respondent,
quidni ? et is utique in ea causa est, ut obligetur. Contra si sine
verbis adnuisset, non tantum autem civiliter, sed nee naturaliter obli-

48o EXCURSUS V.

gatur, qui ita adnuit : et ideo recte dictum est, non obligari pro eo
nee fideiussorem quidem/

(2) A person's defective capacity of right or disposition, or the
peculiar relation of the parties. Thus, between pater and filius-
familias, and between master and slave, there could be natural
obligation only, and even to an extranea persona a slave could not
be bound civiliter. The SC Macedonianum (Bk. iv. 7. 7 and notes
inf.) affords another example : a disputed case is that of contracts
mad^ by a pupillus without his guardian's auctoritas ; see on Bk. i.
21. pr. supr.

Sometimes, moreover, an obligation which was originally civilis
ceased to be actionable, and became naturalis. {a) In some cases the
praetor, on principles of equity, disregarded strict civil law rules so far
as to permit the survival, in a * natural ' form, of an obligation which
had iure civili ceased altogether to exist, e.g. where a creditor became
heir to his debtor, and in capitis deminutio, ' hi qui capite minuuntur,
ex his causis, quae capitis deminutionem praecesserunt, manent obli-
gati naturaliter ' Dig. 4. 5. 2. 2 ; this, however, ceased to be of im-
portance when in integrum restitutio of the creditors had become
usual under such circumstances, see p. 386 supr. {d) Other illustra-
tions are supplied by the law of procedure : for example, an obligation
continued to exist as naturalis after it had ceased to be actionable
through either the rules for the prescription of actions, or the opera-
tion of litis contestatio (Gaius iii. 180) or res iudicata, Dig. 12. 6. 60.
pr. ; 46. 2. 29, Cod. 8. 41. 28.

The legal effects of natural obligation have as yet been defined
only negatively; it did not entitle the creditor to sue. As to its
positive effects, no general rule can be laid down for all cases : they
must be determined for each case individually, for the creditor's right,
in one instance, may have a greater or less orbit than in another ;
in other words, apart from the right of action, a natural obligation
may possibly entitle him to all or any of the rights which he would
have were the debtor bound civiliter, or possess all or any of the
following properties :

(i) It excludes condictio indebiti (note on Bk. iii. 14. i), i.e. if
money is owed naturaliter only, and is paid, even by mistake, it
cannot be recovered on the ground that it is not due : * naturales
obligationes non eo solo aestimantur, si actio aliqua earum nomine
competit, verum etiam cum soluta pecunia repeti non potest * Dig.
46. I. 16. 4.

(2) It can be set off against an actionable claim of the debtor on

THE GENERAL NATURE OF OBLIGATIONS. 481

the creditor, e.g. if A owes B 10/. naturaliter, and B owes A 20/.
civiliter, B on being sued by A can set the 10/. off against the 20/,,
though he cannot directly sue for it himself: 'etiam quod natura
debetur venit in compensationem ' Dig. 16. 2. 6; cf. Bk. iv-
6. 39 inf.

(3) It forms a sufficient basis for those other rights which can only
come into existence under the condition that there is already an
actual obligation in esse, viz. pledge, Dig. 20. 1.5; guarantee (* at ne
illud quidem interest, utrum civilis an naturalis sit obligatio cui adici-
atur iideiussor ' Bk. iii. 20. i ; so too, with constitutum, for which see
on Bk. iii. 20. 9), and novation (Bk. iii. 29. 3, Dig. 39. 5. 19. 4) ; by
constitutum a natural can be converted into a civil obligation by a
mere formless second promise by the debtor. Dig. 13. 5. i. 7.

(4) Deductio de peculio. Contracts between a paterfamilias and
his fih'us, or between a master and his slave, produced natural obliga-
tions only, which, if the inferior had a peculium, discharged them-
selves by their operation on the latter, which was automatically
diminished by the deduction of what he owed the superior. Dig. 15.
I. 9. 2-4.

In Bk. iii. 29 there is a discussion of the modes in which obliga-
tions could be extinguished : but this seems the most convenient
place for briefly describing those in which they could be trans-
ferred. To this question there are two sides ; either the right
may be transferred, or the liability. Transference of the liability, if
by that we understand a transaction which entirely releases the
person who has hitherto been liable, and imposes the debt on some
one else, could (apart from universal succession) be effected only by
novatio (Bk. iii. 29. 3), which, when employed for this specific pur-
pose, was called expromissio, or by an act of a similar character,
defensio. Transference of the right also (except in cases of uni-
versal succession) could at first be effected only by novatio. This,
however, is not assignment, but substituted agreement ; the assent
and co-operation of the debtor is required, and the right does not
pass from the person entitled to some one else, but is cancelled on
condition of a new one being created in favour of the latter : see
Gaius ii. 38. The Romans, in fact, struggled, with a tenacity
equalled only by that of the English Common Law, against the
assignment of what we call choses in action, i. e. rights in personam ;
but while the reason alleged for his resistance by the English judge
was the evil of 'maintenance,' the Romans, with more lawyer-like
instinct, based their opposition on the character of an obligation as

Ii

482 EXCURSUS V.

an essentially personal relation, the parties to which could not be
changed without destroying its eiristence^

A rude species of assignment became possible after the introduc-
tion of the formulary procedure, under which plaintiffs were generally
permitted to conduct their suits through agents (Gaius iv. 82). If
A, creditor against B, debitor, wished to assign his right to C, he
could make the latter his agent, procurator (in rem suam) ; C thereby
became entitled to accept performance from B, or in default to
sue him in A's name, the condemnation being expressed in his
own (Gaius iv. 86," 87). The result, in the Roman view, was no
transference of the obligation, for A remained the true and only
creditor; all that passed was the right of action, or rather the capacity
to exercise another's right of action, and all that C asserted or
realized was the claim of another person. This cessio nominum
or actionum, as it was called, though it dispensed with the necessity
of the debtor's assent, was not only rude, but faulty, especially if
made for valuable consideration. The appointment of C, as A's
procurator, was governed by the usual rules of mandatum, and con-
sequently became void (Bk. iii. 26. 9 and 10) if before action brought
either assignor or assignee died, or if the former revoked his com-
mission; th?re was no legal relation between assignee and debtor
until litis con'iestatio had been reached in proceedings taken by the
former. At length this was obviated by the assignee's being allowed
to sue, not in the assignor's name, but in his own by actio utiUs
(Ulpian in Dig. 3. 3. 55, Cod. 4. 15. 5; 6. 37. 18), which he was
enabled by gradual changes to do not only where he had been
expressly appointed agent, but also in cases of a mere alienatory dis-
position (Cod. 4. 10. 2, Dig. 2. 14. 16. pr.), and even where strictly
speaking the assignment would have been avoided by death or revo-
cation, (Dig. 3. 3, 55, Cod. 4. 10. I ; 8. 54. 33). It is disputed
whether the effect of the change was to make the assignee sole
creditor, or whether, in relation to the debtor, he did not still
legally continue a mere agent, enforcing by action in his own name
the right of another; in other words, whether a genuine assign-
ment, by which the assignee simply and actually stepped into the
shoes of his assignor, who simultaneously dropped altogether out of
the matter, was recognised at any time in Roman law. This,
however, is too minute and complicated a question to be entered
upon.

' Ct Mr. O. W. Holmes* Common Law, pp. 239, 541,

THE GENERAL NATURE OF OBLIGATIONS. 483

For such assignment no form was prescribed It could be effected
(i) by any expression of intention, unless it was of such a legal cha-
racter as to be invalid unless accompanied by certain solemnities (e.g.
donatio, p. 236 supr.); (2) by judicial sentence, e.g. in an actio familiae
erciscundae, Dig. 10. 2. 3, If a defendant were ordered to transfer
a chose in action, the judge might add that unless the order were
obeyed the assignment should be taken to have actually been made ;
(3) in pursuance of a general rule of law (cessio legis), e.g. a person
who procures the rescission of a will by querella inofficiosi can
recover legacies paid by the testamentary heir, Dig. 5, 2. 8. 16 ;
cf. 19. I. 13. 25.

The following rules of assignment are deserving of notice, if only for
the close parallelism between some of them and those of English law :

(i) Until the debtor has received notice of the assignment, he is at
liberty to treat the assignor as his true creditor ; thus he is released
by payment to him (' ille, cuius nomen tibi pignori datum est, nisi ei
cui debuit solvit nondum certior a te de obligatione tua factus,
utilibus actionibus satis tibi facere compelletur, quatenus tamen ipse
debet' Cod. 8. 17. 4), and is not prejudiced if (before notice) he
allows the creditor to set the claim off against a converse one of his
own, Dig. 18. 4. 23. I. Opinions differ as to the necessity of express
notice by the assignee himself. Many writers add that successive and
competing assignees rank, as against the debtor, in the order, not of
the assignments, but of the notice ; but this is denied by others, and
seems to be unsupported by textual authority.

(2) After notice the debtor is no longer entitled to treat the
assignor in any way as his creditor, and, if sued by him, is protected
by exceptio : 2. 14. i6. pr.

(3) The right passes to the assignee with all the defects and all the
advantages incident to it while vested in the original creditor. So
far as the former are concerned, this may be expressed by saying that
the assignment takes place ' subject to equities,' Dig. 18. 4. 5, i. e. the
assignee can ordinarily be met by the same defences as might have
been urged against the original creditor at any moment before notice
of the assignment was received, except such as are purely personal
(e. g. the exceptio pacti de non petendo, if available only against the
releasor). Among the advantages incident to the chose in action
which pass with it are rights of security, both real and personal, and
unsatisfied claims to interest ; the assignee may deal with it as if he
himself had been creditor ab initio ; e.g. he may assign it afresh,
release it, or use it as a set-off.

484 EXCURSUS V.

(4) In respect of certain assignments for valuable consideration,
there is an important enactment of Anastasius (lex Anastasiana, Cod.
4 35. 22), to the effect that no purchaser of a chose in action should
be able to recover more from the debtor than what he had paid him-
self, with ordinary interest, even though it was alleged that the
transaction was in part a gift. So far as the actual debt exceeded
the purchase money, it was ipso facto cancelled.

The Romans did not carry their theory of assignment beyond the
actio utilis ; for although it is true that the assignee's right to sue was
often, and perhaps usually, attested by a cautio or bond of the debtor,
transferred by the assignor for evidentiary purposes, yet this cautio
was no embodiment of the right after the fashion of negotiable in-
struments in modem law, which are exempt from the rules relating to
notice and equities. As Mr. Poste remarks (Gains p. 431), ' the com-
plete transferability of obligations was unknown to jurisprudence
until modern legislation gave validity to contracts with an incerta
persona, i.e. with a person unascertained except as a member of a
class; in other words, to papers payable to the holder or bearer.*
The nearest approach to be found in Roman law to this modem
refinement of transferability is the imposition of an obligation on
the successive holders for the time being of a parcel of land : *im-
peratores Antonius et Veras rescripserunt, in vectigalibus ipsa
praedia, non personas conveniri, et ideo possessores etiam praeteriti
temporis vectigal solvere debere, eoque exemplo actionem, si igno-
verint, habituros ' (i.e. against their predecessors).

EXCURSUS VI.

DOLUS, CULPA, AND CASUS.

A PARTY to an obligation, whether it arise ex contractu or quasi
ex contractu, may commit a breach of duty, express or implied,
either intentionally or unintentionally. Deliberate breach (dolus)
always entailed liability — dolus semper praestatur — which could not
be evaded even by an explicit agreement to the contrary : * Celsus
putat non valere, si convenerit, ne dolus praestetur : hoc enim bonae
iidei iudicio contrarium est : et ita utimur ' Dig. 50. 17. 23 : cf. Dig.
2. 14. 27. 3. Certain unintentional breaches were treated in the same
manner, whether consisting in acts of commission or of omission :
viz. those which arose from want of ordinary care, from a careless-
ness so excessive that no ordinary man would have been guilty of it :
this is called culpa lata, and for it, even in contractual and quasi-
contractual relations, one is always answerable no less than for dolus,
or deliberate and intentional breach : ' lata culpa est nimia negli-
gentia, id est, non intellegere quod omnes intellegunt' Dig. 50. 16.
213. 2 : ib. 223. pr., 'lata culpa plane dolo comparabitur' Dig. 11.
6. I. I, *prope dolum est' Dig. 17. i. 29. pr., 'dolum repraesentat *
Dig. 47. 4. I. 2, ' dolus est' Dig. 50. 16. 226.

But if a man's negligence or culpa is not of this extreme degree,
the question whether he is answerable for it is determined by refer-
ence to one or other of two standards or criteria of carefulness, the
one abstract or absolute, the other relative or concrete.

(i) In some relations a man is required to show what the Romans
caU exacta diligentia, or the diligentia of a bonus pater&milias, a care-
ful, circumspect, sound man of business ; here he is answerable for all
culpa, provided it would have been avoided under the circumstances
by a man of that kind : ' culpa autem abest si omnia facta sunt
quae diligentissimus quisque observaturus fuisset' Dig. 19. 2. 25. 7.
Modem writers call this culpa levis in abstracto : in the authorities
it is usually called culpa simply : when it is said that a man is
answerable not OQly for dolus but for culpa as well, what is meant is

486 EXCURSUS VI.

that he is answerable for levis culpa: the liability for lata culpa,
being universal, is implied. Instances in which this highest degree
of diligence was demanded are those of the commodatarius, Bk. iiL
14. 2; the depositor. Dig. 47. 2. 61. 5, the pledgee in a pignus, Bk. iii.
14. 4; the vendor, Dig. 18. 6. 3; the hirer (conductor), and letter
(locator), Dig. 19. 2. 31 : the authorized agent (mandatarius), Cod.
4. 35. 13, and unauthorized agent (negotiorum gestor), Bk. iii. 27. i.

(2) In other relations the law was satisfied with a less rigid standard:
i. e. a man was required to be only as careful as he was in affairs
which concerned no one but himself, or in which he himself would be
the person primarily injured by carelessness : * talem praestare dili-
gentiam qualem in suis rebus adhibere solet ;' or, as modem writers
say, he was held answerable only for culpa levis in concrete. This
lower degree of carefulness only was demanded from the depositary
(Dig. 16. 3. 32: see note on p. 397 supr.); the tutor, Dig. 27. 3.
I. pr. and curator; partners (socii) inter se. Dig. 17. 2. 72, Inst. iii.
25. 9 ; coheirs and colegatees. Dig. 10. 2. 25. 16, and the husband
in respect of the dos. Dig. 23. 3. 17. pr. If one may lay down a
general rule, it would perhaps best be formulated thus : in contractual
and quasi-contractual relations the defendant is usually required to
show exacta diligentia, but the burden of proving his negligence is on
the plaintiff ; in some of them, however, the defendant is excused if
he can prove that he has shown such diligence and care as he usually
displays in the conduct of his own affairs.

Mr. Poste, in his note on this subject (Gaius pp. 478-481), criti-
cises as unnecessary and complicated the tripartite division into the
diligence (a) of an ordinary man, {b) of a man in his own concerns,
and if) of the bonus paterfamilias, and adopts the two last criteria
only. The result of this is a faulty determination of culpa lata, which
he defines as * the absence of the degree of diligence which a man
habitually bestows on his own concerns ;* that this is wrong is clear
from the definition cited above from Dig. 50. 16. 213. 2. Hence too
arises a practical difficulty : for if we suppose (e.g.) a partner to be
less careful in suis rebus than an ordinary man, and yet to display in
societatis rebus that care which he bestows on his own, how is he to
be judged? He has been guilty of culpa lata according to the
definition of the Digest, and yet on Mr. Posters principle he is not
answerable.

No test has yet been suggested for determining the degree of dili-
gence required by law in a given relation which is not marred by per-
plexing exceptions. Perhaps the one which covers thp greatest number

DOLUS, CULPA, AND CASUS. 487

of instances is that proposed by Mr. Poste, p. 479 : *the principle
appears to be that when a contract is for the interest of both parties,
although their interests are rather adverse than identical, each is
responsible for the least negligence:' *in contractibus bonae fidei
servatur, ut si quidem utriusque contrahentis commodum versetur,
etiam culpa, si unius solius, dolus malus tantummodo praestetur'
Dig. 30. 108. 12: cf. Dig. 13. 6. 5. 2. Yet there are some cases
(e.g. mandatum and negotiorum gestio)in which, though the relation
is all for the interest of one party, exacta diligentia is required from
the other ; and others in which, though both parties are interested,
they are yet expected to show only talem diligentiam qualem in
suis rebus adhibere solent, e.g. partners, coheirs, and colegatees.

Accident, fortuitus casus (which is mentioned in Bk. iii. 14. 2
and elsewhere in the Institutes), and dolus form the two extremes of
a chain of possible sets of circumstances, the responsibility for which
may be exhibited thus. For accident, and for such unintentional
faults and mistakes as could not have been guarded against by the
utmost care, no one is answerable. Culpa levis entails liability on the
classes of persons enumerated under (i) supr. : they are required to
show exacta diligentia. The classes of persons enumerated under (2)
are expected to display the lower degree of diligence: they are
answerable for culpa levis in concreto. Culpa lata and dolus entail
liability in every case.

The liability for culpa in delict is treated in Bk. iv. Tit. 3, and notes.

EXCURSUS VII.

JOINT AND SEVERAL LIABILITY. CORREALITY AND
SOLIDARITY.

The simplest type of obligation is that in which there is but a
single creditor and a single debtor. There may, however, possibly be
two or more creditors, or two or more debtors, in the same obligation.
Sometimes, it is true, this plurality of parties is apparent only, and not
real : it is seen, on a closer scrutiny, that there are, in reality, a
number of separate obligations, each with its single creditor and its
single debtor, and each distinguishable from each of the rest : the
misapprehension arising from the fact that there is something which
connects the several obligations with one another. For instance, if
A, B, and C jointly promise 15/. to D, or if D promises 15/. to A, B,
and C jointly, D can claim only 5/. from each of the promisors singly,
or each of the promisees can recover only 5/. from him. Or again,
if a debtor or creditor dies, leaving several joint heirs, they are
entitled or bound, and can sue or be sued, only in the ratio of their
shares in the inheritance. In all these cases there is no single obli-
gation with a plurality of parties on either the creditor or the debtor
side : there is a number of separate and distinct obligations, which, in
our minds, are connected together by the unity of the mode in which
they originate.

A different form of apparent unity of obligation is that, where two
or more persons are entitled or bound in the sense that each may
claim, or be called upon to perform, the whole of what is due under
the obligation, that whole being demandable as many times as there
are creditors or debtors respectively. E. g. the law imposes a penalty
of 10/. on any one who steals pheasants' eggs. A, B, and C together
go and steal D's pheasants' eggs: D can recover the 10/. penalty
from each of the three in succession, exactly as if he were the only
delinquent, or as if the thefts were independent or disconnected.
Roman law supplies an illustration in Dig. 9. 2. 11. 2 'ex lege Aquilia

JOINT AND SEVERAL LIABILITY. 489

quod alius praestitit alium non relevat, cum sit poena.' So too if D
injures A, B, and C by the same act, they can each separately recover
from him the penalty fixed by law : the obligations are independent,
though arising from one and the same source.

But a third case is conceivable. There may be one creditor entitled
by different obligations against two or more debtors, or one debtor
bound by different obligations to two or more creditors ; but these
obligations, though different from one another, may have one and the
same object (act or forbearance) : not similar objects, such as the
payment of the 10/. penalty above, but the same object : so that
when that object is once attained by the performance of one of the
obligations, all the rest, no longer having any object, cease ipso facto
to exist E. g. A, B, and C jointly break my windows. Each is under
a separate obligation to pay me for mending them, and I may sue
which I please, apart from the rest, for the expenses to which I have
been put ; but if I recover the amount of the glazier's bill from A, I
can no longer get it from B or C, for the claim is a civil one for com-
pensation, not a quasi-criminal one for a penalty. In such a case,
there are as many separate obligations as there are persons bound,
but the object of all these obligations is the same : each debtor is,
therefore, liable for the whole object, or liable in solidum (as distinct
from the liability pro parte exemplified by a joint promise to pay 15/.),
but as the object is only one, it can only be once attained, and there-
fore performance by one of the joint debtors releases the rest. This
is called solidary obligation : and as two or more debtors can be
solidarily bound to one creditor (passive solidarity), so two or more
creditors can be solidarily entitled against one debtor (active soli-
darity); i.e. either or any one of them can, without consulting the
other or rest, claim the whole object (which forms the connecting link
between the different obligations) from the single debtor ; but as soon
as he has done what he has to do for one, the vinculum iuris between
him and all is severed, and he is free. The predominance of passive
over active solidary obligation is so great that some writers have
supposed the latter to have no real existence. There is a clear case
of it, however, in Dig. 9. 4. 14. pr., though owing to its rareness we
need not concern ourselves with it here.

Cases of the passive form are (i) the joint commission of a delict :
the obligation of the co<lelinquents to make compensation (though
not that to pay a penalty) is solidary. Dig. 2. 10. i. 4; 4. 2. 14. 15.
(2) The liability of cotutors for dolus and culpa in the discharge of
their functions, Dig. 16. 3. i. 43 ; 26. 7, 18. i ; 27. 3. 1. 13. (3) Where

490 EXCURSUS VII.

two or more persons jointly incur a contractual but not correal
(for which see below) liability (e. g. A and B jointly agree to act as
agents for C, Dig. 17. i. 60. 2 ; or as his depositaries, Dig. 16. 3. i.
43; or jointly borrow a thing for use, Dig. 13. 6. 5. 15), they are
bound solidarily in respect of the duties which arise from the con-
tract. Such joint contracts will not, however, in themselves create
active solidary obligation, Dig. 16. 3. i* 36 ; ib. 14. pr. (4) In man-
datum qualificatum (Bk. iii. 26. 5) joint mandators incur solidary
liability if the debtor is unable to pay himself. Dig. 46. i. 52. 3 ; so
too with constitutum debiti alieni (note on Bk. iii. 20. 8). (5) Where
one room is jointly occupied by two or more persons they are liable
in solidum to the actio de effusis et deiectis, Bk. iv. 5. i infr.. Dig. 9.
3. I. 10; ib. 2-4.

Solidary obligation is terminated — i. e. all the solidary debtors are
released, and the right of all the solidary creditors is extinguished —
by simple satisfaction of the sole creditor, or by satisfaction of one of
the creditors by the single debtor. This may occur (i) by perform-
ance, solutio, or (2) by set-off extending to the whole of the debt.
But acquittal of one solidary debtor in an action brought on his
obligation did not release the rest from theirs : 'plures eiusdem
pecuniae mandatores, si unus iudicio eligatur, absolutione quoque
secuta non liberantur, sed omnes liberantur pecunia soluta ' Dig. 46.
I. 52. 3. Acceptilatio (Bk. iii. 29. i) was equally inoperative, for it
is neither payment nor equivalent to it : and novatio (ib. § 3) extin-
guished solidary liability only so far as the object of the new obliga-
tion was quantitatively equivalent to that of the old. In short,
the intervention of any event, which ordinarily destroys an obliga-
tion, between the creditor and one of the joint debtors, or between
the debtor and one of the joint creditors, does not affect the liability
of the other debtors, or the right of the other creditors, unless it
is or amounts to performance.

But, though the ultimate liability of each of several solidary debtors
for the whole object of the obligation is clear, each ordinarily enjoyed
the following rights : (a) except where he had been guilty of dolus, or
of culpa in excess of the rest, he could claim to be primarily sued only
for an aliquot part of the debt, Dig. 26. 7. 38. pr. : he could be called
upon to pay more only if the rest or some of them were insolvent
(beneficium divisionis). (b) If another or others of the debtors had
been excessively in fault, he could in some cases (e.g. cotutors. Dig.
26. 7. 3. 2 ; ib. 39. II ; ib. 55. 2) demand that he or they should be
sued before him (beneficium ordinis sive excussionis). (c) Where

CORREALITY AND SOLIDARITY. 491

he had not been guilty of dolus (Dig. 27. 3. i. 13 and 14) and paid
the whole, he bad a ius regressus against the rest by which he could
recover their respective shares of what he had paid. In (i) supr.
this right of course did not exist : * in pari delicto potior est condicio
defendentis.'

From solidary we have to distinguish what is called correal obliga-
tion. This resembles the former, in that two or more creditors (correi
stipulandi or credendi) are entitled against one debtor, or two or more
debtors (correi promittendi or debendi) are bound to one creditor in
respect of one and the same obligation-object, and so far we may
say that every correal includes in itself a solidary obligation, each of
the two or more creditors being entitled, and each of the two or more
debtors being bound, in solidum. But it differs in that there is not
only one obligation object, but only one obligation. The unity of the
object here follows necessarily from the unity of the obligation itself :
where the liability is solidary, it arises from extraneous causes, for,
given a variety of obligations, the natural and usual consequence
would be a corresponding variety of objects.

It is thus the unity or identity of the obligation which distinguishes
correal from merely solidary obligation: or, to put the matter in
another form, when there is correality, there is, objectively, one single
obligation, to which a variety of persons are subjectively related in
solidum : and their subjective relation may be different.

There is, objectively, but one single obligation. Hence any act or
event (and not merely performance or its equivalent, as in cases of
solidarity) which puts an end to the objective existence of that single
obligation between the creditor and one of the debtors, or the debtor
and one of the creditors, extinguishes it between them all ; e.g. solutio
or performance (Inst. iii. 16. i. Dig. 45. 2. 3. i), acceptilatio (Dig. 46.
3. 16), and novatio (Dig. 46. 2. 31. i). Compensatio, or set-off,
extinguishes correal obligation only if it goes to the whole debt. Dig.
20. 4. 4 : but if correal debtor A is sued he cannot set-off money
owed to correal debtor B, unless he and B are partners. Dig. 45. 2.
10. So, too, if the creditor sued one of the debtors, or one of the
creditors sued the debtor, the obligation was extinguished for all by
the action's reaching the stage of litis contestatio, Gaius iii. 180, Dig.
45. I. 116. In respect of passive correal obligation this was altered
by Justinian's constitution in Cod. 8. 41. 28, which enacted that the
debt should not be extinguished by litis contestatio, but only by
satisfaction of the creditor : for active correal obligation the old rule
seems to have continued. Dig. 45. 2. 2 ; 46. 2. 31. i. Further con-

49* EXCURSUS VII.

sequences of the unity of the obligation are that any act of a coixeus"
debendi, by which its performance becomes impossible or more diffi-
cult, prejudices the rest : * ex duobus reis eiusdem Stichi promittendi
factis alterius factum alteri quoque nocet * Dig. 45. 2. i8 : as also
does the interruption of prescription by one of them only.

But the subjective relation of the correi to the obligation need not
be the same. Hence, as is said in Bk. iii. 16. 2, one correus debendi
may be bound * pure,* another sub condicione : one may be entitled or
bound as principal, another only as accessory, as in the case of stipu-
lator and adstipulator, Gains iii. 1 10- 1 14, or of debitor and fideiussor,
Bk. iii. 20: or one may be in mora without prejudicing the rest.
Dig. 22. I. 32. 4 : and other events, though not destroying the
objective existence of the obligation, may modify the relation to it
of this or that correus. Thus, for the operation of confusio (p. 469
supr.) cf. Dig. 46. 1. 71. pr. * sed cum duo rei promittendi sunt, et alteri
heres extitit creditor, iusta dubitatio est, utrum alter quoque liberatus
est, ac si soluta fuisset obligatio, an persona tantum exempta, confusa
obligatione : et puto aditione hereditatis confusione obligationis eximi
personam : . . . igitur alterum reum eiusdem pecuniae non liberari ; *
for capitis deminutio. Dig. 45. 2. 19 'cum duo eandem pecuniam
debent, si unus capitis deminutione exemptus est obligatione, alter
non Hberatur ;' for liberatio legata (Bk. ii. 20. 13 supr.). Dig. 34. 3.

3. 3 * si quidem mihi liberatio sit legata, et cum alio sim debitor,

puta duo rei fuimus promittendi, et mihi soli testator consultum
voluit, agendo consequar, non ut accepto liberer, ne etiam correus
meus liberetur contra testatoris voluntatem, sed pacto liberabor.'
Where the creditor agreed by pactum de non petendo not to sue one
of two or more correi debendi, the other or rest could take advantage
of the pactum only if, as it is said, it was in rem (see on Bk. iv. 14. 4
inf.), even though partners of the other. Dig. 2. 14. 25. i, 'multum
enim interest, utrum res ipsa solvatur, an persona liberetur ' Dig. 45.
2. 19, ^in rem pacta omnibus prosunt, quorum obligationem dissolutam
esse eius, qui paciscebatur, interfuit' Dig. 2. 14. 21. 5. Hence the
pactum de non petendo in rem of one correus debendi benefits the
rest whenever on payment by one of them he would have regressus
against the others, for otherwise the pactum would be practicaUy
inoperative. But if, conversely, one of two or more correal creditors
concluded a pactum de non petendo with their joint debtor, the latter
could in no case plead it in defence to an action instituted by the
other or others : ' si unus ex argentariis sociis cum debitore pactus sit,
an etiam alteri noceat exceptio ? Neratius, Atilicinus, Proculus, nee

CORREALITY AND SOLIDARITY. 493

si in rem pactus sit, alteri nocere : tantum enim constitutum, ut alter
solidum petere possit* Dig. 2. 14. 27. pr.

Correal obligation might arise (i) from contract, usually stipulation
in the form given in Bk. iii. 16. pr., though it seems to have been also
possible, first to make an ordinary stipulation, followed by another in
which the same performance was promised by the same promisor to
another promisee, or to the same promisee by another promisor
(e. g. adstipulatio and fideiussio) : in bonae fidei contracts correal
obligation could be produced by a pactum adiectum directed to this
purpose. Dig. 16. 3. i. 44; 45. 2. 9 ; (2) from testament, by the
testator charging a legacy on one or other of his heirs in the alterna-
tive, Dig. 30. 8. I ; 32. 25. pr. To create an active correal obligation
by will the testator must state this as his intention explicitly. (3) The
obligation was also correal in the cases of express or implied agency
pursued by the actiones adiectitiae qualitatis, de peculio, de in rem
verso, quod iussu, exercitoria and institoria (see note on Bk. iv. 7. pr.
inf.). (4) In a banking partnership the socii were liable correaliter on
all their business transactions, whether entered into by one or all of
them. Dig. 2. 14. 9. pr. ; 4. 8. 34. pr. ; see on Bk. iii. 25. 9. (5) Joint
owners of a slave who committed a delict, or of an animal which did
damage, were correal debtors in respect of the noxal action, Bk. iv.
8 inf. : Dig. 9. i. i. 14; 9. 4. 8 ; 11. i. 7, ib. 8, ib. 20. pr.

It appears to be the better opinion that a paying correal debtor
had not, as such, a ius regressus against the rest (Dig. 35. 2. 62 pr. ;
cf. Tit 20. 4 inf.), unless he and they were partners, Dig. loc. cit, or
unless, and here only so far as, they had been benefited by the debt
which he had discharged. Cod. 8. 40. 2. Savigny contends (Obi.
§§ 23-25) that the ius regressus existed in all cases, on the ground
that a correal debtor, when sued, could always meet the plaintiff by
exceptio doli, unless the latter consented to transfer to him his rights
of action against the other correi debendi, and that, when such a cessio
could be insisted upon, utiles actiones were in the later Roman law
always granted under the fiction that it had actually been made. But
that the so-called beneficimn cedendarum actionum belonged to every
correal debtor as such who paid is far from certain : nor is Savigny's
other assumption correct, that in every case in which it did exist a
fictitious cessio was recognised : for though a paying fideiussor could
insist on an actual cessio it is certain he had no regressus against
cosureties, Gaius iii. 122, Bk. iii. 20. 4 supr.. Dig. 46. i. 39, Cod. 8.
41. II.

The beneficium divisionis, or right to be sued for only an aliquot

494 EXCURSUS VIL

share of the debt, belonged to correi debendi only in particular
cases, and by special enactment : it was granted to fideiussors by the
epistola Hadriani, Bk. iii. 20. 4, and from these was extended to
mandators, Cod. 4. 18. 3 : Justinian gave it to persons jointly liable
on a constitutum, Cod ib. The effect of Nov. 99 on this branch of
law is too much a matter of dispute to admit of discussion.

EXCURSUS VIII.

THE ROMAN LITERAL CONTRACT AND ITS HISTORY.

The true old Roman literal contract, or expensilatio, which appar-
ently began to be disused soon after the fall of the Republic, was
concluded by the creditor's making, with the debtor's assent, an entry
in his domestic account-book or ledger (codex, tabulae) of so much
as advanced by him to the latter (expensum ferre), the transaction
thus having the appearance of an advance or loan. Such a written
entry was not mere evidence of a contract binding on some other
ground — res, verba, or consensus : by itself it laid the debtor under a
legal obligation to repay the sum in question : * in nominibus alius
expensum ferendo obligat* Gains iii. 137. There are at least two
passages (Cic. ad Att 4. ep. 18, Valerius Maximus 8. 2. 2) which
prove that expensilatio was a mode of creating a new and original
obligation. But it seems most ordinarily to have been employed for
the purpose of Novation (Bk. iii. 29. 3), when it was called transcrip-
tio, and the entry * nomen transcripticium ' Gaius iii. 128 : and in the
form transcriptio a persona in personam (* veluti si id tjuod mihi Titius
debet, tibi id expensum tulero' Gaius loc. cit.), it must among business
men have been of great value in the simplification and settlement of
outstanding accounts. The main object of transcriptio seems to have
been the substitution of a strict civil law for a iuris gentium contract ;
or, as Mr. Poste puts it, * to metamorphose claims recoverable by
actions ex fide bona, e.g. locati conducti, empti venditi, which in many
points favoured the defendant, into debts recoverable by the short and
sharp remedy of the civil action of condictio, which, when brought for
certa pecunia credita, was the more formidable to a dishonest liti-
gant, as it was accompanied by a sponsio poenalis, whereby the van-
quished party forfeited a third of the sum in litigation, in addition, if
he was the defendant, to the original claim.' That this was its main
use seems more than probable on a priori grounds, for it is clear that
if 30/. are due to a man on a sale (e.g.), he will prefer to secure by
novation a remedy by which he can recover 40/. ; and the conclusion

496 EXCURSUS VIII.

is made absolutely certain by a consideration of the only case in which
a iuris gentium contract was not 'novated' by entry in the codex.
Gaius tells us (iii. 131) that the entry of a genuine money loan left the
transaction a mutuum or real contract, though known by the specific
name of nomen arcarium. The explanation of this seeming anomaly
is that the remedy on mutuum alone of all the real and consensual
contracts was always condictio: and as consequently novation of
a mutuum by transcriptio could give the creditor no advantage
which he did not possess already, its entry in the ledger did not
alter the * causa' of the obligation, but served only as evidence,
Gaius loc. cit.

Expensilatio, as has just been remarked, was a formal civil law con-
tract, confined to Roman citizens, though the Sabinians had held that
for transcriptio a re in personam at least it might be used also by
peregrini. We learn, however, from Gaius that the latter bad a form
of literal contract of Greek origin peculiar to themselves, viz. the chi-
rographa and syngraphae, species of bonds of which the former were
signed by the debtor only, while the latter were executed in duplicate,
and signed by both parties. It seems clear, from the passage referred
to (iii. 134), that, unless made merely as evidence of a stipulation,
these had binding force for peregrini in themselves, though they would
not have bound citizens : or, as Savigny says (verm. Schriften i. p.
246), it was law in the provinces, as contrasted with Rome, that any
formless document attesting an agreement was actionable.

Asconius, the early commentator on Cicero, observes (in Verr. 2. i.
23) that in his time the codex, and with it expensilatio, had gone out
of use except among bankers (argentarii), who, as might have been
expected, continued longer to keep their books in the old Roman
fashion, though Justinian says in Bk. iii. 21, that in his own day such
entries, even supposing them to have still been made, had ceased to
create obligations. Whether it be true or not, as Asconius (confirmed
by Eusebius) says himself, that he wrote about the middle of the first
century of our era, the commentary on the Verrine orations is of so
different a character from the rest that Savigny and Niebuhr may be
right in ascribing it to a redacieur of the fourth century, in which case
the fact that Gaius describes literal contract as apparently in full
operation need create no difficulty. Perhaps, indeed, as was first
suggested by Schiiler, the disappearance of nomina transcripticia is to
be ascribed to the introduction of constitutum, which, instead of
novating the pre-existing obligation, added to it a fresh one upon
which the creditor, if successful, would recover an even heavier penal

ROMAN LITERAL CONTRACT AND ITS HISTORY. 497

sum than he would by condictio certi (p. 429 supr.), and which was
superior to them in its simplicity and formlessness.

But, even long before the time of Gains, the character of expen-
silatio (with which, as a formal contract, stipulatio may be coordinated)
had been vitally altered. These two contracts had for centuries
resembled the English Deed in imposing an obligation by their mere
form : once made, the debtor was bound, and must pay, whether he
had or had not received the consideration for which he purported to
have made the promise or consented to the entry, and even though
his promise or consent had been obtained by duress, misrepresenta-
tion, or undue influence. It would seem that this was remedied first
in 65 B.c.^ when Aquilius Gallus, Cicero's colleague in the praetorship, X.
stated in his Edict that he would allow an exceptio doli mali to be
pleaded in defence to an action on a formal contract. In contracts
which were bonae fidei such a formal plea was unnecessary : for
* doli exceptio inest bonae fidei iudiciis ' Dig. 24. 3.21; and in a
condictio brought on a mutuum the defence of no consideration would
be a direct traverse of the plaintiffs right, upon whom consequently
would fall the burden of showing that the money had in point of fact
been advanced to the defendant. Mr. Poste (Gaius p. 389) seems to
think that the exceptio doli was not universally pleadable to condic-
tiones until the time of Marcus Aurelius; but the passage in the Insti-
tutes (Bk. iv. 6. 30) upon which this supposition is based relates only
to the application of this plea in the introduction of a set-off (compen-
satio) in such suits. It is obvious that Cassiiis' innovation entirely \%^y^
changed the material character of stipulatio and expensilatio. Osten-
sibly, they continued to bind in virtue of their form alone : practically,
as fraud, failure of a promised consideration, etc. would enable the
promisor, by pleading exceptio doli, to defeat any action brought
against him by the other party, they were * transformed into real (?)
contracts, the obligation of the promisor depending on the perform-
ance of the promisee (re), that is, on the execution by the promisee
of his part of the consideration, not on the solemnity of the spoken
words (verbis) or written documents (literis).*

Eventually, when the defendant's plea was in effect that the pro-
mised pecuniary consideration, by which his own promise had been
obtained, had not, in point of fact, been given (i. e. when it was in

^ In the first edition this change was attributed to a praetor named Cassius
on the strength of Dig. 44. 4. 4. 33 : but this seems to have been erroneous : see
Prof. Muirhead*8 Roman Law, addition to p. 448.

Kk

498 EXCURSUS VIIL

factum composita), it came to be called the exceptio pecuniae non
numeratae, which Justinian says in the Code is a species of the ex-
ceptio doli, with which indeed it is in Cod 4. 30. 3 actually identified :
cf. notes on Bk. iv. 13. i and 2 inf. From a comparison of Gaius iv.
116 with those paragraphs it would seem that the new name had not
yet been given in the former's time. Upon the plea of pecunia non
numerata being entered by the defendant, the onus probandi, contrary
to the ordinary rule, lay upon the plaintiff: ' si ex cautione tua, licet
hypotheca data, conveniri coeperis, exceptione opposita seu doll seu
non numeratae pecuniae, compellitur petitor probare pecuniam tibi
esse numeratam: quo non impleto absolutio sequetur' Caracalla
in Cod. 4. 30. 3.

To an action on a genuine oral stipulation the exceptio could be
pleaded at any length of time from the date of the alleged transaction.
But in the Eastern portion of the empire, at any rate, the syngrapha
or chirographum of the provincial, losing its old meaning, seems
gradually to have been blended with the stipulation : it became more
and more the practice, as might be inferred from Bk. iii. Tit 19. 12.
and 17, and Tit. 20. 6, to express stipulations in a written memo-
randum, cautio, which (as we have seen) was taken to prove, in the
absence of clear testimony to the contrary, that the parties had been
present, and the interrogative form observed, Paul. sent, rec 5. 7. 2,
Cod. 8. 38. 14. 2. From the expression in Bk. iii. 21 'cessante
scilicet verborum obligatione,' which obviously is meant to corres-
pond with the * ita scilicet si eo nomine stipulatio non fiat ' of Gaius
iii. 134, it is possible that Justinian was there referring to cautiones
or written acknowledgments of loans or transactions in the nature
of loans (mutua), which, like a stipulation oral or written, were ground
for a condictio. What is said in Bk. iii. 21 may, however, be taken
to apply to cautiones of both kinds, whether acknowledging a loan,
or professing to attest or be a stipulation, in which a sum of money
was promised. Persons who were so careless as to put their names
to such memoranda without having received the consideration for
which they purported to have been given, were at first allowed to
plead the exceptio only within one year from their date : this was
extended by M. Aurelius (Cod. Herm. i) to five years, which
Justinian, as he says in Bk. iii. 21, again reduced to two. After this
interval — in the language of that passage, dum queri non potest — the
cautio was accepted as presumptive evidence that the money had
been advanced, or other consideration given, so that the defendant
might be said, in a sense, to be Uteris or scriptura obligatus ; for the

ROMAN LITERAL CONTRACT AND ITS HISTOR Y. 499

ordinary rules of proof were now reversed : the plaintiff had not to
prove that he had lent the money, but the defendant had to prove
that he had not But persons who had incautiously given such notes
would still have been largely at the mercy of their holders, had the
latter been able to wait till the interval, within which the exceptio
could be pleaded, had elapsed, and then to sue with the advantage
of having shifted the onus probandi on to their opponents. To pre-
vent this the former could either bring condictio ob causam datorum,
compelling the holders to prove the alleged consideration, or in default
to deliver up the memoranda (Cod. 4. 30. 7), or protest in the acta
of a court against their validity, or make their exceptio perpetual by
serving a formal written notice on the creditor, Cod. ib. 14. 4.

Justinian, before whose legislation the exceptio pecuniae non
numeratae could be used only where default had been made in the
advance of money by the plaintiff, gave it a larger scope by allowing
it also where the alleged consideration was the conveyance of other
things : ' in contractibus, in quibus pecuniae vel aliae res numeratae
vel datae esse conscribuntur, non intra quinquennium, quod antea con-
stitutum erat, non numeratae pecuniae obicere possit, qui accepisse
pecunias vel alias res scriptus sit, vel successor eius, sed intra solum
biennium continuum' Cod. 4. 30. 14. pr. Justinian's attempt to pass
off the ' cautio ' as a ' literal ' contract, which is due merely to the
habit of reproducing, if possible, the arrangement and terminology of
Gaius, is forced and unhappy : the notion of an obligation arising
simply Uteris does not appear elsewhere in the Corpus iuris, except
so far as the use of scriptura and literae in Dig. 44. 7. 2. i ; ib. 38,
and 46. 2. 17 may be regarded as a reminiscence of the old expen-
silatio. The cautio itself does not bind : it is merely evidence, and
what does bind is the stipulation which it attests — or as Paulus puts
it neatly in Dig. 44. 7. 38 *non figura literarum, sed oratione, quam
exprimunt literae, obligamur.' The fact is that the compilers of the
Institutes, in working through the earlier work of Gaius, incautiously
transcribed the whole of iii. 89, and consequently when they had
finished the subject of stipulation felt bound to make some sort of a
show of a * literal ' contract In the Digest, which was meant for prac-
titioners, more than for students, no such mistake was made. There
we read ^44. 7. i. i) * obligationes ex contractu aut re contrahuntur
aut verbis aut consensu.' It need hardly be said that beyond all
doubt Gaius, who is the author of the passage, added ' aut literis '
after ' verbis,' and that these two words were struck out as antiquated
by the commission of compilation.

K k 2

EXCURSUS IX.

AGENCY.

The question of contractual agency or representation is this : to
what extent, if any, was it possible for B (not being a mere messenger
or 'animated letter,' but a genuine agent, allowed more or less dis-
cretion) to make a contract with C for A, so that (assuming of course
that B discloses the fact of his agency and his principal's name, and
does not exceed his instructions)

A alone acquires rights against and can sue C ?

C acquires rights against and can sue A only, and

B neither acquires rights nor incurs liabilities under the contract?

The principle of the old civil law was that the only person who
became entitled or bound under a contract was the person who made
it, whether he acted for himself or as agent for some third party.
The only exception of any importance arose from the proprietary
incapacity of persons in potestas, manus, and mancipium : all benefit
arising from contracts made by these vested in their domestic superior,
because it could not vest in them ; so that if A wished to make
a contract in which he should be creditor through an agent, he need
only get a slave or filiusfamilias of his own to stipulate ; whether he
stipulated for himself or for his superior was immaterial. The opera-
tion of this, however, as a form of agency must have been slender, as
the superior could not be bound by the inferior's promises, and
therefore it was inapplicable to the dispositions of everyday life, such
as sale and hire, all of which give rise to bilateral obligation.

How did the matter stand, if the agent employed was an * extranea
persona ?' It has been pointed out, on Bk. iii. 19. 4, that (with a few
exceptions) B could npt make a contract with C for A and in A's
name, so as to entitle the latter against C : and the case in which B
is A's agent is not one of those exceptions. Consequently, if it is
wished to create an obligation at all, it is essential that B should first
make the contract in his own name, for if he said he was merely
acting for A, and that he made no promise for himself, nor intended to

AGENCY. 501

acquire any right for himself, the contract would be void ; to confer
any right on A he must take further measures, shortly to be noticed.
Against this view, however, Savigny (System iii. 95 sq. ; Oblig. ii.
40 sq.), followed by Mr. Poste on Gaius iii. 103 and 162, maintains
that, with the exception of stipulation, the only formal contract surviv-
ing in Justinian's time, B could make any contract for A in the
latter's name, so as to confer rights on him alone and enable him
alone to sue. This is based on Dig. 41. i. 53 'ea quae civiliter
adquiruntur per eos qui in potestate nostra sunt adquirimus, veluti
per stipulationem : quod naturaliter adquiritur, sicuti est possessio,
per quemlibet volentibus nobis possidere adquirimus.' But in this
passage, as has been remarked by many writers, it is probable that
its author, Modestinus, wrote mancipationem, not stipulationem,
which the compilers of the Digest substituted for it as being the only
old formal disposition surviving in their day ; and it is clear, from its
position in the Title * De adquirendo rerum dominio,' that it does not
relate to contracts at all, but only to the question whether anything
more than possession in a res corporalis could be acquired pet extra-
neam personam : see note on Bk. ii. 9. 5 supr. But after all, perhaps
the best criticism of this theory of Savigny's is that of Dr. Hunter,
that if the Roman law had really attained to a true conception of
agency, the fact must have been patent in many texts ; whereas in
point of fact its author is unable to support it by any really pertinent
textual authority, except the very doubtful passage last cited.

Consequently, the agent must make the contract in his own name :
and the desired effect — the conferring of rights, and the imposition ot
duties, upon his principal — was first attained only after the introduc-
tion of the formulary procedure (Gaius iv. 86, 87) and in a very cum-
brous and circuitous manner. If (e. g.) A, being at Rome, wished to
buy a house belonging to C at Naples, he would give B (at Naples) a
mandate to buy it for him. B does so, and then assigns his rights
against C to A, i.e. makes him his procurator in rem suam (cf. p. 482
supr.); C's rights against B, e.g. his claim for the purchase money,
can be made available against A only by a novatio : if this is not
done, C, if necessary, must recover from B by actio venditi, and B
from A by actio mandati contraria. Here none of the conditions
above specified are realized. A, so far from alone acquiring rights
against C under the contract, acquires them only indirectly as his
own agent's assignee ; C acquires rights against A, if at all, not by
the contract of sale, but by the novation to which A is himself a
party ; and B is in fact the principal and true vendee throughout,

5o:i EXCURSUS IX.

and the only person who is entitled and bound in that capacity. In
short, the desired effect is not attained simply by A's making B his
agent, but by a double mandatum and a novatio : A makes B his
agent for the proposed purchase from C : B buys the house : B then
assigns his rights against C to A (result, A alone is entiUed against
C) j A and C then novate B's debt to C by A's promising by stipula-
tion to pay it in lieu of B : (result, C is entitled against A alone).

After becoming B's assignee, the principal (A) at first sued only in
B's name, but later he was allowed to sue in his own by actio utilis
(see p. 482 supr.), though his right of action arose only upon an
actual cessio, which however, if necessary, he could extort from B by
actio mandati: *evictionis actio domino contra venditorem invito
procuratore non datur, sed per actionem mandati ea cedere cogitur '
Dig. 41. 2. 49. 2. There is one passage which appears, in direct
contradiction to this, to affirm that the principal could sue apart
from any assignment ; * quod procurator ex re domini, mandato non
refragante, stipulatur, invito procuratore dominus petere potest ' Dig.
3. 3. 68 ; but here most of the commentators are agreed that a ' non '
has slipped out between petere and potest ; and even without resort-
ing to this textual emendation one may suppose the passage to mean
* whether the agent likes it or not the dominus can sue, because he
can compel him to make an assignment of his rights of action.'
Mainly upon the strength of this passage, however, Savigny (Oblig. i.
243 sq. ] cf. Poste's Gaius, note on iii. 162) has built up a theory
that wherever a cessio could be compelled, it was implied or feigned
to have actually taken place : ergo the principal could always sue by
actio utilis without the necessity for any actual assignment of the
right of action : but this has very slender textual authority, and is
denied by most of Savigny's most eminent successors. It would
seem that the only cases in which an actio utilis was granted to the
principal without actual cessio (and that only causa cognita, after an
inquiry into the facts) are where the principal is a soldier. Dig. 12. i.
26, where the agent is acting for a person * praesens ' in the sense
explained on Bk. iv. 11. 4 inf.. Dig. 45. i. 79; where tfie agent
makes stipulations before the magistrate. Dig. 46. 5. 5, and finally
in special cases where otherwise the principal would be seriously
prejudiced. Dig. 14. i. i. 18.

As for the liabilities arising from the contract made by the agent
with a third party, none of these directly affected the principal by the
civil law at all. He was indirectly answerable for them, because
after they had been satisfied by the agent the latter could sue him by

AGENCY. 503

actio mandati contraria for all expenses he had incurred : but if he
came to stand in a direct obligatory relation with the third party, he
did so only in virtue of an express contract between himself and the
latter, operating a novation of the agent's debt, not under that which
the agent had made on his behalf How far this was altered by the
praetor when the agent was his slave or filiusfamilias is explained
more fully in Bk. iv. Tit. 7 inf. But where a shipowner (exercitor)
appointed any one, whether in his power or not, as captain (magister)
of his ship, the praetor made him directly liable in full, by actio exer-
citoria, upon all business contracts made by the magister as his agent,
e. g. insurances, loans for repairs, etc., Bk. iv. 7. 2 inf. The same
rule was applied by the praetor when one appointed another,
whether in one's power or not, as one's institor, i. e. to manage a
trade or business for one, e. g. as merchant, tailor, banker, etc.; the
principal was made directly liable, by actio institoria, on all contracts
entered into by the institor in the ordinary course of the business.
And eventually, if the contract which the agent made for the principal
did not fall within the scope of either of these two remedies, the latter
was made directly liable in every case by the action called quasi-
institoria or institoria utilis, neither of which names, however, is
classical. Finally, if the agent exceeded his commission, and the
principal was benefited by the unauthorized contract, he was directly
suable pro tanto by the praetorian action de in rem verso, Dig. 15. 3 :
Cod. 4. 26. 7. I : Dig. 17. 2. 82. All four actions belong to the class
known as actiones adiectitiae qualitatis, because they were subsidiary
or additional to the natural remedy against the true contracting party;
for though by these changes the principal had been made directly
liable, the agent had not therefore been exonerated ; the third party,
who contracted with him, had the option of suing whichever he
pleased, the agent by direct action on the contract, or the principal
by actio adiectitiae qualitatis, these two being in fact correi debendi ;
' est autem nobis electio, utrum exercitorem an magistrum convenire
velimus' Dig. 14. x. i. 17, *item si servus mens navem exercebit, et
cum magistro eius contraxero, nihil obstabit quominus adversus ma-
gistrum experiar actione, quae mihi vel iure civili vel honorario com-
petit: nam et cuivis alii non obstat hoc edictum, quominus cum
magistro agere possit: hoc enim edicto non transfertur actio sed
adicitur' Dig. ib. 5. i : and it does not seem to be true, as some
maintain, that the agent's liability ceases as soon as he is no longer
agent, or is limited by the extent of tlie principal's assets.

INTRODUCTION TO BOOK IV.

The first five Titles of this Book relate to the two classes of Obliga-
tions which have not yet been treated, namely, those which arise from
Delict and quasi ex delicto. These, we are told, are all of one
character : that is to say, the existence of the obligation does not
depend in different cases on different * causae,' in the sense in which,
for instance. Sale is binding so soon as the parties have agreed upon
the price, while Exchange produces no vinculum iuris until there has
been performance on one side ; but their ' causa ' is always the same,
viz. a wrongful act (res), upon the commission of which the obliga-
tion at once starts into existence. Of such wrongful acts four have
specific names, and are called Delicts : Theft (furtum). Robbery
(rapina). Injury to property (damnum), and wilful Injury to the
person or reputation (iniuria).

The precise differentia of Delict, as compared with other forms of
legal wrong, and the reason why some of these offences — notably
Theft and Robbery — were ever treated by the Romans as civil
wrongs at all, are topics upon which something is said in the com-
mentary below. The text of the first Title deals with Theft. The
definition of this, as the deliberately wrongful dealing with (moveable)
property, is contrasted with our own English treatment of the offence
by its width and generality. It is Theft not merely to appropriate
what one knows to belong to another, but to barely use a thing of
which one has undertaken the custody or which one holds in pledge,
to turn what has been lent one to a use which it is not believed the
lender would have sanctioned, or even to deprive another of the
possession of an object which one has delivered to him as security
for money owed.

The Romans divide the offence into two orders, according as the
delinquent is or is not detected in its commission ; the penalty in the
first case being a mulct of four times, in the second one of twice the
value of the property stolen : besides this, the offender or his heirs
can be compelled by an independent action to restore the property
itself or its value. Certain obsolete varieties of Theft, punished

INTRODUCTION TO BOOK IV. 505

under the older law by penalties quantitatively differing from these,
are incidentally noticed ; the liability of instigators and accessories
is accurately determined by illustrations; the necessity of Intent
to constitute the offence is dwelt upon ; and finally there is an
examination of the question, what interest will sufHce to enable
a person to bring the penal action.

Robbfery (Title 2) implies Theft ; the injured person consequently
may proceed by either actio furti or bonorum vi raptorum, though
the latter, being praetorian, was, so far as it was penal, barred by
prescription in an annus utilis. The distinction between the two
offences is that Robbery is always accompanied by violence ; there
is also a difference in the nature of the remedy, by which, should the
offence be treated as rapina, both penalty and compensation are
simultaneously recovered, whereas the actio furti is penal only, com-
pensation being obtained by condictio furtiva. A stringent enact-
ment of Valentinian is here noticed, which was designed to check
violent seizure of property, moveable or immoveable, under the
pretence that the seizor believed it to be his own ; a plea which
excluded the presumption of dolus malus, and consequently ex-
empted him from the penalties of both Theft and Robbery. It is
also observed that to enable one to sue on the latter one's interest in
the property may be even more slender than is required to support
an actio furti.

The third Title treats of the lex Aquilia, an early statute which
practically contains the whole of the law of Injury to property,
damnum iniuria datum. The peculiarity of this Delict is that mere
negligence is sufficient to render one liable to its penalties : ' non
minus quam ex dolo ex culpa quisque hac lege tenetur.' What
amounts to negligence in this connection is clearly shown by a
series of illustrations. The lex Aquilia contained three chapters,
the second of which was obsolete under Justinian. The first dealt
with the killing of slaves and certain domesticated animals, and
imposed a penalty of the highest value such slave or animal had
borne at any time within the year immediately preceding. The
third related to almost every other kind of damage to property :
its penalty was such property's highest value within the last thirty
days before the wrong was done. Certain extensions of the statute
by the * interpretatio ' of the older jurists, and by the action of the
praetor, to cases not strictly within its letter are noticed, and the
wide meaning of * damnum ' to be gathered from its terms is illus-
trated by examples.

5o6 INTRODUCTION TO BOOK IV.

The fourth Delict (Iniuria, Title 4) is aimed at the honour, good
name, and reputation of a free person : it comprises such acts as
assault and battery, libel, slander, and in fact all treatment of or
demeanour towards a man by which his character is likely to be
injured, and which is calculated to arouse resentment. It is pointed
out that a wrong of this sort may be inflicted upon one in the person
of one's wife, children, or slaves ; for though the slave himself Ms
no rights whatever, and therefore no good name to injure, yet the
object of an attack upon him may be to dishonour his master. The
penalty for this offence, originally in some cases retaliatory, had
been altered by the praetor to a pecuniary mulct, which the injured
person was allowed within certain limits to fix himself; the con-
siderations upon which its amount depended were in the main his
rank and the circumstances under which the injury had been in-
flicted, which would sometimes bring it within the category of iniuria
atrox. Among minor points touched upon in the text are the bear-
ing of the lex Cornelia upon this subject, the alternative criminal
remedy, the liability of accessories and instigators, and the extinc-
tion of the actio iniuriae by dissimulatio or condonation.

The fifth Title illustrates the class of obligations which arise quasi
ex delicto, and which seem mainly to be cases of vicarious responsi-
bility, such as that of a householder for damage caused by things
' effusa et deiecta ' from his residence, and of an inn or stable keeper
for the delicts of his employes. The reason why a judge was held
liable quasi ex delicto for loss occasioned to suitors by his incapacity
or injustice would seem only to be that such an offence could not
be brought within the definition of any of the four old established
Delicts.

At Title 6 we enter upon the discussion of the last department of
Private Law — ^the ius quod ad actiones pertinet. The division of law
into law of Persons and law of Things is perhaps as old as Cicero
(Invent, i. 24), and apparently was the basis of a classification in the
Perpetual Edict (Dig. i. 5. 2) ; but Gaius, so far as we know, was the
first jurist who added the third division of actiones. It may be
doubted whether his own conception of this branch of his system was
as clear as a more modem writer might have made it. The term
actio, as is shown in the note on Tit. 6. pr., has a variety of meanings
in the writings of the Roman lawyers, and two of them seem to be
more or less blended in Gaius' fourth Book, which wholly relates to
this topic. In one sense, actio is a right of action ; and a treatise
upon rights of action would correspond with what writers on analy-

INTRODUCTION TO BOOK IV. 507

tical Jurisprudence tenn the Law of Sanctioning or Remedial rights.
In another sense actio means the Procedure in an action; taken
thus, the ius quod ad actiones pertinet would correspond to what the
same writers call Adjective Law, and which it is perhaps more proper
to regard as a part of the Public rather than of the Private code.
The fourth Book of Gains would seem to be an ill-arranged attempt
to deal with actio in both of these aspects. It cannot be contended
that it deals solely with Remedial rights : Gains' own explanation of
the term actio in his opening paragraphs shows that he is thinking of
an 'action' rather than of a * right of action,' based, as it is, upon
peculiarities of Procedure and Pleading. In point of fact a very
considerable proportion of the Book deals with Procedure pure and
simple : in other words, * Procedure is treated partly indeed in its
formal character, but still more in its material character : . . . . that
is to say, not so far as it is merely the method of realizing pre-
existing rights, but rather so £ur as its stages are titles which, like
Dispositions and Torts, themselves originate new rights and new
obligations *.'

The compilers of the Institutes, however, seem to have had a very
inadequate conception of Gains' scheme, and indeed to have troubled
themselves very little in this part of the work to follow out consistently
the principle of arrangement for which they were indebted to him.
Strictly speaking, of course, all the Titles between the fifth and the
end of the Book should have related to actions in some sense or
other : but they seem to have considered it better to give the heading
* de actionibus ' to a single Title (6), in which all conceivable rights
of action are classified upon various principles of division, and to
append to this a number of subsidiary Titles dealing mostly with
topics discussed by Gains in a far closer and more logical connection
with his main subject. The effect of this is to give an air of deadness
to the whole treatment, and to disable the compilers from justifying
the place assigned in the fourth Book to some matters for which
Gains himself might possibly have offered some reasonable defence.
For instance, if it is right to describe in Book III the extent to which
a paterfamilias profits by the contracts of a son in his power, or a
master by those of his slave (Tit. 28), that too must be the proper
place to explain what corresponding liability he incurs by them : but
this is discussed in Book IV, Tit. 7, while Titles 8 and 9, though
placed where they are after Gaius, would have occupied a far more

^ Poste, Gains, pp. 40, 484.

5o8 INTRODUCTION TO BOOK IV.

logical position between Titles 5 and 6, in connection with Delict and
quasi-delictual obligation. No doubt this failure to carry out the
original plan of arrangement is in a large measure to be explained by
the great change which had occurred in the nature of Procedure
proper between the composition of the two works. The mode in
which an action was conducted in Justinian's time was so untechnical,
so free from the trammels of law, and so much was left to the discre-
tion of the judge himself, that little could be said upon the matter :
the litigant was no longer liable to be wrecked by the omission of
some slight form ; the administration of justice had become more
' paternal,' and state officials saw that he duly went through many
stages in the process (or went through them for him) for which the
earlier law had left him solely responsible in person. Knowledge of
Procedure was therefore of less importance than in the old days, and
what there was to know could be learnt less satisfactorily from books
than by attending the courts, to which Justinian himself refers the
student (e. g. Tit. 11. 6). Hence it is impossible to give a really
connected view of the matters discussed in the last thirteen Titles of
the Book which lies before us. So far as there ever was a connec-
tion between them, it is to be ascertained by systematically reading
the fourth Book of Gaius, not that of his imitator.

In the sixth Title Actions are divided upon three main principles.

i. According to their content they are divided (a) into real and
personal. A real action is one in which the plaintiff affirms a right
in rem, whether dominium (§ i) or a ius in re aliena (§ 2) ; in a
personal action his contention is that the defendant is under some
specific legal obligation to him. ' Prejudicial ' actions, in which the
issue usually is a question of status, may be regarded as a species of
the former class: in rem esse videntur, § 13; and some actions
* mixtam causam obtinere videntur ' (§ 20), i. e. are at once both real
and personal ; these are the iudicia divisoria, such as suits for the
partition of an inheritance or other joint property, and for the regu-
lation of boundaries. Cross divisions from this same point of view
of content are ( ) that which turns upon the plaintiffs more imme-
diate object, according as it is to obtain mere reparation (actiones rei
persecutoriae, § 1 7), as in real actions and those arising ex contractu ;
to merely recover a penalty (poenae persecutoriae, § 18), as in the
actio furti; or to get compensation and penalty in one (actiones
mixtae, § 19), as in the actions on robbery and under the lex Aquilia,
(c) according to the amount of damages recovered, which may be
simple (e. g. actions on contract, § 22), double (e.g. the actio furti

INTRODUCTION TO BOOK IV. 509

nee manifesti, § 23), triple (§ 24) or quadruple (e.g. the actio furti
manifest!, § 25) ; {d) that which depends upon the possibility of the
plaintiffs being unable to recover the whole of what is his strict legal
due (§ 36), owing to the defendant's liability being merely partial or
conditional on his means : examples of these are given in §§ 36-40.

ii. Actions are called legitimae or civiles if accorded by the civil
law, bonorariae or praetoriae if their source is merely the imperium
of the magistrate, § 3. Praetorian real actions are exemplified by
the actiones Publiciana, Serviana, and hypothecaria, §§ 4-7 ; among
those which are personal are the actiones de pecunia constituta (§ 9),
de peculio (§ 10), and others which are penal (§ 12).

iii. Finally, there is a division the origin of which is to be sought
in the formulary period, and which turns upon the nature of the pro-
cedure. Actiones arbitrariae (§31) are those by which the plaintiff
obtains delivery or production of specific property and possibly
specific performance of contract. Actions in personam are either
stricti iuris or bonae fidei (§ 28), a distinction more fully explained
elsewhere*; the latter class is illustrated by examples, and the
extension of one of its leading features — set off — to the former is
noticed in § 30.

Lastly, thrust into this classification of actions, in deference to
Gains, are one or two topics which would have been better discussed
in some other place. The thirty-second section, which corres-
ponds with Gains iv. 52, should properly form part of Title 17 (*de
officio iudicis ') ; and the explanation of the effects of plus and minus
petitio, and of erroneous as distinct from over claim (§§ 33-35, cor-
responding with Gains iv. 53-60), which really is a matter of Proce-
dure, might be placed in several of the following Titles as appropri-
ately as here.

In the seventh Title are explained the so called * actiones adiecti-
tiae qualitatis,' by which the Praetor had tempered the inequitable
doctrine of the civil law that a master or paterfamilias, though
entitled to all benefit under the contracts of his slaves or children in
power, could in no case be sued upon them. By the actiones quod
iussu, exercitoria, and institoria the superior became liable in soli-
dum whenever it could be shQwn that he had directed or authorized
the contract. Where a slave or filiusfamilias embarked a peculium
in trade with his master's or father's knowledge, and became insol-
vent, the master or father was permitted to distribute the assets

» Note on Bk. iv. 6. aS inf.

5IO INTRODUCTION TO BOOK IV.

among the creditors, though any one of them who was dissatisfied
with such distribution was enabled by the actio tributoria to bring it
under judicial review : if the pater or dominus was himself a creditor,
he was entitled to no larger dividend than the rest Where, on the
other hand, the slave or son made the contract without the superior's
knowledge, the latter was liable in person by the actio de in rem
verso so far as the transaction had resulted in a benefit to himself;
otherwise he could be compelled only to surrender the peculium, and
had the privilege of first deducting from it debts owed to himself
in full. There is also a discussion of the relative advantages to the
creditor of these different actions and of a condictio, where he has
an option ; and in § 7 we have a notice of the SC. Macedonianum,
which refused an action upon money loans given to a child in power
against the latter himself no less than against the paterfamilias.

In the following Title (8) there is a corresponding treatment of the
dominus' and paterfamilias' liability on the delicts of those in their
potestas. The law by which the several delicts had been constituted,
whether civil or praetorian, had given the superior the option of pay-
ing damages or surrendering the delinquent, as a slave or in mancipio,
to the injured person. Justinian definitely confirmed as law the
usage which had grown up under the later Empire, and which limited
this * noxal ' surrender to slaves : children in power were to be per-
sonally liable on their delicts, and the paterfamilias free. The maxim
^ noxalis actio caput sequitur ' is explained in § 5, and in § 6 there is
a discussion of the effects of delicts committed by slaves against their
own masters. The application of noxal surrender in the case of
pauperies, or damage done by certain domesticated animals, is treated
in Title 9, which also gives some account of a penal action intro-
duced by the aedile for the redress of injuries or damage done by
wild animals kept under insufficient control near places of public
resort.

The Titles between the 9th and the 15th have a nearer relation
to Procedure proper than the other parts of this Book, and are all
closely modelled after Gains. The first of them deals, though some-
what uninstructively, with the employment of agents or attorneys in
litigation, which, originally tolerated only in very few cases, had, as
Justinian remarks, become almost universally permissible under the
later practice. Title 1 1 gives a historical account of the earlier law
as to the security to be given by plaintiffs and defendants, especially
when represented by such attorneys, and then proceeds to state the
rules in force upon this subject under Justinian, and Title 12 dis-

INTRODUCTION TO BOOK IV. 511

cusses the active and passive transmission of rights of action, their
extinction by a longer or shorter prescription, and the right of a
defendant under the maxim 'omnia iudicia absolutoria ' to be
acquitted if he satisfied the plaintiflPs claim at any moment before
judgment.

Exceptiones — a class of defences consisting in the plea of a
countervailing right as distinct from a direct denial of the plaintiflPs
allegations — form the subject of Title 13, and are copiously illus-
trated in its first few paragraphs. The most important classification
of them, which turns upon the energy of their operation in respect of
time and persons, is then pointed out and exemplified, and the effect
of a plaintiff's bringing his action before really entitled to do so, both
under the older law and as regulated by an enactment of Zeno, is
carefully described. The possibility of meeting a defendant's exceptio
by a repHcatio on the part of the plaintiflT — a fencing process which
might be carried to any length by duplicationes, triplicationes, etc. —
is noticed and illustrated in Title 14, which concludes with a state-
ment of the law as to how far sureties could defend themselves by
the exceptiones of their principal. The subject of the 15 th Title is
interdicts, a class of actions relating for the most part to Possession
and Quasi-possession, the acquisition and retention of which are
lightly touched upon in § 5. The procedure in interdicts, which in
the formulary period had been of a peculiar and complicated nature,
of which some account is given iri the notes, was under Justinian (as
he points out in § 8) much the same as in an ordinary action. In
general they are divided according as the object for which the inter-
dict is brought is the prevention of some unlawful act, or the restitu-
tion or production of property : those which relate exclusively to
possession fall into three classes, adipiscendae, retinendae, and
recuperandae possessionis causa ; the first kind is illustrated by the
interdicta Salvianum and quorum bonorum, the second by uti possi-
detis and utrubi (in describing which the older procedure is inci-
dentally touched upon), and the last by unde vi. Finally, interdicts
are divided into simple and double, the latter being those in which
neither party plays exclusively the rd/e of either plaintiff or de-
fendant ; a peculiarity from which had resulted the very complicated
character of their procedure as described by Gaius. This is followed
in Title 16 by an account of the precautions taken by Roman law to
prevent people from either beginning or defending actions without
just and reasonable cause. Among these are the oath exacted from
both parties and their counsel that they honestly believe their case

512 INTRODUCTION TO BOOK IV.

to be a good one ; the duplication of damages in some actions if the
defendant denied his liability ; the association of infamia iinth con-
demnation in others ; and the obligation of the losing side to pay the
other's costs. The last paragraph relates to summons, and to the
penalty inflicted oh freedmen and children in power if they presumed
to commence litigation against their patron or paterfamilias without
first obtaining the praetor's permission. Title 1 7 explains the duties
of the judge in different kinds of suits, real and noxal actions and the
iudicia divisoria being selected for special treatment ; and in Title
18, the Book concludes with a short account of public prosecutions,
and the leading statutes by which crimes were defined, and their
punishment prescribed. Treason is dealt with in § 3 : adultery and
similar offences in § 4 : murder in § 5, and the peculiar form of it
known as parricidium in § 6 : forgery in § 7 : violence to the person
in § 8 : embezzlement in § 9 : manstealing and kidnapping in § 10 :
and a variety of minor offences punished more lightly than these in

§11.

LIBER QUARTUS.
I.

DE OBLIGATIONIBUS QUAE EX DELICTO NASCUNTUR.

Cum expositum sit superiore libro de obligationibus ex
contractu et quasi ex contractu, sequitur ut de obligationibus
ex maleficio dispiciamus. sed illae quidem, ut suo loco
tradidimus, in quattuor genera dividuntur: hae vero unius
generis sunt, nam omnes ex re nascuntur, id est ex ipso
maleficio, veluti ex furto aut rapina aut damno aut iniuria.

Tit. I. A delict is usually defined as a violation of a ius in rem which
generates an obligation remissible by the private individual who is wronged.
This, though it serves to distinguish delict, as a source of obligations, from
contract, and as a private wrong from a crime, is insufficient when applied
to Roman law. Such wrongs as the withholding of possession by a de-
fendant who bona fide believes in his own title are not delicts, at any rate
in the specific sense in which the term is used in the Institutes ; they give
rise, it is true, to a right of action, but a right of action is a different thing
from an obligatio ex delicto : they are redressed by mere reparation, by
the wrong-doer being compelled to put the other in the position in which
he would have been had the wrong never been committed. But delicts,
as contrasted with them and with contracts, possess three peculiarities.
The obligations which arise from them are independent, and do not
merely modify obligations already subsisting : they always involve dolus
or culpa ; and the remedies by which they are redressed are penal. From
every true delict arises an obligation to pay a penalty to the person who
pursues it ; and from every delict which causes damnum or proprietary
loss arises also an obligation to compensate the injured person for that
loss. This latter obligation, though it does not enrich the person wronged,
may itself be penal— as where the wrong-doer has derived little or no
material benefit from the wrong, so that after making compensation he is
poorer than before he committed the delict. In such cases the action is
treated as a penal action ; e. g. in not being, passively transmissible ex-
cept so£ur as the delinquent's property has been augmented by the wrong ;
Savigny proposes to term it ^unilaterally penal.' The two obligations
arising from delicts which cause proprietary loss are not always pursued

Ll

514 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

1 Furtum est contrectatio rei fraudulosa vel ipsius rei vel
etiam usus eius possessionisve, quod lege natural! prohibitum

by difTerent remedies ; this is so in furtum, but in rapina and damnum in-
iuria datum both penalty and compensation are recovered by a single
action, which for that reason is called mixta ; i. e. it is ^ tam rei quam
poenae persequendae comparata ' Tit 6. 19 inf.

Gaius' remark (iii. 182) that all delicts are of one kind, which Justinian
here explains by saying that they all 'ex re nascuntur,' means that in them
the obligation is not produced (as in contracts) by difTerent causae ; it
springs from the wrongful act itself, and from that alone. The use of the
word ^ res ' (for which cf. the line cited from Terence p. 465 supr.) is
unhappy, because it suggests a reference, as probably Justinian intended,
to the obligations quae re contrahuntur, Bk. iii. 14 supr. ; in the Digest
the idea is better expressed by ' factum : ' ' ex ^sicto actio est, quotiens ex
eo teneri quis incipit quod ipse admisit, veluti furtum vel iniuriam commi-
sit vel damnum dedit' Dig. 44. 7. 25. i ; ib. 52. 8.

Of the four delicts here mentioned furtum and iniuria are older than
the others, both being treated in the Twelve Tables, Gaius iii. 189, Tit. 4.
7 inf. Damnum iniuria datum was constituted a specific delict by the lex
Aquilia, 287 B. c, and rapina or robbery by the praetor's edict, B. c 77.

§ 1. This definition requires expansion in two particulars. To rei
should be added mobilis (see Bk. ii. 6. 7 supr.) : and the motive must be
gain ; a point marked in the counterpart of the definition given in Dig.
47. 2. I. 3 (lucri faciendi causa) : cf. Dig. ib. 43. 4 ; ib. 65. Its terms re-
quire some elucidation. Contrectatio implies that without an 'overt act'
there can be no furtum : cf. § 6 inf., and Dig. 47. 2. 52. 19 ' neque verbo
neque scriptura quis furtum facit, hoc enim iure utimur, ut furtum sine
contrectatione non fiat ; ' but the nature of this overt act may be manifold,
as will appear below. Fraudulosa implies unlawful intention ; intention,
because furtum ex affectu consistit, §§7 and 18 inf. ; and unlawful intention,
because if the person acting honestly believes that his act will not be ob-
jected to by the person wronged, it is not theft : ' si permissurum credant,
extra crimen videri ' § 7 inf., though whether in cases such as that of which
Justinian is immediately speaking unlawful intention would not be a pre-
sumption iuris et de iure is a question. The animus lucri faciendi fiails, if
the wrong-doer's intention is merely to cause a damage to the other ; e. g.
if he takes property intending immediately to throw it into the sea. Dig.
19. 5. 14. 2 ; but the requirement of its presence is satisfied if the intention
is not to aggrandize oneself pecuniarily, but to benefit oneself in some
other way — e.g. where one steals a ring in order to make a present of it :
' nam species lucri est ex alieno largiri et beneficii debitorem sibi adqui-
rere ' Dig. 47. 2. 55. i. The division into furtum rei ipsius— usus— posses-
sionisve is not designed to distinguish different species of theft (for of
these there are but two, § 3 inf.), but to suggest the comprehensive char-
acter of the delict, and the chief forms which the contrectatio might take.
Its meaning in efifect is this : the general character of furtum consists in

Tit. 1.] DE OBLIGATIONIBUS QUAE, ETC. 515

est admittere. Furtum autem vel a furvo id est nigro dictum 2
est, quod clam et obscure fit et plerumque nocte: vel a
fraude : vel a ferendo, id est auferendo : vel a Graeco sermone,
qui ^^pa% appellant fures. immo etiam Graeci hnh rov ^kpuv
<l>&pas dixerunt. Furtorum autem genera duo sunt, mani- 3

intentionally dealing with a res mobilis in a wrongful manner, and usually
the res is aliena, whether the intention be to appropriate ownership in it
(ipsius rei) or merely to use it in an unauthorized manner (usus) ; but it
is possible to commit theft on property of one's own, though to do this it
is as a rule essential that the property should be in the lawful possession
of another person, the intention being to dispossess the latter (posses-
sionis). By Theophilus furtum possessionis is understood to mean the
wrongful appropriation of a thing by a person who already has possession
or detention of it (irt t6 hoB€V <Vc r^ vifittr&ai &s cW^vpoy $ &t h€ir6<nrov
vtfAOfiai w9 dttm&nis), in other words, the arbitrary and wrongful conversion
of detention or civil possession into usucapion possession corpore et
animo ; but this is rather furtum ipsius rei, and Theophilus' view is
discountenanced by §§ 6-10 inf. : cf. Dig. 47. 2. 74.
Furtum then may occur in any of the following ways :
(i) Theft in the popular sense : ' cum quis rem alienam invito domino
contrectat ' § 6 ; 'fur est, qui dolo malo rem alienam contrectat ' Paul. sent,
rec. 2. 31. I.

(2) The wrongful appropriation of a res aliena which one already
possesses or detains, e.g. as depositary, agent, usufructuary, etc. (cf.
Theophilus supr.) ; of this no illustrations are given in this Title, but see
Dig. 47. 2. 1. 2 ; ib. 33 ; ib. 43. i ; 16. 3. 29 ; 17. i. 22. 7.

(3) The wrongful appropriation of property found, Bk. ii. i, 48 supr.,
Dig. 47. 2. 43. 4-1 1.

(4) The mala fide alienation of a res aliena, Bk. ii. 6. 3 supr.

(5) The wilful destruction of bonds in order to destroy evidence of debt,
Dig. 47. 2. 27. 3 ; ib. 32.

(6) The wrongful using of a res aliena of which one has possession or
detention, e. g. by depositarius, pledgee, or commodatarius, § 6 inf.

(7) Furtum of res sua, § 10 and notes, inf.

For the prohibition of furtum by natural law cf. Cic. de off. 3. 5 * illud
natura non patitur, ut aliorum spoliis nostras facultates augeamus,'
Augustin. Confess. 2. 4. i 'furtum certe punit lex scripta in cordibus
hominum.' Among certain peoples (e. g. the Egyptians, Lacedaemonians,
and Samians) theft is said to have been allowed by their own municipal
law ; Diodor. Sic. I. 80, Xenophon, rep. Laced. 2. 8, Plutarch, Lycurgus
12.

§ 2. The derivation of furtum from furvus, which is Varro's (Bk. 14)
was approved by Labeo,and apparently by.Paulus, Serv. ad Verg. Georg.
iii. 405 ; that from * fraus ' was suggested by Sabinus : <^Ap is connected
with <^€pccv in more than one old work on etymology.

§ 8. The jurists seem to have differed as to the true definition of

L 1 2

5i6 INSTITVTIONUM UBRI QUATTUOR. [Lib. IV.

festum et nee manifestum. nam conceptual et oblatum
species potius actionis sunt furto cohaerentes quam genera
furtorum, sicut inferius apparebit. manifestus fur est, quern
Graeci inr avTo<f>(ip(^ appellant: nee solum is qui in ipso
furto deprehenditur, sed etiam is qui eo loco deprehenditur,
quo fit, vduti qui in domo furtum fecit et nondum egressus
ianuam deprehensus fuerit, et qui in oliveto olivarum aut in
vineto uvarum furtum fecit, quamdiu in eo oliveto aut in
vineto fur deprehensus sit : immo ulterius furtum manifestum
extendendum est, quamdiu eam rem fur tenens visus vel
deprehensus fuerit sive in publico sive in privato vel a domino
vel ab alio, antequam eo perveniret, quo perferre ac deponere
rem destinasset. sed si pertulit quo destinavit, tametsi de-
prehendatur cum re furtiva, non est manifestus fur. nee
manifestum furtum quid sit, ex his quae diximus intellegltur :
nam quod manifestum* non est, id scilicet nee manifestum
4 est. Coneeptum furtum dicitur, cum apud aliquem testibus
praesentibus furtiva res quaesita et inventa sit : nam in eum
propria actio eonstituta est, quamvis fur non sit, quae ap-
pellatur concepti. oblatum furtum dicitur, cum res furtiva

furtum manifestum; Gaius (iii. 184) gives several proposed tests, one of
which (the finding of the thief at any time with the stolen property in his
actual possession, rem tenens) he says was generally rejected ; while the
qualification of this with which Justinian adopts it (that he must not yet
have conveyed it where he intended), though accepted by Sabinus (Gel-
lius II. 18. i), caused difficulty to Gaius * quia videbatur aliquam admittere
dubitationem, unius diei an etiam plurium dierum spatio id terminandum
sit ; quod eo pertinet, quia saepe in aliis civitatibus subreptas res in alias
civitates vel in alias provincias destinat fur perferre.' Paulus gets over
this by strictly limiting the time : ' quo destinaverat quis auferre ' sic
accipiendum est, 'quo destinaverat eo die manere cum eo furto ' Dig. 47.
2. 4. Practically Justinian's definition of the offence was accepted in the
time of Gaius.

As a rule, arrest (deprehensio) actual or attempted was necessary to
constitute furtum manifestum ; it was not enough merely to see the thief
in the commission of the act or with the stolen goods in his possession,
Dig. 47. 2. 7. I and 2.

§ 4. The penalty for furtum coneeptum and oblatum was fixed by the
Twelve Tables at three times the value of the property stolen, Gaius iii.
191. The offence of furtum prohibitum, for which the praetor established
a penalty of four times the value (Gaius iii. 192) was not recognised by
the decemviral legislation, apparently, it has been suggested, because the

Tit. 1.] DE OBLIGATIONIBUS QUAE, ETC. 517

ab aliquo tibi oblata sit eaque apud te concepta sit, utique si
ea mente tibi data fuerit, ut apud te potius quam apud eum
qui dederit conciperetur : nam tibi, apud queni concepta sit,
propria adversus eum qui optulit, quamvis fur non sit, con-
stituta est actio, quae appellatur oblati. est etiam prohibiti
furti actio adversus eum, qui furtum quaerere testibus prae-
sentibus volentem prohibuerit. praeterea poena constituitur
edicto praetoris per actionem furti non exhibiti adversus eum,
qui furtivam rem apud se quaesitam et inventam non exhibuit*
sed hae actiones, id est concepti et oblati et furti prohibiti
nee non furti non exhibiti, in desuetudinem abierunt. cum
enim requisitio rei furtivae hodie secundum veterem obser-
vationem non fit: merito ex consequentia etiam praefatae
actiones ab usu communi recesserunt, cum manifestissimum
est, quod omnes, qui scientes rem furtivam susceperint et
celaverint, furti nee manifesti obnoxii sunt. Poena manifest! 5
furti quadrupli est tam ex servi persona quam ex liberi, nee
manifesti dupli.

house was according to the primitive view not only an asylum, but under
the special protection of the household gods — ^Vesta and the Penates —
who dwelt and were worshipped there. But the Twelve Tables provided
that if, after search was resisted, actual search was made with peculiar
formalities, and the stolen property was discovered, the furtum should be
treated as manifestum, Gaius iii. 192-4. This was called furtum lance et
licio conceptum, and must have become obsolete when the praetor had
imposed the same penalty for mere resistance to search. When
Justinian says that search for stolen property was in his day no longer
conducted secundum veterem observationem he means, in the presence
of witnesses {romari fiaprvpc^v rrapovr^v Theoph.) ; it was undertaken by
public officers. Dig. 11. 4. 3, a practice which seems to have been in use in
the time of Plautus : * ad praetorem ibo, ut conquisitores mihi det ' Mercat.
3. 4. 78. Furtum conceptum and oblatum had been coordinated with
manifestum and nee manifestum by Servius Sulpicius and Sabinus as
distinct species of theft ; Gaius agreed with Labeo that they were
* species potius actionis furto cohaerentes quam genera furtorum* iii. 183.
The offence of furtum non exhibitum is not mentioned except in this
passage of the Institutes.

§ 6. The penalty fixed by the Twelve Tables for furtum manifestum
had been capitalis, Gaius iii. 189 ; if the fur was a free man, he was
flogged, and then addictus to the person he had wronged ; if a slave, he
was flogged and hurled from the Tarpeian rock ; and a thief who resisted

5l8 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

6 Furtum autem fit non solum, cum quis intercipiendi causa
rem alienam amovet, sed generaliter cum quis alienam rem
invito domino contractat. itaque sive creditor pignore sive is
apud quem res deposita est ea re utatur sive is qui rem
utendam accepit in alium usum earn transferat, quam cuius
gratia ei data est, furtum committit. velutt si quis argentum
utendum acceperit quasi amicos ad cenam invitaturus et id
peregre secum tulerit, aut si quis equum gestandi causa
commodatum sibi longius aliquo duxerit, quod veteres scrip-

7 serunt de eo, qui in aciem equum perduxisset. Placuit tamen
eos, qui rebus commodatis aliter uterentur, quam utendas
acceperint, ita furtum committere, si se intellegant id invito
domino facere eumque si intellexisset non permissurum, ac si
permissurum credant, extra crimen videri ; optima sane dis-
tinctione, quia furtum sine affectu furandi non committitur.

8 Sed et si credat aliquis invito domino se rem commodatam
sibi contrectare, domino autem volente id fiat, dicitur furtum

arrest, or who stole by night, might be killed. The ' asperitas ' of this
punishment led to the praetor's substituting the pecuniary penalty
mentioned in the text in all cases, Gaius ib. ; that for furtum nee mani-
festum was fixed from the outset by the Twelve Tables. The reason why
the two offences w^ere so differently treated was ' because the legislator
wished, by the amplitude of the legal remedy offered, to induce the
aggrieved party not to take the law into his own hands and inflict
summary vengeance on the offender' Mr. Poste on Gaius iii. 179; cf.
Excursus X inf.

§ e. Intercipere means the appropriation of ownership, quod alienum
est, sibi habere : the illustrations given here fall under (6) p. 51 5 supr. For
a creditor to sell the pignus against the terms of his contract was no less
theft than using it, Dig. 47. 2. 74. The person ' qui rem utendam accepit '
is the commodatarius.

§ 7. In the corresponding passage of Gaius (iii. 197) for 'sine afllectu
furandi ' we read * sine dolo malo.' Sabinus (Gell. 1 1. 18), and perhaps also
Labeo, had held that a commodatarius should be held guilty of theft in
this case, if the dominus would not as a fact have consented to his using
the res commodata in the particular way, 'cum id se invito domino
facere iudicare deberet.' But without express knowledge that his per-
mission would not have been given there could be no dolus.

§ 8. After stating this case Gaius (iii. 198) says ' responsum, neutro
teneri : furto, ideo quod non invito me rem contrectavit : servi comipti,
ideo quod deterior servus factus non est : ' and this statement of the law
seems never to have been questioned by the jurists. Justinian's own en-

Tit.i.] DE OBUGATIONIBUS QUAE, ETC. 519

non fieri, unde lUud quaesitum est, cum Titius servum Maevii
soUicitaverit, ut quasdam res domino subriperet et ad eum
perferret, et servus id ad Maevium pertulerit, Maevius, dum
vult Titium in ipso delicto deprehendere, permisit servo
quasdam res ad eum perferre, utrum furti an servi corrupti
iudicio teneatur Titius, an neutro ? et cum nobis super hac
dubitatione suggestum est et antiquorum prudentium super
hoc altercationes perspeximus, quibusdam neque furti neque
servi corrupti actionem praestantibus, quibusdam furti tantum-
modo : nos huiusmodi calliditati obviam euntes per nostram
decisionem sanximus non solum furti actionem, sed etiam
servi corrupti contra eum dari : licet enim is servus deterior
a sollicitatore minime factus est et ideo non concurrant
r^ulae, quae servi corrupti actionem introducerent, tamen
consilium corruptoris ad perniciem probitatis servi introductum
est, ut sit ei poenalis actio imposita, tamquam re ipsa fuisset
servus corruptus, ne ex huiusmodi impunitate et in alium
servum, qui possit corrumpi, tale facinus a quibusdam per-
petretur. Interdum etiam liberorum hominum furtum fit, 9
veluti si quis liberorum nostrorum, qui in potestate nostra sit,
subreptus fuerit. Aliquando autem etiam suae rei quisque 10
furtum committit, veluti si debitor rem quam creditor! pignoris
causa dedit subtraxerit.

actment is in Cod. 6. 2. 20. For concurrence of actions on the same set
of circumstances see Tit. 9. i inf.

§ 9. As free persons who could be stolen, besides children in power,
Gains speaks of wives in manu, iudicati (insolvent debtors who had been
addicti) and hired gladiators (auctorati) : the offence could be proceeded
against criminally under the lex Fabia, Tit. 18. 10 inf. Children in power,
if stolen, were recovered by vindicatk). Dig. 6. i. i. 2, damages in which
were estimated by the pecuniary loss which the pater had suffered, r^
tia<l}€pov Theoph. : cf. Tit. 5. i inf. 'ob hominem liberum .... quantum
ob earn rem aequum iudici videtur.'

§ 10. Theft of a res sua was so uncommon a case that in defining
furtum the jurists often forget to take it into consideration : § 6 supr., rem
alienam : cf. Sabinus' definition in Gell. 11. 18 and Paul, sent.rec. 2. 31. i
cited on (i) p. 515 supr. Paulus even goes so far as to say 'rei nostrae
furtum facere non possumus' ib. 21. An owner committed theft by
taking his property away from a person who had mere detention of it
only if the latter had a legal right to detain it, Dig. 47. 2. 15. 2, e. g. a usu-
fructuary. Dig. ib. I : ib. 20. i, and a bona fide possessor, Gains iii. 200.

520 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV,

11 Interdum furti tenetur, qui ipse furtum non fecerit : qualis
est, cuius ope et consilio furtum factum est. in quo numero
est, qui tibi nummos excussit, ut alius eos raperet, aut obstitit
tibi, ut alius rem tuam exciperet, vel oves aut boves tuas
fugaverit, ut alius eas exciperet : et hoc veteres scripserunt
de eo, qui panno rubro fugavit armentum. sed si quid
eorum per lasciviam et non data opera, ut furtum admit-
teretur, factum est, in factum actio dari debeat. at ubi ope
Maevii Titius furtum fecerit, ambo furti tenentur. ope consilio
eius quoque furtum admitti videtur, qui scalas forte fenestris
supponit aut ipsas fenestras vel ostium effringit, ut alius fur-
tum faceret, quive ferramenta ad effringendum aut scalas ut
fenestris supponerentur commodaverit, sciens cuius gratia
commodaverit. certe qui nuUam operam ad furtum faciendum
adhibuit, sed tantum consilium dedit atque hortatus est ad

12 furtum faciendum, non tenetur furti. Hi, qui in parentium
vel dominorum potestate sunt, si rem eis subripiant, furtum
quidem illis faciunt et res in furtivam causam cadit nee ob id
ab uUo usucapi potest, antequam in domini potestatem re-
vertatur, sed furti actio non nascitur, quia nee ex alia ulla
causa potest inter eos actio nasci : si vero ope consilio alterius
furtum factum fuerit, quia utique furtum committitur, con-
venienter ille furti tenetur, quia verum est ope consilio eius
furtum factum esse.

It was equally furtum for a pledgor to alienate the pignus without the
pledgee's consent. Dig. 47. 2. 19. 6 : so too with property merely hypothe-
cated, ib. 66. The res sua which was stolen by a dominus never became
furti va so as to impede usucapion. Dig. ib. 20. i.

§ IL * Consilium dare videtur, qui persuadet et impellit atque instniit
consilio ad furtum faciendum : opem fert, qui ministerium atque adiuto-
rium ad subripiendas res praebet * Dig. 47. 2. 50. 3. Instead of the actio
in factum, which lay in the case of lascivia, there would be an actio utilis
under the lex Aquilia if the alarm of the cattle at the red rag led to any
of them being actually injured, Gaius iii. 202, Tit. 4. 16 inf.. Dig. 47. 2. 50.
4; ib. 51 ; 9. 2. 27. 21. Though the poena could be recovered from
accessories no less than from principals, they could not be sued by con-
dictio furtiva, for which see on § 19 inf.. Dig. 13. i. 6.

§ 12. Cf. Bk. ii. 6. 8 supr. The master could not sue the slave, nor
the father the son, even after he had left his power. Tit. 8. 6 inf. : but the
offender could be punished at once by invoking the aid of the praetor if the
theft was serious, Dig. 48. 19. 11. 1.

Tit. I.] DE OBLIGATIONIBUS QUAE, ETC. 5^1

Furti autem actio ei competit, cuius interest rem salvamlS
esse, licet dominus non sit : itaque nee domino aliter competit,
quam si eius intersit rem non perire. Unde constat creditorem 14
de pignore subrepto furti agere posse, etiamsi idoneum de-
bitorem habeat, quia expedit ei pignori potius incumbere quam
in personam agere: adeo quidem ut, quamvis ipse debitor
eam rem subripuerit, nihilo minus creditori competit actio
furti. Item si fullo polienda curandave aut sarcinator sar- 15
cienda vestimenta mercede certa acceperit eaque furto amiserit,
ipse furti habet actionem, non dominus, quia domini nihil
interest eam rem non perire, cum iudicio locati a fullone aut
sarcinatore rem suam persequi potest, sed et bonae fidei
emptori subrepta re quam emerit,. quamvis dominus non sit,
omnimodo competit furti actio, quemadmodum et creditori.
fulloni vero et sarcinatori non aliter furti competere placuit,
quam si solvendo sint, hoc est si domino rei aestimationem
solvere possint : nam si solvendo non sunt, tunc quia ab eis

§ 13. The object of the actio furti was the recovery of the poena dupli
or quadrupli fixed by law. The rule as to who could bring it is simi-
larly laid down by Gaius iii. 203, and Paulus ; * furti actione is agere potest,
cuius interest rem non periisse' sent. rec. 2. 31. 4. All of these statements,
however, are somewhat too wide: *neque .... cuiuscunque intererit,
rem non perire, habet furti actionem * Dig. 47. 2. 14. 10 : the action lay at
the suit only of the owner, bona fide possessor, or person who had
detention of or some real right (e. g. usufruct, hypotheca) in the stolen
property less than ownership, and then only if he was prejudiced by the
theft. Hence the vendee before delivery was debarred from suing in his
own name, Dig. 47. 2. 14. pr. : ib. 80. pr., as also was the depositary
under ordinary circumstances, § 17 inf., and all others who had merely
rights in personam in respect of the property stolen, e. g. the promisee in
a stipulation. Dig. 47. 2. 86.

§ 14. It seems at one time to have been doubtful whether the pledgee
ought to be allowed to bring actio furti if the pledgor was solvent
(idoneus) ; * sed utrum semper creditoris interest, an ita demum, si debitor
solvendo non est? et putat Pomponius semper eius interesse pignus
habere, quod et Papinianus . . . probat' Dig. 47. 2. 12. 2. Papinian even
thought that if two things were pledged for one debt, and one of them
was stolen, the pledgee ought to be allowed actio furti even if the other
alone was adequate security, Dig. ib. 14. 5.

§ 16. The clothes are at the risk of the fiiUo or sarcinator. Dig. 47. 2. 14.
16. The words idem est et si . . . sarcinator apparently refer to solvency,
not insolvency ; see the end of § 16. A mala fide possessor had no actio

522 INSTITUTIONUM UBRI QUATTUOR. [Lib. IV.

suum dominus consequi non possit, ipsi domino furti actio
competit, quia hoc casu ipsius interest rem salvam esse,
idem est et si in parte solvendo sint fuUo aut sarcinator.
16 Quae de fullone et sarcinatore diximus, eadem et ad eum
cui commodata res est transferenda veteres existimabant :
nam ut ille fullo mercedem accipiendo custodiam praestat,
ita is quoque, qui commodum utendi percipit, similiter necesse
habet custodiam praestare. sed nostra providentia etiam
hoc in decisionibus nostris emendavit, ut in domini sit volun-
tate, sive commodati actionem adversus eum qui rem com-
modatam accepit movere desiderat, sive furti adversus eum
qui rem subripuit, et alterutra earum electa dominum non
posse ex paenitentia ad alteram venire actionem, sed si
quidem furem elegerit, ilium qui rem utendam accepit penitus
liberari. sin autem commodator veniat adversus eum qui
rem utendam accepit, ipsi quidem nuUo modo competere
posse adversus furem furti actionem, eum autem, qui pro
re commodata convenitur, posse adversus furem furti habere
actionem, ita tamen, si dominus sciens rem esse subreptam
adversus eum cui res commodata fuit pervenit: sin autem
nescius et dubitans rem non esse apud eum commodati ac-
tionem instituit, postea autem re comperta voluit remittere
quidem commodati actionem, ad furti autem pervenire, tunc
licentia ei concedatur et adversus furem venire nuUo obstaculo
ei opponendo, quoniam incertus constitutus movit adversus
eum qui rem utendam accepit commodati actionem (nisi
domino ab eo satisfactum est : tunc etenim omnimodo furem
a domino quidem furti actione liberari, suppositum autem esse
ei, qui pro re sibi commodata domino satisfecit), cum mani-
festissimum est, etiam si ab initio dominus actionem instituit
commodati ignarus rem ^s&e, subreptam, postea autem hoc ei

fiirti, though the property was at his risk. Dig. 47. 2. 14. 4. The interest
of the bona fide possessor, in virtue of which he could sue, was his right
to the fruits and the interruption of usucapio, not his liability to the real
dominus, which accrued only after the latter had joined issue with him in
an action to establish his ownership. Dig. 5. 3. 25. 7.

§ 16. The only jurists who to our knowledge discussed this question
(Gaius iii. 206, Q. Mucius, Dig. 13. 6. 5. 3, Celsus, Julianus, and Papinian,
Dig. 47. 2. 14 ; ib. 15. 2 ; ib. 48. 4, etc.) were for observing the same rules

Tit. I.] DE OBUGATIONIBUS QUAE, ETC. 523

cognito adversus furem transivit, omnimodo liberari eum
qui rem commodatam accepit, quemcumque causae exitum
dominus adversus furem habuerit : eadem definitione opti-
nente, sive in partem sive in solidum solvendo sit is qui rem
commodatam accepit. Sed is, apud quern res' deposita est, 17
custodiam non praestat, sed tantum in eo obnoxius est, si
quid ipse dolo malo fecerit : qua de causa si res ei subrepta
fuerit, quia restituendae eius nomine deposit! non tenetur nee
ob id eius interest rem salvam esse, furti agere non potest,
sed furti actio domino competit. In summa sciendum est 18
quaesitum esse, an impubes rem alienam amovendo furtum
faciat. et placet, quia furtum ex affectu consistit, ita demum
obligari eo crimine impuberem, si proximus pubertati sit et
ob id intellegat se delinquere. Furti actio sive dupli sive 19
quadrupli tantum ad poenae persecutionem pertinet : nam
ipsius rei persecutionem extrinsecus habet dominus, quam aut
vindicando aut condicendo potest auferre. sed vindicatio
quidem adversus possessorem est, sive fur ipse possidet sive
alius quilibet: condictio autem adversus ipsum furem here-
demve eius, licet non possideat, competit

where a thing was commodata as where it was locata. Justinian's enact-
ment is in Cod. 6. 2. 22.

§ 17. If a depositary fraudulently enabled a depositum to be stolen, he
was liable to actio depositi, and could not sue the thief himself, ' non enim
debet ex dolo suo furti quaerere actionem * Dig. 47. 2. 14. 3 and 4. He
was also liable if he had undertaken the custodia, note on Blc iii. 14. 3
supr., and then apparently could bring the penal action, Dig. 47. 2. 14.
16 ; 47. 8. 2. 23 and 24.

§ 18. For proximus pubertati see on Bk. iii. 19. 10 supr.

§ 19. The option allowed to the owner of stolen property between a
real and a personal action is noted as an anomaly in Tit. 6. 4 inf. after
Gaius iv. 4. Furtum in no case transferred ownership, so that, as the
owner of the goods stolen remained their owner, the only action logically
open to him was a vindicatio. If the goods had been destroyed, or if,
being money, it had been spent or mixed with money belonging to the
thief, his ownership would have been extinguished, and (though only in
this and some analogous cases, Bk. ii. i. 26 and note supr.) a condictio
would have lain ; but if he could not prove this, e. g. if the property
had been lost or concealed, he was, strictly speaking, debarred from a
personal action, which, however, he was allowed to institute in every case,
if he preferred it, to vindicatio, in order to relieve him from the necessity
of ascertaining the facts. If then the owner knew who possessed the stolen

534 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

11.

VI BONORUM RAPTORUM.

Qui res alienas rapit, tenetur quidem etiam furti (quis
enim magis alienam rem invito domino contrectat, quam
qui vi rapit? ideoque recte dictum est eum improbum furem
tsst): sed tamen propriam actionem eius delicti nomine
praetor introduxit, quae appellatur vi bonorum raptorum
et est intra annum quadrupli, post annum simpli. quae
actio utilis est, etiamsi quis unam rem licet minimam ra-
puerit quadruplum autem non totum poena est et extra
poenam rei persecutio, sicut in actione furti manifesti diximus :
sed in quadruplo inest et rei persecutio, ut poena tripli sit,

property, his natural remedy was vindicatio against him ; but if he did
not know where it was, he could bring condictio furtiva against the thief
or his heir for the recovery either of it with fruits, accessions, etc, or of
its value with interest, Dig. 13. i. 3; ib. 8. 2. It might be more to his
interest even to bring an actio ad exhibendum (Tit. 6. 31 inf.), which
would lie against any one who had the property in his possession, or had
fraudulently parted with it : if it were not produced the defendant wouJd
have to pay the plaintifTs ' interest ' and this might be more than the value
recoverable by condictio : see Dig. 12. 1. 11. That the condictio furtiva is
not delictual, and that the obligation which it enforces does not arise ex
delicto, is clear from this very fact, that the heir is liable in solidum, not
merely * pro eo quo divitior factus est'

The treatment of furtum as a civil wrong is quite in keeping with the
history of Roman law, in which the notion of crime was of exceedingly
slow development ; see Hunter's Roman 'Law p. 904, Maine's Ancient
Law chap. x. Under the empire, however, the general rule was that any
one who could bring a penal action on a delict (other than damnum)
might, if he preferred it, prosecute the delinquent before a criminal
tribunal, Dig. 47. i. 3, forfeiting, however, thereby his right to recover the
poena, Dig. 47. 2. 56. i. Theft indeed was in the time of the classical
jurists most usually made the subject of criminal proceedings, though
not under any of the regular iudicia publica (Tit. 18. inf.) : 'meminisse
oportebit nunc furti plerumque criminaliter agi, et eum qui agit in crimen
subscribere, non quasi publicum sit iudicium, sed quia visum est temerit-
atem agentium etiam extraordinaria animadversione coercendam ' Ulpian
in Dig. 47. 2. 92. For the nature of the punishment, which might be
death, penal servitude, flogging, or relegatio, according to the character
of the offence, see Hunter's Roman Law p. 911.

Tit. II. Robbery was not originally distinguished from theft; the
robber was liable to the penalties of furtum manifestum or nee manifes*

Tit. 2.] VI BONORUM RAPTORUM. ^2^

sive comprehendatur raptor in ipso delicto sive non. ridi-
culum est enim levioris esse condicionis eum qui vi rapit,

turn according to the circumstances under which he was detected, Dig.
47. 8. I ; ib. 2. 26. Cicero tells us (pro Tullio 8) that it was constituted
an independent delict by Lucullus when praetor in B. c. 77 y by reason of
the frequency of crimes of violence which ensued upon the social war.
The terms of the edict are preserved: 'si cui dolo malo hominibus
coactis danmi quid factum esse dicetur, sive cuius bona rapta . esse
dicentur, . . . iudicium dabo ' Dig. 47. 8. 2. pr. It thus introduced a new
penalty for two classes of cases, those of damage to property, and those
of robbery, * hominibus coactis,' words which apply to both offences, Dig.
ib. 2. 3 and 12. The original edict seems to have run ' hominibus armatis
coactisque ; ' but the carrying of arms for the purposes of crime became
so rare under the empire that the word was omitted and the definition
of the offence thereby extended. Before long too the words ' hominibus
coactis' were taken pro non scriptis: 'hoc enim quod ait, hominibus
coactis, sic accipere debemus, etiam hominibus coactis : ut sive solus vim
fecerit, sive etiam hominibus coactis, vel armatis, vel inermibus, hoc
edicto teneatur ' (Dig. 47. 8. 2. 7 with Heise's emendation). Lastly, the
bearing of the edict of Lucullus on wilful damage to property was lost
from sight, its practical importance being in the Corpus iuris confined to
rapina, which indeed seems to have been the case as early as the time of
Ulpian : ' hae actio vulgo tibi (vi ?) bonorum raptorum dicitur ' Dig. 47. 8.
2. 17.

The fact that every case of robbery was also a furtum makes it improb-
able that the actio bonorum vi raptorum was ever employed except
within a year from the commission of the offence, and that only when the
offence itself did not come within the definition of furtum manifestum.
The penalty for which it lay being less than that recoverable by actio
furti manifesti (viz. three times the value of the property), it is clear that
if the raptor was detected 'antequam eo pervenerit quo perferre ac
deponere rem destinasset' (Tit. i. 3 supr.), the plaintiff would prefer the
latter remedy, which had the further advantage of not being barred by
the lapse of a year from the commission of the offence (see references
inf.) ; and after the lapse of a year the plaintiff could still bring an actio
furti, which, even if the offence were nee manifestum, would enable him
to recover a substantial penalty, while by the actio bonorum vi raptorum
he could get no penalty at all.

. In Gains' time some had thought that the quadruplum recoverable by
the actio bonorum vi raptorum was all penalty, and that a vindicatio or
condictio lay in addition, as in the case of furtum, Gaius iv. 8. The un-
certainty was due to the omission of the edict to say anything precise
about the matter; and as the actiones furti and damni iniuria (which
were relied on as precedents) were one of them purely penal and the
other mixed (Gaius iv. 9, Tit. 6. 19 inf.) it was natural that opinions
should differ.

526 INSTITUTIONUM UBRI QUATTUOR. [Lib. IV.

1 quam qui clam amovet. Quia tamen ita competit haec actio,
si dolo malo quisque rapuerit : qui aliquo errore inductus
suam rem esse et imprudens iuris eo animo rapuit, quasi
domino liceat rem suam etiam per vim auferre possessoribus,
absolvi debet, cui scilicet conveniens est nee furti teneri
eum, qui eodem hoc animo rapuit. sed ne, dum talia ex-
cogitentur, inveniatur via, per quam raptores impune suam
exerceant avaritiam : melius divalibus constitutionibus pro
hac parte prospectum est, ut nemini liceat vi rapere rem
mobilem vel se moventem, licet suam eandem rem existimet :
sed si quis contra statuta fecerit, rei quidem suae dominio
cadere, sin autem aliena sit, post restitutionem etiam aesti-
mationem eiusdem rei praestare. quod non solum in mobilibus
rebus, quae rapi possunt, constitutiones optinere censuerunt,
sed etiam in invasionibus, quae circa res soli fiunt, ut ex hac

2 causa omni rapina homines abstineant. In hac actione non
utique exspectatur rem in bonis actoris esse: nam sive in
bonis sit sive non sit, si tamen ex bonis sit, locum haec

The annus within which the actio bonorum, vi raptorum was genuinely
penal was utilis, Dig. 47. 8. 2. 13 ; for the explanation of the term see on
Bk. iii. 9. 9 supr. All praetorian penal actions had the same short pre-
scription except that furti manifesti, which was perpetua because the
penalty thereby recoverable was substituted for capital punishment,
Gaius iv. no, in, Tit. 12. pr. inf. The heir of the robber was not liable
to actio bonorum vi raptorum in any case, though he was suable by con-
dictio to the extent to which the inheritance had been enriched by the
proceeds of the wrong : ' adversus heredes autem vel caeteros successores
non dabitur, quia poenalis actio in eos non datur. An tamen in id, quod
locupletiores facti sunt, dari debeat, videamus. et ego puto ideo praetorem
non esse pollicitum in heredes in id quod ad eos pervenit, quia putavit
sufficere condictionem ' Ulpian in Dig. 47. 8. 2. 27.

§ 1. The constitutions referred to are those of Valentinian, Theodosius,
and Arcadius (a. d. 389), in Cod. 8. 4. 7 * si quis in tantam furoris perve-
nerit audaciam, ut possessionem rerum apud fiscum vel apud homines
quoslibet constitutarum ante adventum iudicialis arbitrii violenter inva-
serit, dominus quidem constitutus possessionem quam abstulit restituat
possessori et dominium eiusdem rei amittat. Si vero alienarum rerum
possessionem invasit, non solum eam possidentibus reddat, verum etiam
aestimationem earundem rerum restituere compellatur.' For the relation
of this enactment to the interdict unde vi see on Tit 15. 6 inf. and Mr.
Poste's note on Gaius iii. 209.

§ 2. The expression ex bonis is here opposed to dominium, to denote

Tit. 3] DE LEGE AQUILIA. 527

actio habebit. quare sive commodata sive locata sive etiam
pig^erata sive deposita sit apud Titium sic, ut intersit eius
earn non aufcrri^ veluti si in re deposita culpam quoque
promisit, sive bona fide possideat, sive usum fnictum in ea
quis habeat vel quod aliud ius, ut intersit eius non rapi :
dicendum est competere ei banc actionem, ut non dominium
accipiat, sed illud solum, quod ex bonis eius qui rapinam
passus est, id est quod ex substantia eius ablatum esse pro-
ponatur. et generaliter dicendum est, ex quibus causis furti
actio competit in re clam facta, ex isdem causis omnes habere
banc actionem.

III.

DE LEGE AQUILIA.

Damni iniuriae actio constituitur per legem Aquiliam.
cuius primo capite cautum est, ut si quis hominem alienum
alienamve quadrupedem quae pecudum numero sit iniuria
Occident, quanti ea res in eo anno plurimi fuit, tantum domino

the bonitarian form of which the phrase ' in bonis habere' was employed ;
this seems clear from the language towards the end of the paragraph, ' ut
non dominium accipiat, sed illud solum, quod ex bonis eius . . . .' In
other passages in bonis and ex bonis are not distinguished, e.g. Dig. 50.
16. 49; 41. I. 42 ; 35. 2. 32. I, where in bonis has such a wide sense that
nothing seems to be left for ex bonis to include. The distinction between
the persons who could sue on theft, and those who could sue on robbery,
seems to consist in the depositary being in some cases allowed the latter
where he could not bring the former action, or perhaps in some persons
having the actio bonorum vi raptorum who, though having an interest,
have no real right, possession, or detention ; ' utilius dicendum est, etsi
cesset actio furti ob rem dep>ositam, esse tamen vi bonorum raptorum
actionem, quia non minima differentia est inter eum, qui clam facit, et
eum, qui rapit, cum ille celet suum delictum, hie publicet et crimen etiam
publicum admittat Si quis igitur interesse sua vel modice docebit,
debet habere vi bonorum raptorum actionem ' Dig. 47. 8. 2. 24.

The criminal alternative for the civil action on robbery was an indict-
ment under the lex lulia de vi, for the penalties inflicted by which see Tit.
18. 8 inf.

Tit. III. ' Lex Aquilia omnibus legibus, quae ante se de damno iniuria
locutae sunt, derogavit (repealed), sive duodecim tabulis sive alia quae
fuit, quas leges nunc referre non est necesse. Quae lex Aquilia plebisci-
tum est, cum earn Aquilius, tribunus plebis, a plebe rogaverit ' Dig. 9. 2.
I pr. and i ; its date was B. c 287 : see Grueber, lex Aquiliai pp. 183-185.

5^8 JSSTITUTIOSUM UBRI QUATTUOR. [lA. Pr.

1 dare damnettir. Quod autem mm praedse de qoadinpede,
sed de ea tantum quae pecudnm numero est cavetor, eo
pertinet, ut neqtie de feris bestiis neqoe de canibus cautnm
cage intellegamus, sed de his tantum, quae propiie pasd
dicuntur, quales sunt cqui muli asini boves oves caprae.
de suibus quoque idem placuit: nam et sues pecorum ap-
pellatione continentur, quia et hi gregatim pascuntur: sic
denique et Homenis in Odyssea ait, sicut Aelius Mar*
cianus in suis institutionibus refert:

wop K6paKOt werftff^ iwi T€ Kpipji ^ApfOoua^

2 Iniuria autem occidere intell^itur, qui nullo iure ocddit.
itaque qui latronem ocddit, non tenetur, utique si aliter

The terms of cap. i. are preserved by Gaius in the Digest, loc dt. 2. pr.
* qui servum servamve alienum aiienamve, quadnipedem vd pecadem in-
lurja Occident, qtianti id in eo anno plurinu fiiit, tantum aes dare domino
damnas esto.' For the mode of reckoning the year c£ Dig. ib. 2i. i ^ annus
retrorsus computatur, ex quo quis ocdsus est : quod si mortifere fiierit
vulneratus, et postea post longnm intervaJlum mortuus sit, inde annus
numerabitur secundum lulianum, ex quo vuhieratus est, licet Celsus contra
ftcribit'

It is only to the owner ('ero, hoc est, domino' Dig. ib. ii. 6) that the
action was granted by the letter of both the first and third chapters of the
statute, but in its spirit an actio utilis or in factum (§ i6 in£) was per-
mitted to the bona fide possessor (Dig. ib. ii. 8, ib. 17), the usufructuary
and usuary (ib. 11. 10), and the pledgee (ib. 17), though to the latter only
if he had been actually prejudiced by the damnum, as, e. g. if the debtor
was insolvent, or if he had lost his personal remedy, and only upon the
condition that whatever he recovered should be deducted from the debt
secured by the pledge. The only case in which a person having merely
rights in personam in respect to the property injured could bring the actio
utilis or in factum was that of the colonus or tenant farmer, Dig. 9. 2. 27.
14. All these persons could bring their action against even the dominus
if it was he who had done the damnum (Dig. ib. 12 ; ib. 17) ; so that the
word alienum in the statute must not be pressed.

§ 1. Praecise, id est, breviter, sine additamento (Schrader) : cf. ' non
praecise, sed sub condicione ' Dig. 36. 3. i. 20. The quotation is from
Od. xiii. 407-8.

§ 2. That the damnum is Mniuria datum' implies two things : (i) that
the person charged has no right to do the act ; ' nemo damnum facit, nisi
qui id fecit quod facere ius non habet' Dig. 50. 17. 15 1« Instances in
which this condition is not satisfied are Dig. 9. 2. 29. 7: 18. 6. 13 and
14 (where the damage results from lawful exerdse of magisterial authority) :

Tit. 3.] DE LEGE AQUILIA. 5^9

periculum effugere non potest. Ac ne is quidem hac lege 3
tenetur, qui casu occidit, si modo culpa eius nulla invenitur :
nam alioquin non minus ex dolo quam ex culpa quisque hac
lege tenetur. Itaque si quis, dum iaculis ludit vel exercitatur, 4
transeuntem servum tuum traiecerit, distingultur. nam si id
a milite quidem in campo eoque, ubi solitum est exercitari,
admissum est, nulla culpa eius intellegitur : si alius tale quid
admisit, culpae reus est. idem iuris est de milite, si is in
alio loco, quam qui exercitandis militibus destinatus est, id
admisit. Item si putator ex arbore deiecto ramo servum 5
tuum transeuntem occiderit, si prope viam publicam aut
vicinalem id factum est neque praeclamavit, ut casus evitari

ib. 29. 3 (where it is done in averting damnum from oneself) ; ib. 5. 3
(right to inflict moderate chastisement) ; ib. 4 ; ib. 5. pr. ; ib. 45. 4 (self-
defence : cf. the text of this section) : Grueber, lex Aquilia, pp. 214-222.
(3) The act by which the damage is occasioned must be one for which the
person charged is responsible ; it must be due at least to culpa on his part :
for this see the next section.

§ 8. The fact that dolus was not essential to constitute damnum iniuria
datum distinguishes it clearly from the three other delicts : ' when culpa
is once established, the amount of the defendant's liability does not depend
on its degree ; ' ' in lege Aquilia et levissima culpa venit ' Dig. 9. 2. 44. pr.,
' culpam autem esse, quod, cum a diligente provided potuerit, non esse
provisum' ib. 31 : cf . § 8 inf. The idea is sufficiently illustrated in the
next five sections.

It is a much argued question whether very slight negligence in a party
to a legal relation in which he was answerable for culpa lata only would
entitle the other party to sue him under the lex Aquilia ; as where a de-
positary by slight negligence causes destruction of or damage to the res
deposita. The true answer depends on the correct appreciation of a rather
fine distinction. Some acts are acquitted of culpa, if there be a legal re-
lation between the parties, which would otherwise be imputable ; e. g. a
delicate piece of glass work is given to an artificer to repair, and breaks to
pieces in his hands through no want of skill or caution on his part. But
if the act is one which is not excused by virtue of the legal relation, the
actio legis Aquiliae will lie, because the delinquent is exempted from
liability for culpa levis only in respect of the specific duties which that
relation imposes on him, Dig. 40. 12. 13. pr. ; 47. 4. i. 2 ; 9. 2. 5. 3 : see
Grueber, pp. 230-233.

§ 4. Where a man is killed by a javelin thrown by a soldier ' in campo
eoque ubi solitum est exercitari ' the culpa is all his own, and * quod quis
ex culpa sua damnum sen tit non intellegitur damnum sentire' Dig. 50. 17.
303. Contributory negligence of the person injured usually excluded the
action, Dig. 9.2. 11. pr. ; ib. 28. i ; ib. 52. I : but this was not so if the

M m

530 INSTITUTIONUM^ UBRI QUATTUOR. [Lib. IV.

possit, culpae reus est: si praeclamavit neque ille curavit
cavere, extra culpam est putator. aeque extra culpam esse
intellegitur, si seorsum a via forte vel in medio fundo caedebat,
licet non praeclamavit, quia eo loco nulli extraneo ius fuerat

6 versandi. Praeterea si medicus, qui servum tuum secuit,
dereliquerit curationem atque ob id mortuus fuerit servus,

7 culpae reus est. Imperitia quoque culpae adnumeratur, veluti
si medicus ideo servum tuum occiderit, quod eum male secuerit

8 aut perperam ei medicamentum dederit. Impetu quoque mu-
larum, quas mulio propter imperitiam retinere non potuerit,
si servus tuus oppressus fuerit, culpae reus est mulio. sed et
si propter infirmitatem retinere eas non potuerit, cum alius
firmior retinere potuisset, aeque culpae tenetur. eadem pla-
cuerunt de eo quoque, qui, cum equo veheretur, impetum eius
aut propter infirmitatem aut propter imperitiam suam retinere

9 non potuerit. His autem verbis legis 'quanti id in eo anno
plurimi fuerit' ilia sententia exprimitur, ut si quis hominem
tuum, qui hodie claudus aut luscus aut mancus erit, Occident,
qui in eo anno integer aut pretiosus fuerit, non tanti teneatur,
quanti is hodie erit, sed quanti in eo anno plurimi fuerit. qua
ratione creditum est poenalem esse huius legis actionem, quia

damage was wilful, even though there had been culpa lata on the other
side. Dig. ib. 9. 4.

§ 6. As a genera] rule the penalty of the lex Aquilia was incurred only
by positive acts of commission : ' sunt casus, quibus cessat Aquiliae
actio .... nam qui agrum non proscindit, qui vites non subserit, item
aquarum ductus corrumpi patitur, lege Aquilia non tenetur' Dig. 7. 1. 13.
2. But where a person had once commenced a course of action, ces*
sation of which would be disastrous (e. g. the case in the text), an omis-
sion entailed liability, Dig. 9. 2.8. pr. ; ib. 27. 9; ib. 31: Grueber,
pp. 208-214.

§ 7. Imperitia in surgeons is treated as culpa also in Dig. 9. 2. 7. 8 ; in
artificers, ib. 27. 29 ; and assessors, Dig. 2. 2. 2 : cf. the next section.

§ 8. 'Nee videtur iniquum, si infirmitas culpae adnumeretur, cum
affectare quis non debeat, in quo vel intellexit vel intellegere debet,
infirmitatem suam alii periculosam futuram' Dig. 9. 2. 8. I.

§ 9. The actio legis Aquiliae was penal not only for the reason noticed
here, but also because the delinquent, unless the plaintiff failed to pro\'e
his case, was assumed to be condemned from the outset (damnas esto
dare), so that if he were cast in the suit after denying his liability, he was
condemned in duplum, Tit 6. 19. 23. 26. inf., Gaius iii. 216 ; iv. 9. 171.

Tit. 3.] DE LEGE AQUILIA. 531

non solum tanti quisque obligatur, quantum damni dederit,
sed aliquando longe pluris : ideoque constat in heredem earn
actionem non transire, quae transitura fuissct, si ultra damnum
numquam lis aestimaretur. Illud non ex verbis legis, sed ex 10
interpretatione placuit non solum perempti corporis aesti-
mationem habendam esse secundum ea quae diximus, sed
eo amplius quidquid praeterea perempto eo corpore damni
vobis adlatum fuerit, veluti si servum tuum heredem ab aliquo
institutum ante quis occiderit, quam is iussu tuo adiret : nam
hereditatis quoque ami&sae rationem esse habendam constat.

The action was maintainable against the delinquent's heir so far as the
inheritance had been enriched by the delict : ' in heredem vel ceteros
(successores) haec actio non dabitur, cum sit poenalis (see Tit. 12. i inf.)»
nisi forte ex damno locupletior heres factus sit' Dig. 9. 2. 23. 8. Justi-
nian's qualification in the text (quae transitura .... aestimaretur) is
irrecondleable with the statements of the older jurists, and tends only to
confusion.

' Aliquando longe pluris/ i. e. not always : for the slave (e. g.) may have
been at his full value when killed, and the defendant may in the abstract
admit his liability, the object of the suit being solely to assess the damages:
cf. Tit 6. 19 inf. ' . . . . sed interdum,' etc.

§ 10. When one person has to pay another the value of a thing or act,
two standards may be taken ; the market value, verum rei pretium ; or
its value to the particular person to whom the payment is to be made, in
other words, his ^ interesse.' When the latter standard is adopted, allow-
ance is made not only for the market value, but also for what are called
damnum indirectum or emergens (illustrated by the team of mules and
company of actors in the text) and lucrum cessans (e. g. the slave who has
been instituted heir, and is killed before he can benefit his master by
accepting); the damages are assessed upon the principle of putting
the plaintiff so far as possible in the position in which he would have
been had the act been done which ought to have been done, or had the
wrongful act never been committed. The expression * quanti ea est res '
or * fuit ' (in actiones arbitrariae ' erit ') is used to denote both of these
standards : ' haec verba, quanti eam rem paret esse, non ad quod interest,
sed ad rei aestimationem referuntur' Dig. 50. 16. 193, ' quanti ea res, est
cuius damni infecti nomine cautum non erit, iudicium datur, quod non ad
quantitatem refertur, sed ad id, quod interest, et ad utilitatem venit, non
ad poenam ' Dig. 39. 2. 4. 7.

The plaintifTs interesse was the standard in actions both on delict
(except the actio bonorum vi raptorum, Dig. 47. 8. 2. 13) and on breaches
of contract involving dolus or imputable culpa. Justinian points out that
by the text of the lex Aquilia only the verum rei pretium could be claimed ;
the change of standard was due to the ^ interpretatio ' of the lawyers : cf.

M m 2

53^ INSTITUTIONUM UBRI QUATTVOR. [Lib. IV.

item si ex pari mularum unam vel ex quadriga equorum
unum Occident, vel ex comoedis unus servus fuerit occisus:
non solum occisi fit aestimatio, sed eo amplius id quoque
11 computatur, quanto depretiati sunt qui supersunt. Liberum
est autem ei, cuius servus fuerit occisus, et privato iudicio
l^is Aquiliae damnum persequi et capitalis criminis eum
reum facere.
12, 13 Caput secundum legis Aquiliae in usu non est. Capite
tertio de omni cetero damno cavetur. Itaque si quis servum
vel eam quadrupedem quae pecudum numero est vulneraverit,
sive eam quadrupedem quae pecudum numero non est, veluti
canem aut feram bestiam, vulneraverit aut Occident, hoc

Ulpian in Dig. 9. 2. 21. 2 'sed utrum corpus eius solum aestimamus,
quantum fuerit, cum occideretur, an potius quanti interfuit nostra non
esse occisum ? et hoc iure utimur, ut eius quod interest fiat aestimatio.'
But the plaintiff could not demand that account should betaken of lucrum
which, though hoped for, was quite uncertain, Dig. ib. 29. 3, or of what
the Germans call * Affectionsinteresse,* ib. 33. pr. There seems to be a
general tendency in Roman law to favour, in the earlier periods, the
assessment of damages according to the verum rei pretium, and in the
later to substitute the alternative method : for illustrations of the effect of
the change in connection with the lex Aquilia, see Grueber, pp. 266-271.
By Cod. 7. 47 Justinian enacted that in actions on contract the damages
recoverable as ' interesse ' by the plaintiff should never be more than
double the verum rei pretium.

§ 11. The criminal prosecution would be under the lex Cornelia de
sicariis, B.C. 80, for which see Tit. 18. 5 inf., and was in addition to the
civil remedy : ' ex morte ancillae .... tam legis Aquiliae actionem quam
criminalem accusationem competere posse non ambigitur' Cod. 3. 35.
3, ovdf yap r\ privata KiinjBeiO'a dyayri rrjp publicam afittnnMriv Theoph.
From Gaius iii. 213 it would seem that in his day it was otherwise :
* liberum arbitrium habet, vel capitali crimine .... vel hac lege danmum
persequi : ' but Ulpian speaks of the civil action as not barring the
prosecution : * in factum agendum, criminali poena servata ' Dig. 19U
5. 14. I.

§ 12. ^ Capite secundo in adstipulatorem qui pecuniam in fraudem sti-
pulatoris acceptam fecerit, quanti ea res esset, tanti actio constituitur '
Gaius iii. 215. For the adstipulator see Gaius iii. I lo-i 14. This chapter
had gone into desuetude at least as early as Ulpian, Dig. 9. 2. 27. 4.
Schrader suggests that the incorporation of a rule of contract law in an
enactment relating to damage to property was due to the desire to subject
the fraudulent adstipulator to the procedure by manus iniectio pura : see
Gaius iv. 22, and the General Index.

§ 18. Cap. iii. ran 'ceterarum rerum, praeter hominem et pecudes

Tit. 3.] T>E LEGE AQUJLIA. 533

capite actio constituitur. in ceteris quoque omnibus animalibus,
item in omnibus rebus quae anima carent damnum iniuria
datum hac parte vindicatur. si quid enim ustum aut ruptum
aut fractum fuerit, actio ex hoc capite constituitur : quamquam
potent sola rupti appellatio in omnes istas causas sufficere t
ruptum enim intellegitur, quoquo modo corruptum est. unde
non solum usta aut fracta, sed etiam scissa et collisa et efTusa
et quoquo modo perempta atque deteriora facta hoc verbo
continentur : denique responsum est, si quis in alienum vinum
aut oleum id immiserit, quo naturalis bonitas vini vel olei cor-
rumperetur, ex hac parte legis eum teneri. Illud palam est, 14
sicut ex primo capite ita demum quisque tenetur, si dolo aut
culpa eius homo aut quadrupes occisus occisave fuerit, ita ex
hoc capite ex dolo aut culpa de cetero damno quemque teneri.
hoc tamen capite non quanti in eo anno, sed quanti in diebus
triginta proximis res fuerit, obligatur is qui damnum dederit.
Ac ne plurimi quidem verbum adicitur. sed Sabino recte 15
placuit perinde habendam aestimationem, ac si etiam hac
parte plurimi verbum adiectum fuisset : nam plebem Romanam,
quae Aquilio tribuno rogante banc legem tulit, contentam
fuisse, quod prima parte eo verbo usa est.

Ceterum placuit ita demum ex hac lege actionem esse, si 16
quis praecipue corpore suo damnum dederit. ideoque in eum,
qui alio modo damnum dederit, utiles actiones dari solent:
veluti si quis hominem alienum aut pecus ita incluserit, ut
fame necaretur, aut iumentum tam vehementer egerit, ut
rumperetur, aut pecus in tantum exagitaverit, ut praeci-
pitaretur, aut si quis alieno servo persuaserit, ut in arborem

occisos, si quis alteri damnum faxit, quod usserit, fregerit, ruperit iniuria,
quanti ea res erit in diebus triginta proximis, tantum aes domino dare
damnas esto* Dig. 9. 2. 27. 5. The interpretation of ruperit by corruperit
(* rupisse verbum fere omnes veteres sic intellexerunt, corrupisse ' Dig. ib.
27. 13) brought all damage caused by immediate physical contact with a
res aliena (damnum corpore corpori datum. Dig. ib. 27. 13 sq., § 16 inf.)
within the terms of the statute.

§ 16. For actiones in factum in general see references to Excursus X
inf. in the General Index, and for the specific one mentioned in this
section cf. Dig. 19. 5. 11 'quia actionum non plenus numerus esset, ideo
plerumque actiones in factum desiderantur. Sed et eas actiones, quae
legibus proditae sunt, si lex iusta ac necessaria sit, supplet praetor in eo,

534 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

ascenderet vel in puteum descenderet, et is asccndendo vel
descendendo aut mortuus fuerit aut aliqua parte corporis
laesus erit, utilis in eum actio datur. sed si quis alienum
servum de ponte aut ripa in flumen deiecerit et is suffocatus
fuerit, eo quod proiecerit corpore suo damnum dedisse non
difficiliter intellegi poterit ideoque ipsa lege Aquilia tenetur.
sed si non corpore damnum fuerit datum neque corpus laesum
fuerit, sed alio modo damnum alicui contigit, cum non sufficit
neque directa neque utilis Aquilia, placuit eum qui obnoxius
fuerit in factum actione teneri : veluti si quis misericordia
ductus alienum servum compeditum solverit, ut fugeret.

quod legi deest ; quod facit in lege Aquilia reddendo actiones in factum
accommodatas legi Aquiliae, idque utilitas eius legis exigit.' It is difficult
to determine at all precisely the relation to one another of this actio in
factum and the actio utilis legis Aquiliae also mentioned in the text
Justinian's own statement here suggests the hypothesis that the actio
utihs was the proper remedy where the damage was done corpori, but not
corpore, while where it was not even done corpori the injured person had
only an actio in factum ; but this distinction is not even hinted at by
Gaius iii. 219, and other passages in the Digest, some of which are cited
below, are strongly against it. The only conclusion which seems to be
warranted is that in all cases which had been brought within the scope of
the statute by construction an actio in factum lay, but that the actio
utilis had a less extensive application, or, as one of the Schohasts puts it,
* nota etiam ex hoc capite, aliud esse in factum, et aliud utilem Aquiliam ;
utilis quidem Aquilia est in factum, at in factum non est utiHs Aquilia ;
haec enim latius patet et aliis casibus competit.' There seems to be no
other difference between the two remedies, and, in particular, none in re-
spect of their material result, though some writers maintain that by the
actio in factum only simple damages were recoverable, but that the actio
utilis was penal in both senses of the lex Aquilia, § 9 supr. and note. For
this there is no textual authority, and the expression actio in factum ' ac-
commodatalegi Aquiliae' (Dig. 19. 5. 1 1, cited supr.) or ^ ad exemplum legis
Aquiliae ' (Dig. 9. 2. 53) is distinctly against it.

The cases to which the penalties of the lex Aquilia were extended by
construction, besides that already noticed in the note on p. 528, are as
follow :

(i) Indirect killing (corpori, non corpore) : * Celsus autem multum inter-
esse dicit, Occident, an mortis causam praestiterit, ut qui mortis causam
praestiterit, non Aquilia sed in factum actione teneatur. Unde affert euro,
qui venenum pro medicamento dederit, et ait causam mortis praestitisse,
quemadmodum eum, qui furenti gladium porrexit, nam nee bunc lege
Aquilia teneri, sed in factum * Dig. 9. 2. 7. 6. For this the text before us
prescribes actio utilis : cf. Dig. ib. 9. 3 ; ib. 11. i.

Tit. 4.] DE INIURIIS. 535

IV.

DE INIURIIS.

Generaliter iniuria dicitur omne quod non iure fit : specialiter
alias contumelia, quae a contemnendo dicta est, quatn Graeci
vfipw appellant, alias culpa, quam Graeci iLbUrfiia dicunt, sicut
in lege Aquilia damnum iniuria accipitur, alias iniquitas et

(2) Indirect damage other than killing (corpori, non corpore) : for ex-
amples see the text, and Dig. 9. 2. 11. 5 ; ib. 29. 5 ; ib. 30. 3 ; 9. i. i. 7 ;
19. 5. 14. 3. For the limitation of these classes of wrong by the require-
ment of a positive act see on § 6 snpr.

(3) Cases in which damnum is not done corpori, so that properly speak-
ing there is no rei corruptio at all ; viz. (a) the wrongful deprivation of
property without animus lucri faciendi, e. g. the case of actio in factum
cited in this section : the knocking of money out of a person's hand ; the
throwing of a res aliena into the sea, Dig. 19. 5. 14. 2, cited on Tit. i. i
supr. : cf. Dig. 9. 2. 27. 21 ; 4. 3. 7. 7 ; (d) the depreciation of property
without actually damaging it : ' item si quis frumento arenam vel aliud
quid immiscuerit, ut difficilis separatio sit, quasi de corrupto agi poterit '
Dig. 9. 2. 27. 20 ; (c) the wrongful consumption of res quae usu consu-
muntur belonging to another: 'si quis alienum vinum vel frumentum
consumpserit, non videtur damnum iniuria dare, ideoque utilis danda est
actio ' Dig. ib. 30. 2. It is apparently to such cases of actual damage,
depreciation, or consumption of property, that the expression in the text
(sed alio modo damnum alicui contigerit) must be restricted, for it is hardly
conceivable that a penal action lay wherever mere loss was occasioned
by another's culpa.

(4) Personal injury to a free man : ' liber homo suo nomine utilem
Aquiliae habet actionem, directam enim non habet, quoniam dominus
membrorum suorum nemo videtur' Dig. 9. 2. 13. pr. For injuries to a
filiusfamilias the pater could sue, Dig. ib. 7. pr.

Tit. rV. Having given the general sense of the term iniuria as ' id
quod iure non fit' (cf. Tit. 3. 2 supr.), Justinian points out three more
specific significations which it bears (specialiter alias .... alias ....
alias), viz. (i) Zfipig or contumelia, the sense in which it is used in this
Title; (2) culpa or dbiKtjfiay as where one speaks of damnum iniuria
datum under the lex Aquilia ; and (3) adtxia or injustice, sensu stricto,
in one whose function it is Mus pronuntiare,' such as a judge or a
magistrate.

The delict of iniuria here treated may be defined as a wilful violation
of what writers on Jurisprudence term the * primordial ' rights of a free
man— the rights to personal freedom, safety, and reputation. It thus
stands in marked contrast with the three delicts already discussed, all
of which are offences against property, though the same act may be

536 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV,

iniustitia, quam Graeci h3SiKlav vocant. cum enim praetor vel
iudex non iure contra quern pronuntiat, iniuriam accepisse
1 dicitur. Iniuria autem committitur non solum, cum quis
pugno puta aut fustibus caesus vel etiam verberatus erit, sed
etiam si cui convicium factum fuerit, sive cuius bona quasi
debitoris possessa fuerint ab eo, qui intellegebat nihil eum
sibi debere, vel si quis ad infamiam alicuius libellum aut
carmen scripserit composuerit ediderit dolove malo fecerit,
quo quid eorum fieret, sive quis matrem familias aut prae-
textatum praetextatamve adsectatus fuerit, sive cuius pudicitia

construable as an offence against both the property and the person :
* et ideo interdum utraque actio concurrit, et legis Aquiliae, et iniuriarum :
sed duae enint aestimationes, alia damni, alia contumeliae ' Dig. 9. 2. 5. i :
cf. Dig. 47. 10. 15. 46.

Intention is essential to iniuria: 'pati quis iniuriam etiamsi non sentiat
potest, facere nemo, nisi qui scit se iniuriam facere, etiamsi nesciat cui
faciat ' Dig. 47. 10. 3. 2 ; hence those were held incapable of commitdng
iniuria who could not have such intention, e. g. persons of weak or un^
sound mind, and children not yet doli capaces. r

§ 1. The second condition of iniuria is an overt act> which, as is said
in the text, might be directed against the person or the reputation :
*• iniuriam autem fieri Labeo ait aut re, aut verbis : re, quotiens manus
inferuntur, verbis autem, quotiens non manus inferuntur, convicium fit :
omnemque iniuriam aut in corpus inferri, aut ad dignitatem aut ad
infamiam pertinere ' Dig. 47. 10. i. i and 2. Among acts which amount
to iniuria, besides those mentioned in the text, are calling upon sureties
to discharge a debt which the debtor is quite able and willing to pay
himself, Dig. ib. 19 and 20; offering for sale another's property under
the pretence that one has a mortgage over it, ib. 15. 32 and 33 ; the pub-
lication of a will whose provisions one should have kept secret. Dig. 9. 2.
41. pr. ; unwarranted entry upon another man's dwelling against his will.
Dig. 47. 10. 5. pr. ; hindering another in the use of a * res publico usui
destinata' ib. 13. 7, and unjustifiable questioning of another's status,
ib. II. 9.

The technical name for libel is carmen or libellus famosus ; for slander
there seems to have been no other term but convicium, which includes
acts which we should call by other names. If such statements were true,
and not made in an offensive manner, they did not amount to iniuria :
^ eum qui nocentem infamavit, non esse bonum aequum ob eam rem con-
demnari : peccata enim nocentium nota esse et oporlere et expedire '
Dig. 47. 10. 18. pr. For the liability of instigators and accomplices see
% 1 1 inf. and Paul. sent. rec. 5. 4. 20 ' non tantum is, qui nialedictum aut
convicium ingesserit iniuriam convictus famosus efficitur, sed et is cuius
ope consiliove factum esse dicitur.'

Tit. 4.] DE JNIURIJS. 537

attemptata esse dicetur : et denique aliis pluribus modis ad-
mitti iniuriam manifestum est. Patitur autem quis iniuriam 2
non solum per semet ipsum, sed etiam per liberos suos quos
in potestate habet: item per uxorem suam, id enim magis
praevaluit. itaque si filiae alicuius, quae Titio nupta est,
iniuriam feceris, non solum filiae nomine tecum iniuriarum
agi potest, sed etiam patris quoque et mariti nomine, contra
autem, si viro iniuria facta sit, uxor iniuriarum agere non
potest : defendi enim uxores a viris, non viros ab uxoribus
aequum est. sed et socer nurus nomine, cuius vir in po-
testate est, iniuriarum agere potest. Servis autem ipsis 3
quidem nulla iniuria fieri intellegitur, sed domino per eos fieri
videtur : non tamen isdem modis, quibus etiam per liberos et
uxores, sed ita cum quid atrocius commissum fuerit et quod
aperte ad contumeliam domini respicit. veluti si quis alienum
servum verberaverit, et in hunc casum actio proponitur : at si
quis servo convicium fecerit vel pugno eum percusserit, nulla
in eum actio domino competit. Si communi servo iniuria 4

§ 2. In Gaius iii. 221 it is said that the husband can suffer iniuria
through the wife in manu ; but this has been emended (perhaps rightly,
considering the words which follow) by reference to Justinian's text, so as
to read 'immo etiam per uxores, quamvis in manu nostra non sint, id enim
magis praevaluit.' The actio iniuriarum was one of the few actions which
a person in power was able to bring in his or her own name, Dig. 44. 7. 9,
p. 128 supr. As a general rule, iniuria to A would not affect B unless it
was so intended ; but where the relation between the two was intimate,
and such as to have been known to the delinquent, the intention was
presumed : ' maritus in uxoris pudore, pater in existimatione filiarum
propriam iniuriam pati intelleguntur ' Cod. 9. 35. 2.

§ 3. No iniuria could, properly speaking, be offered to a slave, because
he was cmpoo-wros ; but the praetor seems to have demurred to the civil
law fiction that a slave had no feelings : ^ si . . . . non ad suggillationem
domini fecit, ipsi servo facta iniuria inulta a praetore relinqui non debuit :
banc enim et servum sentire palam est* Dig. 47. 10. 15. 35 • cf D>g« 31.
I. 43. 5, and note on Bk. i. 3. 2 supr.

It is doubtful whether the *et' between 'atrocius commissum' and
' quod aperte .... respicit ' should be taken as conjunctive or disjunctive.
In favour of the former view is Gaius (iii. 222), who omits the particle, and
perhaps Theophilus («cai on-cp), but the latter is supported by general
principles and Dig. 47. 10. 15. 35, according to which even slight iniuria,
if aimed at the dominus, was actionable.

§ 4. This seems hardly reconcileable with Dig. 47. 10. 16, which says

538 INSTITUTIONUM UBRI QUATTUOR. [Lib. IV.

facta sit, aequum est non pro ea parte, qua dominus quisque
est, aestimationem iniuriae fieri, sed ex dominorum persona,

5 quia ipsis fit iniuria. Quodsi usus fructus in servo Titii est,
proprietas Maevii est, magis Maevio iniuria fieri intell^tur.

6 Sed si libero, qui tibi bona fide servit, iniuria facta sit, nulla
tibi actio dabitur, sed suo nomine is experiri poterit : nisi in
contumeliam tuam pulsatus sit, tunc enim competit et tibi
iniuriarum actio, idem ergo est et in servo alieno bona fide
tibi serviente, ut totiens admittatur iniuriarum actio, quotiens
in tuam contumeliam iniuria ei facta sit

7 Poena autem iniuriarum ex lege duodecim tabularum
propter membrum quidem ruptum talio erat : propter os vero
fractum numniariae poenae erant constitutae quasi in magna
veterum paupertate. sed postea praetores permittebant ipsis
qui iniuriam passi sunt eam aestimare, ut index vel tanti
condemnet, quanti iniuriam passus aestimaverit, vel minoris
prout ei visum fuerit. sed poena quidem iniuriae, quae ex
lege duodecim tabularum introducta est, in desuetudinem
abiit : quam autem praetores introduxerunt, quae etiam ho-
noraria appellatur, in iudiciis frequentatur. nam secundum
gradum dignitatis vitaeque honestatem crescit aut minuitur
aestimatio iniuriae: qui g^dus condemnationis et in servili

that no joint owner was entitled to a share in the damages in excess of
the share which he held in the slave. Perhaps the meaning is that the
judge should consider not only the shares, but also the dignitas, of the
joint owners : so that if a more honourable and a less honourable man
own a slave in moieties, and the former could recover loc/. if he were
sole dominus, while the latter, under the same supposition, would get
only 50/., the judge ought to award 50/. to the one, and 25/. to the
other.

§ 6. But if the insult was intended to be offered to Titius, he could sue,
Dig. 47. 10. 15.48.

§ 7. To fractum Gaius (iii. 223) adds ' aut collisum.' The difference
between membrum ruptum and os fractum is not clear, but, if we may rely
on the interpretation of ruptum under the lex Aquilia as comiptum, the
former is intended to express permanent disablement. The penalty in
such cases (the exaction of which was permitted by the statute to the
nearest relative of the injured person, ' talione proximus cognatus ulcis-
citur' Cato in Priscian 6. 710) was a limb for a limb only if the parties
ivere unable to agree as to compensation : ^ si membrum nipit, ni cum eo
pacit, talio esto * (Twelve Tables in Festus) ; but it would seem that the
delinquent could resist talio if he pleased, and insist on a judicial fine :

Tit. 4.] DE INIURIIS. 539

persona non immerito servatur, ut aliud in servo actore, aliud
in medii actus homine, aliud in vilissimo vel compedito con-
stituatur. Sed et lex Cornelia de iniuriis loquitur et iniuriarum 8
actionem introduxit. quae competit ob earn rem, quod se
pulsatum quis verberatumve domumve suam vi introitam
esse dicat. domum autem accipimus, sive in propria domo quis
habitat sive in conducta vel gratis sive hospitio receptus sit.
Atrox iniuria aestimatur vel ex facto, veluti si quis ab aliquo 9

*si reus, qui depacisci noluerat, iudici talionem imperanti non parebat,
aestimata lite iudex hominem pecunia damnabat' Gell. 20. i. The pecu-
niary penalties fixed by the Twelve Tables were 300 asses if the broken
bone were a free man's, 150 if it were a slave's; for all other iniuriae
25 asses, Gaius loc. cit. That the grossest libel could be atoned for by
payment of this small sum argues the old Romans to have been not over
sensitive to abuse, unless it took the form of ribald songs, in which case
the penalty of death, fustuarium supplicium, was ordained by the Twelve
Tables ; cf. Cic. de republ. 4. 10, Tusc. 4. 2. After the intr6duction of the
praetorian penalties, the sum to be paid in cases of atrox iniuria (§ 9 inf.)
was in Gaius' time practically fixed by the praetor, Gaius iii. 224. That
Justinian does not mention this is perhaps to be accounted for by sup-
posing that atrox iniuria was usually proceeded against either criminally,
§ 10 inf., or under the lex Cornelia, § 8 inf. The praetorian action could
be brought only within an annus utilis of the commission of the offence,
Cod. 9. 35. 5, and condemnation entailed infamia. Tit. 16. 2 inf. The
right of action was extinguished by the death either of the person in-
jured, or of the delinquent, the wrong being purely personal, Dig. 47. 10.
13. pr. ; this of course must be understood to mean that the action was
neither actively nor passively transmissible ; the former, perhaps, because
in many cases more than one person could sue on the same iniuria.

§ 8. Whether this lex Cornelia, passed by Sulla B.c 81, was confined
to iniuriae, or was only a part of a larger statute, perhaps the lex Cornelia
de sicariis. Tit. 18. 5 inf, is doubtful; the former view is supported by
the fulness with which it seems to have treated iniuria, Dig. 47. 10. 5.
6-8 ; 48. 2. 12. 4. Its original object in any case was the criminal pro-
secution of the acts of violence to which it related (' apparet igitur omnem
iniuriam, quae manu fiat, lege Cornelia contineri ' Dig. 47. 10. 5. pr.), but
by gradual usage a civil action was developed under its provisions, which,
though its scope was less than that of the older praetorian remedy, had
the advantage of being perpetua, i.e. not barred by lapse of a year:
'etiam ex lege Cornelia iniuriarum actio civiliter moveri potest, con-
demnatione aestimatione iudicis facienda' Dig. 47. 10. 37. i. The
criminal proceedings under this statute apparently went out of use, Dig.
3. 3. 42. I.

§ 9. Gaius (iii. 223) and Paulus (sent. rec. 5. 4. 10) do not mention the
position of the wound as sufficient to make an iniuria atrox.

540 INSTJTUTIONUM LIBRI QUATTUOR. [Lib. IV.

vulneratus fuerit vel fustibus caesus: vel ex loco, veluti si
cui in theatro vel in foro vel in conspectu praetoris iniuria
acta sit : vel ex persona, veluti si magistratus iniuriam passus
fuerit, vel si senatori ab humili iniuria facta sit, aut parent!
patronoque fiat a liberis vel libertis : aliter enim senatoris et
parentis patronique, aliter extranei et humilis personae iniuria
aestimatur. nonnumquam et locus vulneris atrocem iniuriam
facit, veluti si in oculo quis percussus sit. parvi autem refert,
utrum patri familias an filio familias talis iniuria facta sit:

10 nam et haec atrox aestimabitur. In summa sciendum est
de omni iniuria eum qui passus est posse vel criminaliter
agere vel civiliter. et si quidem civiliter agatur, aestimatione
facta secundum quod dictum est poena imponitur. sin autem
criminaliter, officio iudicis extraordinaria poena reo irrogatur :
hoc videlicet observando, quod Zenoniana constitutio in-
troduxit, ut viri illustres quique supra eos sunt et per
procuratores possint actionem iniuriarum criminaliter vel
persequi vel suscipere secundum eius tenorem, qui ex ipsa

11 manifestius apparet. Non solum autem is iniuriarum tenetur
qui fecit iniuriam, hoc est qui percussit : verum ille quoque
continebitur, qui dolo fecit vel qui curavit, ut cui mala pugno

12 percuteretur. Haec actio dissimulatione aboletur : et ideo,
si quis iniuriam dereliquerit, hoc est statim passus ad animum
suum non revocaverit, postea ex paenitentia remissam iniuriam
non poterit recolere.

§ 10. Criminal prosecution of iniuria was not under any recognised
iudicium publicum, hence the necessity of an extraordinaria poena (cf.
the passage cited from Dig. 47. 2. 92 on Tit. i. 19 supr.), though some
forms of it would come under specific statutes, e.g. the leges luliae de
adulteriis, Tit. 18. 4 inf., and de vi, ib. 8: Cornelia de sicariis, ib. 5, or
Fabia de plagiariis, ib. 10. The ranks higher than illustris were those of
consulares and patricii. For Zeno's constitution cf. Paul. sent. rec. 5. 4.
12 iniuriarum non nisi praesentes accusare possunt : crimen enim, quod
vindictae aut calumniae iudicium expectat, per alios intendi non potest,'
Dig. 48. I. 13. I 'ad crimen iudicii publici persequendum frustra procu-
rator intervenit, multoque magis ad defendendum.'

§ 12. For this use of dissimuJatio cf. Dig. 23. 4. 27, Cod, 2. 22. i ; 7. 13.
3. The meaning seems to be arrived at by supposing that a person who,
after at first letting an iniuria go by, then brings his action, ' dissembled '
his anger. The reason of the rule is that the actio iniuriae ' ex bono et
aequo est' Dig. 47. 10. 11. i.

Tit. 5.1 DE OBLTGATIONIBUS QUAE QUASI, ETC. 541

DE OBLIGATIONIBUS QUAE QUASI EX DELICTO NASCUNTUR.

Si iudex litem suam fecerit, non proprie ex maleficio obli-
gatus videtur. sed quia neque ex contractu obligatus est et
utique peccasse aliquid intellegitur, licet per imprudentiam :
ideo videtur quasi ex maleficio teneri, et in quantum de ea re
aequum religioni iudicantis videbitur, poenam sustinebit. Item 1
is, ex cuius cenaculo vel proprio ipsius vel conducto vel in
quo gratis habitabat deiectum effusumve aliquid est, ita ut
alicui noceretur, quasi ex maleficio obligatus intellegitur : ideo
autem non proprie ex maleficio obligatus intellegitur, quia
plerumque ob alterius culpam tenetur aut servi aut liberi. cui
similis est is, qui ea parte, qua vulgo iter fieri solet, id positum
aut suspensum habet, quod potest, si ceciderit, alicui nocere :
quo casu poena decem aureorum constituta est- de eo vero
quod deiectum effusumve est dupli quanti damnum datum sit
constituta est actio, ob hominem vero liberum occisum quin-
quaginta aureorum poena constituitur : si vero vivet noci-
tumque ei esse dicetur, quantum ob eam rem aequum iudici

Tit. V. These quasi-delictual obligations are of two kinds ; (i) cases of
vicarious responsibility, imposed by the law upon a man *quod opera
malorum hominum utitur,* or because it may be difficult to ascertain the
real offender, and (2) wrongs which result directly from a man's own
culpa, but which do not come under the definition of any of the four
delicts proper. The actions by which they are redressed being bilaterally
penal, except perhaps in one case, they partake of the character of
genuine delicts ; a category from which (as Mr. Poste remarks) they are
excluded apparently only because they fall under no certain statute, or
are recent additions to the code.

That the incompetence of a surgeon was a delict (Tit. 3. 7 supr.), while
that of a judge was not, was due to the wording of the lex Aquilia, the
action under which did not lie except in cases of damage to tangible
objects: Mudex tunc litem suam facere intellegitur, cum dolo malo in
fraudem legis sententiam dixerit. Dolo malo autera videtur hoc facere,
si evidens arguatur eius vel gratia vel inimicitia vel etiam sordes, ut
veram aestimationem litis praestare cogatur' Dig. 5. i. 15. i. Where
his offence was only imprudentia it must have been more lightly visited,
the judge here having a discretion * . . . . quantum aequum religioni iudi-
cantis videbitur.'

§ 1. * Praetor ait de his, qui deiecerint vd effuderint, unde in eum locum

54^ INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

videtur, actio datur : iudex enim computare debet mercedes
medicis praestitas ccteraque impendia, quae in curatione facta
sunt, praeterea operarum, quibus caruit aut cariturus est ob
2 id quod inutilis factus est. Si filius familias seorsum a patre
habitaverit et quid ex cenaculo eius deiectum effusumve sit,
sive quid positum suspensumve habuerit, cuius casus peri-
culosus est : luliano placuit in patrem nuUam esse actionem,
sed cum ipso filio agendum, quod et in filio familias iudice

quo vulgo iter fiet, vel in quo consistetur, deiectum vel effusum quid erit,
quantum ex ea re damnum datum factumve erit, in eum, qui ibi
habitaverit, in duplum iudicium dabo' Dig. 9. 3. i. pr. The action for
the recovery of the penalty was popularis (of. Bk. i. 26. 3 and note, supr.)
if the offence resulted in the death of a free man — * dummodo sciamus,
ex pluribus desiderantibus haec actionem ei potissimum dari debere, cuius
interest, vel qui adfinitate cognationeve defunctum contingit ' Dig. ib. 5. 5 ;
like penal actions in general, it was not passively transmissible, and the
time within which it could be brought was limited to a year. A free
man who was only injured could sue at any length of time from the
occurrence, and in such cases the action seems also to have been popu-
laris for a year : ' sed si libero nocitum est, ipsi perpetua erit actio ; sed
si alius velit experiri annua erit haec actio, nee enim heredibus iure
hereditario competit, quippe quod in corpore libero damni datur, iure
hereditario transire ad successores non debet, quasi non sit danmum
pecuniarium, nam ex bono et aequo oritur ' Dig. loc. cit.

If the occupier of the house were cast in an actio de effusis vel deiectis,
he could recover by actio in factum from the actual delinquent unless he
were his slave or filiusfamilias, in which case he could usually pay the
damages from the peculium. Dig. ib. 5. 4.

For the actio positi aut suspensi cf. Dig. 9. 3. 5. 6, 'praetor ait, ne
quis in suggrunda protectove supra eum locum, quo vulgo iter fiet inve
quo consistetur, id positum habeat, cuius casus nocere cui possit; qui
ad versus ea fecerit, in eum solidorum decem in factum iudicium dabo.*
The action was popularis. Dig. ib. 13, and its object, besides the recovery
of the penalty, was the removal of the danger, i.e. it lay before any
damage was actually done.

§ 2. In this case no action whatever could be brought against the
father in the first instance, ' neque de peculio neque noxalem ' Dig. 44. 7. 5.
5, 'de peculio non datur, quia non ex contractu venit' Dig. 9. 3. i. 7.
But if judgment were recovered against the filiusfamilias the pater was
liable to the actio iudicati, and must pay to the extent of the peculium ;
at least this was the rule in delicts proper : ' quotiens nemo filium^Eimilias
ex causa delicti defendit, in eum iudicium datur; et si condenmatus
fuerit, filius iudicatum facere debet, tenet enim condemnatio. Quin
inuno etiam illud dicendum est, patrem quoque post condenmationem

Tit. 5.] DE OBUGATIONIBUS QUAE QUASI, ETC. 543

observandum est, qui litem suam fecerit. Item exercitor 3
navis aut cauponae aut stabuli de dolo aut furto, quod in nave
aut in caupona aut in stabulo factum erit, quasi ex maleficio ,
teneri videtur, si modo ipsius nullum est maleficium, sed ali-
cuius eorum, quorum opera navem aut cauponam aut stabulum
exerceret: cum enim neque ex contractu sit adversus eum
constituta haec actio et aliquatenus culpae reus est, quod
opera malorum hominum uteretur, ideo quasi ex maleficio
teneri videtur. in his autem casibus in factum actio com-
petit, quae heredi quidem datur, adversus heredem autem
non competit.

duntaxat de peculio posse conveniri' Dig. 9. 4. 34 and 35. If the
dangerous object had been positum or suspensum by a slave without the
master's knowledge, the praetor had allowed a noxal action, Dig. 9. 3.
I. pr.; ib. 5. 6, and doubtless the practice had been the same with children
in power ; for this subject see Tit. 8 and notes inf.

§ 3. The penalty to which shipowners, inn and stable keepers were
liable for such delicts of their emplqyis was twice the value of the
property stolen or damaged, Dig. 4. 9. 7. i ; 47. 5. 2. The same classes
of persons were bound quasi ex contractu to restore in safety and uninjured
the property of travellers and others which was placed in their custody
(receptum nautarum, cauponum et stabulariorum), unless the loss was
occasioned by vis maior, unavoidable accident, or contributory negligence
of the owner : ' ait praetor, nautae, caupones, stabularii, quod cuiusque
salvum fore receperint^ nisi restituent, in eos iudicium dabo ' Dig. 4. 9.
I. pr.

There is apparently no reason why the liability of masters for their
slaves* delicts in general (Tit. 8 inL) and of owners of animals for
damage done by them (Tit. 9) should not be considered quasi-delictual,
for it was enforced by special actions, which were at least as penal as
that against the judge ' qui litem suam fecerit.' The fact seems to be that
the cases mentioned in this Title are intended only as examples of quasi-
delictual obligation, and that the other two would naturally have found
a place among them but for Justinian's inveterate habit of following the
arrangement of Gaius. As the latter does not treat the subject at
all, he discusses the liability of masters and fathers for the delicts of
their slaves and children in power in close connection with a cognate
question — their liability upon their contracts ; so that Justinian, in his
anxiety to adhere to the latter arrangement, has committed a fault of
classification.

Before proceeding to the subject of actions in the next Title, it is
recommended that the student should read the Excursus at the end of
this Book on the earlier history of Roman civil procedure.

544 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

VI.

DE ACTIONIBUS.

Superest, ut de actionibus loquamur. actio autem nihil
aliud est, quam ius persequendi iudicio quod sibi debetur.

Tit. VT. Actio is a term which has a variety of meanings, more or less
cognate to one another. From signifying a mere act (as in Dig. 48. i. 7)
it becomes limited to a processual act, an act done as part of a judicial
proceeding, whether by one of the parties (Gaius iv. 11 sq., Dig. i. 2. 2.
6) or by the magistrate (Dig. i. 7. 4). In Dig. 47. 20. i it indicates a
public prosecution, and in Cod. 10. i. 6 it is used altogether improperly in
the sense of an evidentiary document.

But by far its commonest senses are two in number : (i) as here in the
text, it means * a right of action.' The expression * ius persequendi quod
sibi debetur ' at first might be taken to imply that actio is here used as
equivalent to actio in personam, for it is difficult to represent a person
who denies one's right to property as * owing' one a debt; but it is
plain from the next paragraph that Justinian is using actio in its widest
sense: cf. Dig. 50. 16. 178. 3 'hoc verbum "debuit" omnem omnino
actionem comprehendere intellegitur.' (2) The actual exercise of such
right of action (as in the expressions actionem dare, denegare, actione
experiri), or, more generally, a Megal remedy.* This sense in some
passages is narrower than in others ; its extension in fact is threefold :
(a) in its narrowest signification it denotes an actio in personam as
distinct from an actio in rem (p. 346 supr.), and here there is a close corre-
lation between actio and obligatio ; for every personal action asserts a
right in personam, and presupposes an obligatio. A real action, on the
other hand, though brought against a definite person, does not (as is re-
marked in § i) presuppose any 'vinculum iuris* between plaintiff and
defendant ; the latter is sued, not because he ' owes ' anything, properly
speaking, but because he will not recognise a right which the plaintiff
has and can assert against the world. After such action has been
definitely commenced, the parties are in a sense bound to one another
(Gaius iii. 180) ; but the action does not originate in an obligatio as
personal actions do. (b) Somewhat more widely, actio denotes a judicial
proceeding which (in the formulary period) commenced with a formula, in
contradistinction to interdicts and the extraordinaria cognitio: and {c)
finally, in some passages it bears the sense of any legal rehiedy whatso-
ever: 'actionis verbo continetur in rem, in personam, directa, utilis,
praeiudicium, sicut ait Pomponius stipulat tones etiam, quae praetoriae
sunt, quia actionum instar obtinent, ut damni infecti, legatorum, et si
quae similes sunt. Interdicta quoque actionis verbo continentur' Dig.
44' 7* 37> *integri restitutio est redintegrandae rei vel causae €u:Ho^
Paul. sent. rec. i. 7. i, 'agere etiam is videtur, qui exceptione utitur,
nam reus in excipiendo actor est * Dig. 44. i. i : but cf. Dig. 50. 16. 8. i
' actionis verbo non continetur exceptic'

Tit. 6.] DE ACTION/BUS. 545

Omnium actionum, quibus inter aliquos apud iudices arbi- 1
trosve de quaque re quaeritur, summa divisio in duo genera
deducitur : aut enim in rem sunt aut in personam, namque
agit unusquisque aut cum eo, qui ei obligatus est vel ex con-
tractu vel ex maleficio, quo casu proditae actiones in per-
sonam sunt, per quas intendit adversarium ei dare aut dare
facere oportere et aliis quibusdam modis : aut cum eo agit,
qui nuUo iure ei obligatus est, movet tamen alicui de aliqua
re controversiam. quo casu proditae actiones in rem sunt,
veluti si rem corporalem possideat quis, quam Titius suam
esse affirmet, et possessor dominum se esse dicat : nam si
Titius suam esse intendat, in rem actio est. Aeque si agat 2
ius sibi esse fundo forte vel aedibus utendi fruendi vel per
fundum vicini eundi agendi vel ex fundo vicini aquam ducendi,
in rem actio est. eiusdem generis est actio de iure praediorum
urbanorum, veluti si agat ius sibi esse altius aedes suas tol-
lendi prospiciendive vel proiciendi aliquid vel immittendi in
vicini aedes. contra quoque de usu fructu et de servitutibus
praediorum rusticorum, item praediorum urbanorum invicem
quoque proditae sunt actiones, ut quis intendat ius non esse
adversario utendi fruendi, eundi agendi aquamve ducendi, item
altius tollendi prospiciendi proiciendi immittendi : istae quoque
actiones in rem sunt, sed negativae. quod genus actionis in
controversiis rerum corporalium proditum non est : nam in his
is agit qui non possidet: ei vero qui possidet non est actio

§ 1. The distinction of actions into real and personal is based in origin
on difference of formula (Excursus X inf.), to which there is an obvious
reference in Justinian's words * intendit . . . dare facere oportere,* * (rem)
suam esse intendat,* which, however, have no technical meaning in the
text, but merely describe in general terms the plaintifTs contention, as
expressed in the libellus conventionis, or writ of summons by which the
action was commenced. Other differences, e. g. in procedure, and in the
nature of the security to be given by the parties (Tit. 1 1 inf.), have now
disappeared, and a real differs from a personal action only in the nature
of the right for whose protection it is brought : the opposition is material
only, not formal. It will be found that in § 20 inf. Justinian interposes a
third class— actiones mixtae — between actions which are real and those
which are personal.

§ 2. For the rights to which the remedies described in this section
relate see Bk. ii. 3-5 and notes supr. The actio confessoria, affirming
a right of servitude in the plaintiff, lay not only against the dominus of

N n

546 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

prodita, per quam neget rem actoris esse, sane uno casu qui
possidet nihilo minus actoris partes optinet, sicut in latioribus

Sdigestorum libris opportunius apparebit. Sed istae quidem
actiones, quarum mentionem habuimus, et si quae sunt similes,
ex legitimis et civilibus causis descendunt. aliae autem sunt,
quas praetor ex sua iurisdictione comparatas habet tarn in
rem quam in personam, quas et ipsas necessarium est exemplis
ostendere. ecce plerumque ita permittit in rem agere, ut vel
actor diceret se quasi usu cepisse, quod usu non ceperit, vel ex
diverso possessor diceret adversariumsuum usu non cepisse quod

4 usu ceperit. Namque si cui ex iusta causa res aliqua tradita
fuerit, veluti ex causa emptionis aut donationis aut dotis aut
legatorum, necdum eius rei dominus effectus est, si eius rei
casu possessionem amiserit, nullam habet directam in rem

the res serviens, but against any one by whom the right was infringed, and
its objects were recognition of the right and damages for its infringe-
ment : in form it was arbitraria (§31 inf.). In many cases, especially of
praedial servitudes, the person entitled was not limited to this remedy,
but could use an interdict, and thereby compel the dominus, if he wished
to contest the right, to bring the actio negatoria. By this he asserted
the freedom of his property from the servitude affirmed by the other ; its
object being restoration of the property itself (if the other claimed a use
or usufruct) or cessation of the act by which the rights of ownership had
been interfered with ; damages for what had been done, and security by
stipulation against its repetition. For these actions generally cf. Mr.
Poste's note on Gaius iv. 3.

The single case referred to at the end of the section, in which a
possessor can be plaintiff in a real action, and of which Justinian says
fuller information may be found in the Digest, may be either where a
person, though not ceasing to 'possess' his property, has given it as
precarium to another, Dig. 43. 26. 1 5. 4 : or where one person possesses
ex iusta causa (i. e. as dominus) and another vi aut clam, but not from
him (so that the interdict Uti possidetis does not lie). Dig. 43. 17. 3. pr. ;
or where a civil possessor brings vindicatio against another who has
detention in his name. Dig. 6. i. 9 ; 7. 9. 7.pr.

§ 3. For the history of the distinction here drawn between actiones
civiles or legitimae, and actiones honorariae (the latter comprising the
two classes of utiles and in factum) see Excursus X. Actiones honorariae
in rem are exemplified in §§ 3-7, in personam in §§ 8-12 inf.

By possessor at the end of this section can only be meant ' is qui olim
possederat' (referring to § 5 inf.), cf. domino for 'ei qui dominus fuexat'

in §5.
§ 4. The actio Publiciana was the proper remedy of any one who had

Tit. 6.] DE ACTIONIBUS. 547

actionem ad earn rem persequendam : quippe ita proditae sunt
iure civili actiones, ut quis dominium suum vindicet. sed quia
sane durum erat eo casu deficere actionem, inventa est a prae-
tore actio, in qua dicit is, qui possessionem amisit, eam rem
se usu cepisse et ita vindicat suam esse, quae actio Publiciana

commenced the usucapion of property without being able to complete it
because some other person had obtained possession, and so interrupted
its operation, before his title had become indefeasible, p. 200 supr. The
conditions of success were as follow : ^

(i) The object must be capable of being acquired by usucapio or
prescription. Dig. 6. 2. 9. 5.

(2) The plaintiff must have had possession : 'ante traditionem,
quamvis bonae fidei quis emptor est, experiri Publiciana non poterit'
Dig. ib. 7. 16. By the edict the possession must have been acquired by
traditio: 'ait praetor, si quis id, quod traditur ex iusta causa non a
domino et nondum usucaptum petet, judicium dabo ' Dig. ib. i ; but by
construction the remedy was extended to modes of acquiring possession
generally : * quaccunque sunt iustae causae adquirendarum rerum, si ex
his causis nacti res amiserimus, dabitur nobis earum rerum persequend-
arum gratia haec actio' Dig. ib. 13. pr. This rule, however, does not
apply in those exceptional cases (e.g. sometimes in legatum) where
ownership vested without possession being actually delivered. Dig. ib. i.
2 ; ib. 7. pr. Moreover, the possession must be usucapion possession :
it must have been derived ex iusta causa (p. 228 supr.), Gains iv. 36, and
be accompanied by bona fides, Dig. 6. 2. 3. i ; ib. 7. 11-16; 9. 4. 28 :
whether throughout its continuance, or only at its inception, is matter of
doubt.

(3) The action can be brought with success only against a defendant
who possesses with less right than the plaintiff, and therefore neither
against the dominus. Dig. 6. 2. 16 and 17 (unless the case is one in which,
supposing the owner brought vindicatio against the possessor, he could
be repelled by a iusta exceptio, e. g. doli, rei venditae et traditae, or rei
iudicatae), nor against any other person whose possession is as righteous
in respect of bona fides, iusta causa, etc., as the plaintiffs had been,
unless both derived their possession from the same person, Dig. 6. 2.
9.4.

The actio Publiciana could be used to establish servitudes no less than
dominium : 'si de usufructu agatur tradito, Publiciana datur, itemque
servitutibus urbanorum praediorum per traditionem constitutis, vel per
patientiam, forte si per domum quis suam passus est aquaeductum
transduci : item rusticorum, nam et hie traditionem et patientiam
tuendam constat * Dig. 6. 2. 11. i. The Publicius by whom the action was
introduced was perhaps the Quintus Publicius who is mentioned by
Cicero as having been praetor circ. B.C. 66, pro Cluent. 45. It was in
existence certainly in the time of Neratius, Dig. 6. 2. and 17, who was
consul before the end of the first century.

N n 3

548 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

appellatur, quoniam primum a Publicio praetore in edicto pro-

5 posita est. Rursus ex diverso si quis, cum rei publicae causa
abesset vel in hostium potestate esset, rem eius qui in civitate
esset usu ceperit, permittitur domino, si possessor rei publicae
causa abesse desierit, tunc intra annum rescissa usucapione
earn petere, id est ita petere, ut dicat possessorem usu non
cepisse et ob id suam esse rem. quod genus actionis et aliis
quibusdam simili aequitate motus praetor accommodat, sicut
ex latiore digestorum seu pandectarum volumine intellegere

6 licet. Itefn si quis in fraudem creditorum rem suam alicui
tradiderit, bonis eius a creditoribus ex sententia praesidis
possessis permittitur ipsis creditoribus reiscissa traditione earn
rem petere, id est dicere eam rem traditam non esse et ob id

§ 6. In the case here supposed the title conferred by a completed
usucapion is rescinded or cancelled by in integrum restitutio (note on § 33
inf.), and the plaintiiT establishes his right by an ordinary vindicatio or
Publiciana according to the precise nature of his interest : the assumption
by some writers of an independent action (rescissoria or contraria Publi-
cianae) has no foundation. The text speaks only of protection against
an absent person ; but the principle was applied equally in favour of
those whose property, while they were absent rei publicae causa, had
been acquired per usucapionem, Dig. 4. 6. 23. 3 ; cf. the note on in integrum
restitutio, § 33 inf. For the old annus utilis Justinian substituted in all
cases a quadriennium continuum, Cod. 2. 53. 7. The references at the end
of the paragraph are to Dig. 4. 6. i. i ; ib. 21. pr. ; ib. 26. 8 ; 17. i. 57 :

44. 7. 35- pr-

§ 6. The iusta causa of the in integrum restitutio in this case is the dolus
of the alienee, and the creditors' action, as seems clear from the text, is
in rem : though it is difficult to see why after restitutio there was
any necessity for a fiction : cf. Bk. iii. 10. 3 and notes supr. Whether
the 'action (as Theophilus says) was called Pauliana is disputed : it is
certain that there was a personal action of the same name, and lying
under similar circumstances. So far as can be elicited from the
authorities, it seems probable that the creditors had, as against fraudu-
lent alienation by the debtor (including wrongful payment of one or
some of them in full when he was aware of his insolvency), (i) an actio
Pauliana in personam, Dig. 22. i. 38. 4, (2) an interdictum firaudatorium,
Dig. 36. I. 69. I, (3) an actio in factum available against a bona fide
alienee, Dig. 42. 8. 10. pr., (4) the in integrum restitutio mentioned in
the text, with a view to a real action (Pauliana ?). The relation between
these remedies, and the precise purpose for which they were respectively
employed, are so variously represented by the commentators that it is
impossible here to go further into the question. For the missio in
possessionem of creditors upon their debtors' insolvency see p. 389 supr.

Tit. 6.] DE ACTIONIBUS. 549

in bonis debitoris mansisse. Item Serviana et quasi Serviana, 7
quae etiam hypothecaria vocatur, ex ipsius praetoris iuris-
dictione substantiam capit. Serviana autem experitur quis
de rebus coloni, quae pignoris iure pro mercedibus fundi ei
tenentur : quasi Serviana autem qua creditores pignora hypo-
thecasve persequuntur. inter pignus autem et hypothecam
quantum ad actionem hypothecariam nihil interest : nam de
qua re inter creditorem et debitorem convenerit, ut sit pro
debito obligata, utraque hac appellatione continetur. sed in
aliis differentia est: nam pignoris appellatione earn proprie
contineri dicimus, quae simul etiam traditur creditor!, maxime
si mobilis sit : at eam, quae sine traditione nuda conventione
tenetur, proprie hypothecae appellatione contineri dicimus.

§ 7. For pignus and hypotheca see pp. 329-333 supr. By the actiones
Serviana and hypothecaria the pledgee was enabled, on proving his right
of pledge or hypothec, to recover the property over which it existed or
damages against any one in whose possession it was, and he could bring
the action even before the day fixed for payment had arrived. Dig. 20. i.
14. pr. The formula had in the earlier period been arbitraria, and ran
somewhat as follows : ' si paret eam rem, de qua agitur, ab eo, cuius in
bonis turn fuit (pledgor), Aulo Agerio pignoris nomine obligatam esse
pro pecunia, quam ilium A^. A^. ex mutuo dare oporteret, eamque pecu-
niam solutam non esse, neque eo nomine satisfactum esse, neque per A"*.
A", stare, quominus solvatur, nisi arbitratu tuo Numerius Negidius A**. A**,
restituet aut pecuniam solvat, quanti ea res erit, tanti N°*. N™. A*». A*».
condemna.'

If the defendant was the pledgor himself, and was condemned in a
money payment, its amount could not exceed that of the debt ; but if he
was a third person, the damages were calculated on the full value of the
property, though the plaintiff had to hand over to the pledgor any
surplus beyond the amount of the debt, Dig. 20. i. 21. 3. There was
also some difference between this and an ordinary real action in respect
of the defendant's liability for fructus, and of some special defences which
were here open for him ; for by Nov. 4, by which Justinian introduced the
beneficium ordinis for sureties, p. 427 supr., a similar beneficium by way
of exceptio was established for this case ; it being provided that any third
person who was in possession of the property pledged could require the
pledgee to sue the pledgor and his sureties by personal action before
coming upon him with the actio hypothecaria, and that when the debtor
as well as his surety had given the creditor hypothecary rights, the
creditor could be compelled to resort to those given by the former before
he could insist on those given by the latter.

By saying of these actions * ex ipsius praetoris iurisdictione substantiam
capiunt ' Justinian means that, unlike those mentioned in the preceding

550 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

8 In personam quoque actiones ex sua iurisdictione propositas
habet praetor, veluti de pecunia constituta, cui similis vide-
batur recepticia : sed ex nostra constitutione, cum et si quid
plenius habebat, hoc in pecuniam constitutam transfusum est,
ea quasi supervacua iussa est cum sua auctoritate a nostris
legibus recedere. item praetor proposuit de peculio servorum
filiorumque familias et ex qua qiiaeritur, an actor iuraverit, et

9 alias complures. De pecunia autem constituta cum omnibus
agitur, quicumque vel pro se vel pro alio soluturos se con-
stituerint, nulla scilicet stipulatione interposita. nam alioquin

10 si stipulanti promiserint, iure civili tenentur. Actiones autem
de peculio ideo adversus patrem dominumve comparavit prae-
tor, quia licet ex contractu filiorum servorumve ipso iure non
teneantur, aequum tamen esset peculio tenus, quod veluti
patrimonium est filiorum filiarumque, item servorum, con-

11 demnari eos. Item si quis postulante adversario iuraverit
deberi sibi pecuniam quam peteret, neque ei solvatur, iustis-
sime accommodat ei talem actionem, per quam non illud

sections, they were not feigned to be civil actions, but were bold innova-
tions (actiones in factum) ; see Gaius iv. lo, and Excursus X inf. For the
pledgee's possessory remedy (interdictum Salvianum) and its relation to
the actiones Serviana and hypothecaria see on Tit. 15. 3 inf.

§ 8. For constitutum see p. 429 supr. Recepticia was an action on the
formless promise of a banker to creditors or customers, e.g. to return
money or other property entrusted to him on and after a specified day ;
the name being perhaps derived from the sense of recipere which
Nonius Marcellus attributes to recipere — promittere, poUiceri : cf.
Asconius Pedianus : ' Vecipitur, id est promittitur, id est pro iudicato
respondetur.' The advantages of recepticia over the actio de constituta
pecunia had been that it applied to all kinds of property, while the latter
lay only on promises relating to res fungibiles ; that it admitted, while
the latter did not, of condicio or dies, and was perpetual, while the
latter was limited to a year. The reference is to Cod. 4. 18. 2. pr. and i.
For the actio de peculio see Tit. 7. 4 and notes inf. ; for that ' ex qua
quaeritur an actor iuraverit ' note on the next section.

§ 11. The Romans regarded the oath as a mode of proving rights and
duties, no less than facts, co-ordinate with judgment and confession;
'post rem iudicatam vel iureiurando decisam vel confessionem in iure
factam nihil quaeritur' Dig. 42. i. 56 : cf. note on Tit. 13. 4 inf. As
appears from the text, when a matter had once been sworn to by one of
the parties, the other was estopped from disputing its truth otherwise
than by denying that the oath had been taken at all ; behind it the law

Tit. 6.] DE ACTIONIBUS. 551

quaeritur, an ei pecunia debeatur, sed an luraverit. Poenales 12
quoque actiones bene multas ex sua iurisdictione introduxit :
veluti adversus eum qui quid ex albo eius corrupisset : et in
eum qui patronum vel parentem in ius vocasset, cum id non
impetrasset : item adversus eum, qui vi exemerit eum qui in
ius vocaretur, cuiusve dolo alius exemerit : et alias innume-
rabiles. Praeiudiciales actiones in rem esse videntur, quales 13
sunt, per quas quaeritur, an aliquis liber vel an libertus sit,
vel de partu agnoscendo. ex quibus fere una ilia legitimam
causam habet, per quam quaeritur, an aliquis liber sit:
ceterae ex ipsius praetoris iurisdictione substantiam capiunt.

could not go : 'non aliud quaeritur quam an iuratum sit' Dig. 12.2. 5. 2.
The mode in which the oath was used was by the plaintiff demanding of
his adversary in the initial stage of the proceedings (in iure, in the
formulary period) whether he would swear that the claim had no founda-
tion ; if he did so, he was protected by the exceptio iurisiurandi from
further litigation : but if, without being prepared to go so far as this, he
challenged the plaintiff to swear to the justice of his claim, and the
latter did so, he was debarred from denying his liability ; if he refused
to discharge it, he could be brought to bay by the actio in factum re-
ferred to in the text.

§ 12. The praetor's edicts and orders seem, like the leges (Dion. Halic.
R. A. 3. 36), to have been engraved on tablets of oak, which were then
whitened over and exposed to public view. Subsequently other materials
were used: 'in albo, vel in charta, vel in alia materia' Dig. 2. i.7.pr.,
but the name album was retained. AIbi corruptio is used in a wide
sense : ' is qui album raserit, corruperit, sustulerit, mutaverit, quidve
aliud propositum edicendi causa turbaverit, extra ordinem punietur'
Paul. sent, rec i. 13 a. 3. For the action of a patron against his freed-
man for suing him without first obtaining the praetor's permission (Tit. 16.
3 inf.) see Gains iv. 46, which also refers to the penal actio in factum
' contra eum qui vi exemerit eum qui in ius vocatur : ' for the latter cf.
also Dig. 2. 7. Among the 'alias innumerabiles ' are the actions men-
tioned in Tit. 5 supr., and § 25 inf.

§ 18. For praejudicial actions under the system of formulae see Ex-
cursus X inf. Their object is merely to judicially ascertain facts which
are of legal importance, or the existence of alleged leg^l relations, e. g. a
man's status or paternity, the amount of a dos (Gains iv. 44), whether a
woman is married or not, Dig. 25. 3. 3. 4, whether the provisions of this
or that enactment have been complied with (e. g. the lex Cicereia, Gaius
iii. 123. p. 425 supr.), etc. Hence the name praeiudicia ; the decision
forms or may form the basis of subsequent litigation. As they do not
result in condemnation, but merely in a pronunciatio, they are sometimes
said to be iudicia, but not actiones (e. g. Dig. 3. 3. 35. 2) ; Justinian says

55^ INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

14 Sic itaque discretis actionibus certum est non posse actorem
rem suam ita ab aliquo petere * si paret eum dare oportere ' :
nee enim quod actoris est id ei dari oportet, quia scilicet dari
cuiquam id intellegitur, quod ita datur, ut eius fiat, nee res
quae iam actoris est magis eius fieri potest, plane odio fiirum,
quo magis pluribus actionibus teneantur, eflfectum est, ut extra
poenam dupli aut quadrupli rei recipiendae nomine fures
etiam hac actione teneantur 'si paret eos dare oportere,'
quamvis sit adversus eos etiam haec in rem actio, per quam

15 rem suam quis esse petit. Appellamus autem in rem quidem
actiones vindicationes : in personam vero actiones, quibus dare
facere oportere intenditur, condictiones. condicere enim est
denuntiare prisca lingua: nunc vero abusive dicimus condic-
tionem actionem in personam esse, qua actor intendit dari sibi
oportere : nulla enim hoc tempore eo nomine denuntiatio fit.

16 Sequens ilia divisio est, quod quaedam actiones rei per-
sequendae gratia comparatae sunt, quaedam poenae perse-

17 quendae, quaedam mixtae sunt. Rei persequendae causa
comparatae sunt omnes in rem actiones. earum vero actionum,

of them * in rem esse videntur ' because the plaintiff * cum eo agit qui
nullo iure ei obligatus est, movet tamen alicui de aliqua re controversiaxn '
§ I supr. : cf. Gaius iv. ^7 ; though in some passages (e. g. Dig. 44. 7. 37.
pr. ; 6. 1. 1.2) they are opposed to vindicationes. The praeiudicium * an
aliquis liber sit ' was older even than the Twelve Tables : * ius quod ipse
[Appius Claudius] ex vetere iure in duodecim tabulas transtulerat ' Dig.
I. 2. 2. 24.

§ 14. Of course the expression ' si paret,* etc. has no formal or pro-
cessual signification in Justinian ; all that is meant is that a plaintiff
cannot by a real action demand conveyance (datio) but merely recog-
nition of his ownership or other ius in rem. For the anomaly of allowing
a person whose property has been stolen the option between a real and a
personal action see p. 523 supr. In this connection furtum includes not
only rapina, but violent ouster from land : ' et ei, qui vi aliquem de fundo
deiecit posse condici ' Dig. 13. 3. 2.

§ 16. For the origin and history of condictio see Excursus X inf. The
grounds upon which it lay were the same in Justinian's time as in the
formulary period ; viz. mutuum, formal contract, legatum, lex (§ 24 inf.),
and enrichment of a defendant at the plaintiffs cost sine causa ; but the
penal sponsio tertiae partis in condictio certi had disappeared, as might
be inferred from the description in § 17 inf. of the remedy on mutuum as
merely rei persecutoria.

§ 17. Actions rei persequendae causa are defined as those ' quibus

Tit. 6.1 DE ACTIONIBUS. 553

quae in personam sunt, hae quidem quae ex contractu nas-
cuntur fere omnes rei persequendae causa comparatae vi-
dentur: veluti quibus mutuam pecuniam vel in stipulatum
deductam petit actor, item commodati, deposit!, mandati, pro
socio, ex empto vendito, locato conducto, plane si depositi
agetur eo nomine, quod tumultus incendii ruinae naufragii
causa depositum sit, in duplum actionem praetor reddit, si
modo cum ipso apud quem depositum sit aut cum herede eius
ex dolo ipsius agitur : quo casu mixta est actio. Ex maleficiis 18
vero proditae actiones aliae tantum poenae persequendae
causa comparatae sunt, aliae tam poenae quam rei perse-
quendae et ob id mixtae sunt, poenam tantum persequitur
quis actione furti : sive enim manifesti agatur quadrupli sive
nee manifesti dupli, de sola poena agitur: nam ipsam rem
propria actione persequitur quis, id est suam esse petens, sive
fur ipse eam rem possideat, sive alius quilibet : eo amplius
adversus furem etiam condictio est rei. Vi autem bonorum 19
raptorum actio mixta est, quia in quadruplo rei persecutio
continetur, poena autem tripli est. sed et l^is Aquiliae actio
de damno mixta est, non solum si adversus infitiantem in
duplum agatur, sed interdum et si in simplum quisque agit.
veluti si quis hominem claudum aut luscum occiderit, qui in
eo anno integer et magni pretii fuerit : tanti enim damnatur,
quanti is homo in eo anno plurimi fuerit, secundum iam tra-
ditam divisionem. item mixta est actio contra eos, qui relicta
sacrosanctis ecclesiis vel aliis venerabilibus locis legati vel
fideicommissi nomine dare distulerint usque adeo, ut etiam in
indicium vocarentur : tunc etenim et ipsam rem vel pecuniam

pcrsequimur quod ex patrimonio abest ' Dig. 44. 7. 35 ; they arc designed
merely to redress and make reparation for the wrong by which they are
called into operation. For depositum miserabile see p. 398 supr. The
contractual actio redhibitoria (p. 437 supr.) was also sometimes penal,
Dig. 21. 1. 45, and so too was the action quasi ex contractu spoken of in
§ 19 ad fin.

§ 18. For the actio furti see p. 521 supr.

§ 19. For the 'mixed' character of the actions on vi bona rapta and
damnum iniuria datum cf. Tit 2. pr., Tit. 3. 9 supr. and notes. The latter
would be merely rei persecutoria if the defendant admitted his liability in
the abstract (§ 26 inf.), the iudicium being solely for the purpose of

554 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

quae relicta est dare compelluntur et aliud tantum pro poena,
et ideo in duplum eius fit condemnatio.

20 Quaedam actiones mixtam causam optinere videntur tarn
in rem quam in personam, qualis est familiae erciscundae
actio, quae competit coheredibus de dividenda hereditate :
item communi dividundo, quae inter eos redditur, inter quos
aliquid commune est, ut id dividatur: item finium regun-
dorum, quae inter eos agitur qui confines agros habent. in
quibus tribus iudiciis permittitur iudici rem alicui ex litiga-
toribus ex bono et aequo adiudicare et, si unius pars praegra-
vari videbitur, eum invicem certa pecunia alteri condemnare.

21 Omnes autem actiones vel in simplum conceptae sunt vel

assessing the damages, and if the value of the slave killed (e. g.) had not
been higher in the preceding year than at the actual moment of his death.
For legacies ad pias causas cf. Bk. iii. 27. 7 and § 26 inf.

§ 20. The functions of the judge in the iudicia divisoria are more fully
described in Tit. 17. 4-6 inf. The explanation of their being partly real,
partly personal, must be sought in the structure of their formula in the
earlier period. This seems to have contained two intentiones, the first
in rem concepta, and followed by an adiudicatio (' quantum adiudicari ex
aequo et bono oportet iudex Titio adiudicato ' Gains iv. 42), the second
concepta in personam, and followed by a condemnatio (e. g. tum quicquid
ob eam rem alterutrum alteri dare facere oportet ex fide bona, eius iudex
alterum alteri condemnato). Mutatis mutandis, the whole formula was
repeated for each of the parties (e. g. each joint owner), whence Ulpian
calls these actions mixtae in another sense : ' mixtae actiones, in quibus
uterque actor est' Dig. 44. 7. 37. i. Under Justinian they are in reality
in personam only, arising quasi ex contractu, Bk. iii. 27. 3 supr. : ^ finium
regundorum actio in personam est, licet pro vindicatione rei est' Dig.
10. I. I.

The last named action, which was as old as the Twelve Tables, and
had been regulated by a lex Mamilia and enactments of Constantine,
Valentinian II. and Theodosius 1, was in Justinian's time limited to dis-
" putes as to the boundaries of praedia rustica, Dig. 10. i. 4. 10 ; the judge
was assisted by experts (agrimensores) as assessors, and neither piuty
could plead usucapio unless it had extended to thirty years.

§ 2L The expression in simplum, in duplum etc. concepta, which
refers to the condenmatio, is another trace of the survival of the formula
in the later procedure. Where a plaintiff sues for * id quod sua interest '
the action is in simplum concepta, though the amount of this may far
exceed the verum rei pretium^ Dig. 19. i. 13. pr. ' Ulterius (quam in
quadruplum) nulla actio extenditur' means no more than that in no
action does the law direct the recovery of more than four times the
penal unit ; for sometimes the penalty will have no fixed relation to the

Tit. 6.] DE ACTIONIBUS. 555

in duplum vel in triplum vel in quadruplum : ulterius autem
nulla actio extenditur. In simplum agitur veluti ex stipula- 22
tione, ex mutui datione, ex empto vendito, locato conducto,
mandato et denique ex aliis compluribus causis. In duplum 23
agimus veluti furti nee manifesti, damni iniuriae ex lege Aquilia,
deposit! ex quibusdam casibus : item servi corrupti, quae
competit in eum, cuius hortatu consiliove servus alienus fu-
gerit aut contumax adversus dominum factus est aut luxuriose
vivere coeperit aut denique quolibet modo deterior factus sit
(in qua actione etiam earum rerum, quas fugiendo servus
abstulit, aestimatio deducitur) : item ex legato, quod venera-
bilibus locis relictum est, secundum ea quae supra diximus.
Tripli vero, cum quidam maiorem verae aestimationis quanti- 24
tatem in libello conventionis inseruit, ut ex hac causa viatores,
id est exsecutores litium, ampliorem summam sportularum

value of the object, and so as a fact will be more than fourfold that value
(e. g. Cod. 7. 10. 7), or there may be two condemnations arising ex eadem
re, which added together exceed the quadruplum, e.g. Dig. 47. 9. 3. 8.

§ 28. The action under the lex Aquilia is in duplum only adversus
infitiantem, § 19 supr., and that on the deposit only under the cir-
cumstances referred to in § 17. The actio servi corrupti (for which
cf. Tit. I. 8 supr.) is said to be in duplum by the praetor in Dig. 11.
3. I. pr.

§ 24. The libellus conventionis was a petition or bill addressed to the
judge, by which actions were commenced under the system of cognitio
in vogue in Justinian's time ; and this is the sole meaning in his com-
pilations of in ius vocatio and actionis editio. It had to contain short
particulars of the plaintiff's claim, so as to give the defendant a general
idea of the nature of the demand made against him, and to show more
specifically, (i) the character of the right affirmed, e.g. whether it was real
or personal ; if the former, whether dominium, servitus, pledge, etc. ; if v
the latter, whether arising ex contractu or delicto, and what kind of con-
tract or delict ; (2) the thing or the wrongful act to which the action
related. This statement of claim is what is now meant by intentio, e. g.
in § 33 inf., cf. note on § i supr. It was necessary that it should be
signed by the plaintiff, or by a notary on his behalf if he could not write ;
by this he definitely assumed the responsibility of the action, which, how-
ever, he more formally acknowledged by entering into a cautio, in one of
the forms described in Tit. 11. 2 inf., which was enrolled in the acta, and
by which he bound himself to bring the cause to trial within two months, v
or in default to pay the defendant double the costs which he had in-
curred, to push it through to judgment, and to pay the defendant's costs
in the event of defeat. Unless the judge refused the action, the libellus

556 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

nomine exegerint: tunc enim quod propter eorum causam
damnum passus fuerit reus, id triplum ab actore consequetur,
ut in hoc triplo et simplum, in quo damnum passus est, con-
numeretur. quod nostra constitutio induxit, quae in nostro
codice fulget, ex qua dubio procul est ex lege condicticiam

25 emanare. Quadrupli veluti furti manifesti, item de eo, quod
metus causa factum sit, deque ea pecunia, quae in hoc data sit,
ut is cui datur calumniae causa negotium alicui faceret vel
non faceret: item ex lege condicticia a nostra constitutione
oritur, in quadruplum condemnationem imponens his exse-
cutoribus litium, qui contra nostrae constitutionis normam

26 a reis quicquam exegerint. Sed furti quidem nee manifesti
actio et servi corrupti a ceteris, de quibus simul locuti sumus,
eo diifert, quod hae actiones omnimodo dupli sunt : at illae,
id est damni iniuriae ex l^e Aquilia et interdum depositi,
infitiatione duplicantur, in confitentem autem in simplum
dantur : sed ilia, quae de his competit, quae relicta venera-
bilibus locis sunt, non solum infitiatione duplicatur, sed et si

was now registered in the acta, and the defendant was summoned (com-
monitio, citatio) by an officer of the court (executor, viator), a copy of the
libellus being at the same time served upon him. In reply to this he
had to deliver a signed and dated libellus contradictionis or responsionis,
stating his defence, if any ; to pay a fee (sportulae, referred to in this
section) proportioned to the value of the matter in dispute, and to bind
himself by a cautio, usually with sureties, to appear in court on the day
fixed for trial, and ' in iudicio permanere usque ad terminum litis ' Tit.
II. 2. inf.; in default of this security he was liable to be placed under
supervision, and even to be incarcerated, during the process. The day
for trial was fixed by the plaintifif when he delivered his bill or libellus*
but by an enactment of Justinian (Nov. 53. 3) the defendant was entitled
to have an interval of at least twenty days.

For plus petitio by the plaintiff in his libellus conventionis see § 33 inf.
The only other actions apparently which had been in triplum conceptae
are those on furtum conceptum and oblatum, Gaius iii. 191, iv. 173, p. 516
supr. For statutory condictions see Dig. 13. 2. Justinian's enactment
referred to is in Cod. 3. 10. 2. 2.

§ 26. For the actio quod metus causa see § 27 and notes inf. ; and for
calumnia Tit. 16. i inf. The words 'negotium ahcui faceret' are from the
edict (Dig. 3. 6. i. pr.) ; the jurists seem to have restricted the negotium
to actual litigation or prosecution, Dig. ib. i. 6. 8 and 9. Justinian's con-
stitution is in Cod. 3. 2. 4.

§ 26. See on Bk. iii. 27. 7 supr. The heir charged with legacies ad
pias causas is penalised not only for inficiatio but for mora.

Tit. 6.] DE ACTIONIBUS. 557

distulerit relicti solutionem, usque quo iussu magistratuum
nostrorum conveniatur, in confitentem vero et antequam iussu
magistratuum conveniatur solventem simpli redditur. Item 27
actio de eo, quod metus causa factum sit, a ceteris, de quibus
simul locuti sumus, eo difTert, quod eius natura tacite con-
tinetur, ut, qui iudicis iussu ipsam rem actori restituat, absol-
vatur. quod in ceteris casibus non ita est, sed omnimodo
quisque in quadruplum condemnatur, quod est et in furti
manifesti actione.

Actionum autem quaedam bonae fidei sunt, quaedam strict! 28
iuris. bonae fidei sunt hae: ex empto vendito, locato con-
ducto, negotiorum gestorum, mandati, deposit!, pro socio,
tutelae, commodati, pigneraticia, familiae erciscundae, com-
muni dividundo, praescriptis verbis quae de aestimato pro-

§ 27. The Romans regarded dispositions made under the pressure of
ntimidation (as distinct from actual force) as really voluntary : 'coactus
volui' Dig. 4. 2. 21. 5 ; and the civil law therefore upheld them. They
first became impeachable by the introduction of the praetorian actio quod ^
metus causa, to support which, however, it was as a rule required that the
threat should have been directed against the life, limb, or liberty of the
plaintiff or some near relative, Dig. ib. 2 ; ib. 3. I ; ib. 4-6 ; ib. 7. i ; ib.
8, and could have been carried out by the other. It was said to be in rem
scripta. Dig. ib. 9. 8 ; i. e. it could be brought against any one who had
profited by the intimidation : ' nee cuiquam iniquum videtur ex alieno «
facto alium in quadruplum condemnari, quia non statim quadrupli est
actio, sed si res non restituatur' Dig. ib. 14. 3. The penal action in
quadruplum was prescribed in a year ; after that it was merely rei perse-
cutoria, and was granted only causa cognita, after a preliminary inves-
tigation. Dig. ib. 14. I ; against the heir it was not penal : * licet enim
poena ad heredem non transeat, attamen, quod turpiter vel scelere quae-
situm est, ut est et rescriptum, ad compendium heredis non debet perti-
nere' Dig. ib. 16. 2. The plaintiff had other remedies in the exceptio,
metus, Tit. 13. 9 inf. : in integrum restitutio, § 33 inf., and in the ordinary
actions on many contracts.

§ 28. The origin of the distinction between actions stricti iuris and
bonae fidei is described in Excursus X inf. The broad general diver-
gence between them is well put by Cicero, pro Rose. 4 'quid est in
iudicio ? directum, asperum, simplex : si paret . . . dari oportere. Quid
est in arbitrio ? mite, moderatum, quantum aequius melius, id dari.' But
the expression actio stricti iuris^ which does not occur elsewhere in the
Corpus iuris, is .unhappy, as tending to obscure the real character of the
distinction ; the ius is just as strictum in a bonae fidei action ; what is
strictum is the iudicium (§ 30 inf.). The principal specific points of dif- ^
ference are as follow :

558 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

ponitur, et ea, quae ex permutatione competit, et hereditatis
petitio. quamvis enim usque adhuc incertum erat, sive inter

(i) Where the action is stricti iuris, the judge is bound by the strict and
literal words of the disposition ; where it is bonae fidei he may go behind
them to discover the real intention of the parties. Hence, in the latter
case, he may take cognisance of pacta adiecta, formless subsidiary con-
ventions of the parties, if substantially a part of the disposition upon
which the action is brought, Dig. 2. 14. 7. 5. In stricti iuris iudicia this
was not possible under the older law, Dig. ib. 7, though later some excep-
tions were recognized, Dig. 12. i. 40, and by the insertion of the clausula
doli (Dig. 45. I. 121 ; 50. 16. 69) in the contract upon which the action
was brought the judge would be enabled to deal with the case much as if
the action had been bonae fidei. So too in a bonae fidei action the judge
may rule local or other usages to be implied terms in a contract, Dig. 21.
I. 31. 20; 3.5-7.

(2) A bonae fidei action lies on grounds on which one stricti iuris would
not, e. g. dolus and metus : i. e. a party who has been induced by fraud or
intimidation to make a disposition may impeach its validity by the
ordinary action thereon, if that action is of the former, but not if it is of
the latter character.

(3) Where a defendant is liable for ' omnis causa,' the value of the latter
is in a bonae fidei action ascertained as from the date of mora ; in one which
is stricti iuris (except possibly where it is condictio incerti) only from litis
contestatio, Dig. 22. i. 38. 7 and 8.

(4) Under the formulary procedure the judge who tried a stricti iuris
action could listen to no exceptio which had not been expressly set
forth in the formula ; in bonae fidei actions no defences which could be
included under the very comprehensive idea of dolus need be advanced
so early in the proceedings ; see Excursus X inf. But under Justinian
the maxim 'doli exceptio bonae fidei iudiciis inest' (which occurs in Dig.
24. 3. 21 : 30. 84. 5) has no processual significance : the stage at which
such defences had to be advanced is determined by other considerations,
as is shown on Tit. 13. pr. inf.

(5) In stricti iuris actions iusiurandum or iuramentum in litem was, as
a rule, inadmissible, but was regularly applied in such actions bonae fidei
as demanded restitution or production of property if the defendant refused
or through his own fault was unable to produce or restore.

(6) In stricti iuris actions the damages were assessed (litis aestimatio)
as at the moment of litis contestatio : in bonae fidei actions at condem-
natio, Dig. 13. 6. 3. 2.

(7) If a place was fixed for the performance of a contract the remedy
upon which was stricti iuris, it could originally be brought at that place
only ; a bonae fidei action under similar circumstances ky at any place
where the defendant was amenable to the jurisdiction ; see on Bk. iiL 15.
5 supr.

To Justinian's list of bonae fidei actions must be added (for the older

Tit. 6.1 DE ACTION/BUS. 559

bonae iidei iudicia connumeranda sit sive non, nostra tamen
constitutio aperte earn esse bonae fidei disposuit. Fuerat 29
antea et rei uxoriae actio ex bonae fidei iudiciis: sed cum
pleniorem esse ex stipulatu actionem invenientes omne ius,
quod res uxoria ante habebat, cum multis divisionibus in ex
stipulatu actionem, quae de dotibus exigendis proponitur,
transtulimus, merito rei uxoriae actione sublata ex stipulatu,
quae pro ea introducta est, naturam bonae fidei iudicii tantum
in exactione dotis meruit, ut bonae fidei sit. sed et tacitam
ei dedimus hypothecam : praeferri autem aliis creditoribus in
hypothecis tunc censuimus, cum ipsa mulier de dote sua ex-
periatur, cuius soHus providentia hoc induximus. In bonae 30
fidei autem iudiciis libera potestas permitti ^videtur iudici ex
bono et aequo aestimandi, quantum actori restitui debeat. in

law) the actio fiduciae (Gaius iv. 62) ; and the action on innominate
contracts generally, not merely on aestimatum and permutatio, was of
this character.

The SC. Juventianum passed under Hadrian first gave hereditatis
petitio a mixed character (Dig. 5. 3. 20. 6) by enabling the heir to recover
from other persons all advantage which they had derived from res here-
'ditariae which they no longer possessed (e. g. which they had sold) ; they
came, in fact, to be regarded somewhat in the light of the heir's negoti-
orum gestores and, therefore, were bound as such to surrender to him all
profit which they had made by interfering in business which was not their
own. It would seem that, in prosecuting such claims, the action, being in
effect in personam, was conducted on bonae fidei principles, so that the
question arose, which Justinian determined by Cod. 3. 31. 12. 3, whether it
was not itself bonae fidei.

§ 29. The actio rei uxoriae (for the scope of which see p. 133 supr.) is
not so often said to be bonae fidei as to belong to a cognate class of
actions ' in bonum et aequum conoeptae ' Dig. 4. 5. 8 ; 24. 3. 66. 7, among ^^
which were also the actio iniuriarum aestimatoria. Dig. 47. 10. 11. i ; the
actio de efiiisis. Dig. 9. 3. i. pr., and the aedilician action mentioned in
Tit. 9. I inf. ; in these the discretion of the judge was freer even than in
bonae fidei actions proper. By substituting the actio ex stipulatu de
dotibus exigendis (which naturally was stricti iuris) for the actio rei
uxoriae Justinian fictitiously represented the restoration of the dos as
having been promised by stipulation with a clausula doli, whereby it
acquired the bonae fidei character which he here expressly gives it. The
superiority of the actio ex stipulatu had consisted in its being transmis-
sible to heirs and in some other points noticed in Cod. 5. 13. i. 3-10. For
the wife's right of hypotheca see p. 134 supr.

§ 80. ' Compensatio (set-of{) est debiti et crediti inter se contributio,'

56o INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

quo et illud continetur, ut, si quid invicem actorem praestare
oporteat, eo compensato in reliquum is cum quo actum est
condemnari debeat. sed et in strictis iudiciis ex rescripto divi
Marci opposita doli mali exceptione compensatio inducebatur.
sed nostra constitutio eas compensationes, quae iure aperto

Dig. 1 6. 2. I. The full application of the principle was only of slow
development in Roman law. Gaius tells us (iv. 64) that bankers in suing
their debtors were compelled to make allowance for what they themselves
owed the latter, and to bring their action only for the balance ; and that
the actions of bonorum emptores (p. 389 supr.) against debtors of the
purchased bankrupt estate were governed by the same rule, though the
'deductio'in the latter case had a wider operation than the 'compen-
satio' in the former (ib. 65-68). In bonae fidei iudicia the judge was
bound, as acting ex fide bona, to take account of sets-off arising ex eadem
causa, from the same transaction (ib. 61) ; and though Justinian says here
that set-off was not allowed in stricti iuris actions till the rescript of M.
Aurelius, and then only on the condition of the defendant's getting an
exceptio doli inserted in the formula, it would seem that this had been
done before in some actions of this class by special favour (Dig. 16. 2. 4
and 5), and that the emperor's enactment only made the matter a general
rule. As actions stricti iuris always lay only on transactions generating
unilateral obligation, it is obvious that here the set-off must arise ex dis-
pari causa, and consequently similar sets-ofTwere now allowed in bonae
fidei actions if advanced in the form of the same exceptio. The distinc-
tion between compensatio effected officio iudicis, and that resulting from
the use of the exceptio seems (though the point is much disputed) to have
lasted on in the new process after the disappearance of the formula, until
it was abolished by Justinian's enactment here referred to (Cod. 4. 31. 14.
pr. and i), so that in his time set-off of any kind, whether arising, ex
eadem or ex dispari causa, could be advanced with effect at any stage
of the action up to judgment, and consequently the words * ex eadem
causa' in § 34 inf. are held to have been imported into the Institutes from
Gaius iv. 61 by an oversight. Whether by this enactment Justinian first
allowed compensatio in real actions (* sive in rem sive in personam ') is
also uncertain ; traces of its earlier application in such cases are found by
some writers in Dig. 5. 2. 21. 2 ; 5. 3. 31. 2 ; 6. I. 48 : cf. the cases in
Bk. ii. 30. 32-34 supr.

It was essentia] that the claims set off against one another should
relate to par materia or genus : ' in compensationem hoc solum vocatur,
quod eiusdem generis et naturae est, veluti pecunia cum pecunia com-
pensatur, triticum cum tritico, vinum cum vino * Gaius iv. 66, * . . . .si
constat, pecuniam invicem deberi * Cod. 4. 31. 4 ; but it is hardly certain
how far it was required that the set-off should be liquidated, i. e. clearly
proved or proveable. The chief authority on this point is Cod. 4. 31. 14.
I ' ita tamen compensationes obici iubemus, si causa, ex qua compen-
setur, liquida sit, et non multis ambagibus innodata, sed possit iudici

Tit. 6.] DE ACTIONIBUS. 561

nituntur, latius introduxit, ut actiones ipso iure minuant sive
in rem sive personales sive alias quascumque, excepta sola
depositi actione, cui aliquid compensationis nomine opponi
satis impium esse credidimus, ne sub praetextu compensa-
tionis depositarum rerum quis exactione defraudetur. Prae- 31
terea quasdam actiones arbitrarias id est ex arbitrio iudicis

facilem cxitum sui praestare. Satis cnim miserabile est, post multa forte
vanaque certamina, cum res iam fiierit approbata, tunc ex altera parte,
quae iam paene convicta est, opponi compensationem iam certo et in-
dubitato debito, et moratoriis ambagibus spem condemnationis excludi.'
Though the expression *aperto iure' in the text above might seem to
imply tha^ the counter claim must have been proved and established in an
independent action, it seems better to understand this passage to mean
that the proof and aestimatio of the counter claim must not be so intricate
as to practically reverse the respective rSles of the parties, and as it were
to turn the defendant into a plaintiff.

Great difficulty is occasioned by the expression 'actiones ipso iure
minuant ' in the text, and by the attribution even in juristic writings (e. g.
Dig. 16. 2. 4 ; ib. 10. pr. ; ib. 21) to compensatio of an operation 'ipso
iure.' The standing opp>osition, in modes by which obligations were in-
validated, between invalidation ipso iure and invalidation ope exceptionis
(p. 462 supr.) has led some commentators to interpret these passages by
representing set-off as by itself (or * sine facto hominis *) absolutely '
extinguishing the plaintilTs claim, so far as it goes ; but if this were so,
such a tacit or automatic reduction of that claim would take place in all
cases where the defendant had a set-off, whether the latter wished it or
not; a hypothesis which is sufficiently disproved by Dig. 27. 4. i. 4
' praeterea si tutelae iudicio quis convenietur, reputare potest id, quod in
rem pupilli impendit, sic erit arbitrii eius, utrum compensare, an petere
velit sumtus,' and Dig. 16. 2. 7. i ' si rationem compensationis index non
babuerit, salva manet petitio.' The real meaning of the expression seems
to be that, though the defendant, if he wishes to set-off against the
plaintiff, must plead his claim, yet, immediately he has pleaded and
proved it, its operation relates back to the moment at which the two
claims first coexisted : ' si constat, pecuniam invicem deberi, ipso iure
pro soluto compensationem haberi oportet ex eo temp>ore, ex quo ab
utraque debetur, utique quoad concurrentes quantitates, eiusque solius,
quod amplius apud alterum est, usurae debentur, si modo earum petitio
subsistit' Cod. 4. 31. 4; from that moment no interest can be claimed,
except on the balance, Cod. ib., Dig. 16. 2. 11 ; and if the defendant for-'
gets to set-off, he can recover what he has paid in excess by condictio
indebiti, Dig. ib. 10. i ; 12. 6. 30. So far in fact as the two debts coex-
tended, each was extinguished : ' dedisse intellegendus est etiam is, qui
compensavit ' Dig. 50. 16. 76.

§ 81. For the origin and nature of actiones arbitrariae in the formulary

00

56a INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

pendentes appellamus, in quibus nisi arbitrio iudicis is cum quo
agitur actori satisfaciat, veluti rem restituat vel exhibeat vel
solvat vel ex noxali causa servum dedat, condemnari debeat.
sed istae actiones tarn in rem quam in personam inveniuntur.
in rem veluti Publiciana, Serviana de rebus coloni, quasi Ser-
viana, quae etiam hypothecaria vocatur: in personam veluti
quibus de eo agitur, quod aut metus causa aut dolo malo

period see Excursus X inf. Under Justinian they may best be described
as actions in which delivery or production of specific property, or specific
performance of an agreement, would be decreed, the defendant being
condemned in full damages only where execution of this decree was
impossible. Where the object of the action was restitutio!), it was
enforced by the strong arm of the law ; ' qui restituere iussus iudici non
psiret, contendens non posse se restituere, si quidem habeat rem, manu
militari officio iudicis ab eo possessio transfertur, et fructuum duntaxat
omnisque causae nomine condemnatio fit : si vero non potest restituere,
si quidem dolo fecit, quominus possit, is quantum adversariis in litem
sine ulla taxatione in infinitum iuraverit, damnandus est : si vero nee
potest restituere, nee dolo fecit quominus possit, non pluris, quam quanti
res est, id est, quanti adversarii interfuit, condemnandus est. Haec sen-
tentia generalis est, et ad onuiia, sive interdicta, sive actiones, et sive in
rem sive in personam sint, ex quibus ex arbitratu iudicis quid restituitur,
locum habet' Dig. 6. i. 68. It is not improbable indeed that this direct
intervention of the state to compel performance of the act demanded
occurred whenever such performance was possible (e. g. ' exhibere cogen-
dus est ' Dig. lo. 4. 8). Interdicts which were restitutoria and exhibitoria,
and the actions depositi, commodati, locati, and rei uxoriae, when their
object was restitution, belonged to this class of remedy, besides the in-
stances given in the text; their leading characteristic (apart from the
decree of specific restitution, production, or performance) being that, if
the defendant is unable through his own fault to do what is demanded of
him, the damages to be paid are fixed by the plaintiff on oath (iusiurandum
in litem).

Justinian's mention of actions demanding payment of money (solutio)
as arbitrariae seems to relate only to the actio de eo quod certo loco, etc,
for which see on Bk. iii. 15. 5. supr. For noxal actions see Tit. 8 inf.

The actio ad exhibendum (for which cf. Tit. 17. 3 inf.) was of a pre-
liminary nature, enabling a plaintiff who could not pursue his right
without the production of an object to enforce such production upon any
one who was able to make it : ' exhibere est facere in publico potestatem,
ut ei, qui agat, experiundi sit copia ' Dig. 10. 4. 2, ' sciendum est adversus
possessorem hac actione agendum non solum eum, qui civiliter, sed et
eum, qui naturaliter incumbat possessioni ' ib. 3. 15. The right to which
the action was subsidiary might be in personam, as where a plaintifif
wishes to bring a noxal action, but is not sure of the precise slave

Tit. 6J DE ACTIONIBUS. $6^

factum est^ item qua id, quod certo loco promissum est, petitur.
ad exhibendum quoque actio ex arbitrio iudicis pendet in
his enim actionibus et ceteris similibus permittitur iudici ex
bono et aequo secundum cuiusque ret de qua actum est naturam
aestimare, quemadmodum actori satisfieri oporteat.

Curare autem debet iudex, ut omnimodo, quantum pos-32
sibile ei sit, certae pecuniae vel rei sententiam ferat, etiam si
de incerta quantitate apud eum actum est.

Si quis agens in intentione sua plus complexus fuerit, quam 33
ad eum pertinet, causa cadebat, id est rem amittebat, nee
facile in integrum a praetore restituebatur, nisi minor erat
viginti quinque annis. huic enim sicut in aliis causis causa
cognita succurrebatur, si lapsus iuventute fuerat, ita et in hac

who committed the offence, Dig. ib. 3. 7 ; but usualJy it was in rem : e. g.
a legatee has a choice from several similar objects, which he wants to
see before be can choose, Dig. ib. 3. 6 ; the plaintifTs property is on the
land of another who will not allow him to enter and take it away, ib. 5.
4 ; or it is connected or mixed with a res aliena, and must be separated
before he can bring his real action, ib. 6 and 7 : see note on p. 523 supr.

§ 32. In the formulary period the iudex had no power to condemn the
defendant except to a money payment (Gains iv. 48) even in the actiones
arbitrariae ; the only case in which he could award property was that of
the iudicia divisoria. When formulae disappeared, the rule of the cog-
nitio extraordinaria was adopted (hence certae rei in the text) and the
iudex was enabled to decree a dare (transfer of ownership), a tradere (of
possession), a restituere or an exhibere : 'miramur quare iudex, qui prae-
positus est in praedicta causa, non omnimodo condemnationem in servum,
sed in aestimationem eius fecerit ' Cod. 7. 4. 17. i. The iudex was also as
a rule bound under Justinian to condemn the losing party to pay his
adversary's costs, Tit. 16. i in£

The words in the text (quantum possibile ei sit) are intended to except
those cases in which an independent arbitrium de aestimando, or in-
quiry to assess the damages, was thought necessary in order not to
postpone delivery of judgment in the main action, Cod. 7. 46. 2, Dig.
6. I. 76. I ; here there might be a condemnation, but the damages
which the defendant had to pay would be ascertained by subsequent
aestimatio.

§ 83. Under the system of formulae an overclaim (plus petitio) might be
made in either the intentio, the condemnatio, or the demonstratio. It could
occur in the intentio only where it was certa (e. g. si paret . . . quinqua-
ginta aureos dare oportere, when the defendant really owed a less sum) ;
and here its result was that the judge, finding the precise sum claimed
was not in fact owed, was bound to absolve the defendant, and the
plaintiffs right of action was thereby irrevocably gone, because the res

O o ii

564 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

causa succurri solitum erat. sane si tarn magna causa iusti
erroris interveniebat, ut etiam constantissimus quisque labi
posset, etiam maiori viginti quinque annis succurrebatur :
veluti si quis totum legatum petierit, post deinde prolati
fuerint codiciUi, quibus aut pars legati adempta sit aut
quibusdam aliis legata data sint, quae efficiebant, ut plus
petisse videretur petitor quam dodrantem, atque ideb lege
Falcidia legata minuebantur. Plus autem quattuor modis
petitur: re, tempore, loco, causa, re: veluti si quis pro
decern aureis qui ei debebantur viginti petierit, aut si is,
cuius ex parte res est, totam earn vel maiore ex parte suam
esse intenderit. Tempore : veluti si quis ante diem vel ante
condicionem petierit. qua ratione enim qui tardius solvit,
quam solvere deberet, minus solvere intellegitur, eadem ratione
qui praemature petit plus petere videtur. Loco plus petitur,
veluti cum quis id, quod certo loco sibi stipulatus est, alio loco
petit sine commemoratione illius loci, in quo sibi dari sti-
pulatus fuerit: verbi gratia si is, qui ita stipulatus fuerit
' Ephesi dare spondes ? ' Romae pure intendat dari sibi opor-

bad been in iudicium deducta, and either he could not sue again at all,
or, if he could, the defendant could repel him by the exceptio rei iudicaUe
or in iudicium deductae, Gaius iv. 106 : of. Cic. de invent, a. 19 * ita ius
civile habemus constitutum, ut causa cadat is, qui non, quemadmodum
oportet, egerit :' cf. Tit 13. 10 inf. If there was plus petitio in the con-
demnatio (e. g. si paret decern dare oportere, iudex viginti condemnato)
nobody could suffer but the defendant, who should have taken care that
the sum specified in the later did not exceed that in the earlier part of
the formula ; but he could get himself in integrum restitutus and the
formula rectified by the praetor at any time before judgment, Gaius iv.
57. Overclaim in the demonstratio injured no one (* et hoc est quod dicitur,
falsa demonstratione rem non perimi ' Gaius iv. 58) ; the mistake could
be corrected by the iudex without the necessity of any application to the
praetor. Even after the disappearance of formulae a plaintiff who made
an overclaim was punished with absolute loss of action on the ground
of calumnia, but this was remedied by the constitution of Zeno referred
to in the text, by which it was provided that though, if the plaintiff
brought his action prematurely (plus petitio tempore) he should pay the
defendant's costs hitherto incurred, and the latter be absolved, he might
sue again, but not until twice the interval had elapsed for which he would
properly have had to wait (Tit. 13. 10 inf.), and during that interval
should have no claim to interest, Cod. 3. 10. i. Justinian further enacted
that in plus petitio re the judge should condemn the defendant, so &r

Tit. 6.] DE ACTIONIBUS. ^6$

tere. ideo autem plus petere intellegitur, quia utilitatem,
quam habuit promissor, si Ephesi solveret, adimit ei pura
intentione : propter quam causam alio loco petenti arbitraria
actio proponitur, in qua scilicet ratio habetur utilitatis, quae
promissori competitura fuisset, si illo loco solveret. quae
utilitas plerumque in mercibus maxima invenitur, veluti vino
oleo frumento, quae per singulas regiones diversa habent
pretia : sed et pecuniae numeratae non in omnibus r^ionibus
sub isdem usuris fenerantur. si quis tamen Ephesi petat, id
est eo loco petat, quo ut sibi detur stipulatus est, pura actione
recte agit : idque etiam praetor monstrat, scilicet quia utilitas
solvendi salva est promissori. Huic autem, qui loco plus
petere intellegitur, proximus est is qui causa plus petit: ut
ecce si quis ita a te stipulatus sit *hominem Stichum aut
decem aureos dare spondes?* deinde alterutrum petat, ve-
luti hominem tantum aut decem tantum. ideo autem plus
petere intellegitur, quia in eo genere stipulationis promissoris
est electio, utrum pecuniam an hominem solvere malit; qui
igitur pecuniam tantum vel hominem tantum sibi dari oportere
intendit, eripit electionem adversario et eo modo suam quidem
meliorem condicionem facit, adversarii vero sui deteriorem.
qua de causa talis in ea re prodita est actio, ut quis intendat
hominem Stichum aut aureos decem sibi dari oportere, id est
ut eodem modo peteret, quo stipulatus est. praeterea si quis
generaliter hominem stipulatus sit et specialiter Stichum petat,

as he found him liable, and the plaintiff in three times the excess of fees
exacted from the other by the ' executor ' through the overclaim (§ 24 supr.).
Plus petitio loco could no longer prejudice the defendant, because the
judge was bound to apply the principles of the actio de eo quod certo
loco, and either condemn the defendant to discharge his obligation at
the place agreed upon, or make allowance for the loss and inconvenience
he suffered by having to pay elsewhere; and plus petitio causa was
equally harmless.

In integrum restitutio, to which there is a reference early in this
section, was an equitable remedy introduced by the praetor through
the edict, which in the formulary period had been perhaps the most
striking example of his extraordinaria cognitio. Its function had been
the rescission, in this or that concrete case, of rights and duties resulting
from the operation of the ordinary law, because under the special cir-
cumstances equity so required, exactly as equity in England gave relief,
for instance, against mistake, when law afforded no remedy whatever.

566 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

aut generaliter vinum stipulatus specialiter Campanutii petat,
aut generaliter purpuram stipulatus sit, deinde specialiter
Tyriam petat: plus petere intellegitur, quia electionem ad-
versario tolHt, cui stipulationis iure liberum fuit aliud solvere,
quam quod peteretur. quin etiam licet vilissimum sit quod
quis petat, nihilo minus plus petere intellegitur, quia saepe
accidit, ut promissori facilius sit illud solvere, quod maioris

And this rescission was effected by the direct and immediate action of
the magistrate ; it was an exercise of his imperium, not of his iurisdictio :
in integrum restitutio in its proper sense being thus distinguished from
analogous cases in which a restoration occurred either ipso iure (as in
postliminium) or by the remedial process of the ordinary law.

The conditions under which in integrum restitutio could be applied for
4 are as follow :

(i) The applicant must have suffered a prejudice (laesio) from the
operation of law, which may be lucrum cessans no less than damnum
incidens. Dig. 4. 4. 7- 6 ; 4. 6. 27, but which need not be strictly proprietary,
Dig. 4. 4-3-6; for examples see notes on §§ 4 and 5 supr., Bk. ii. 15. 5
supr., Gains iv. 57. On the principle *de minimis non curat lex' it
seems also to have been requisite that the laesio should not be merely
trivial.

(2) The mere existence of a laesio in itself is insufficient ; there must
also be a ground (iusta causa) upon which the application is based.
These are six in number: *integri restitutionem praetor tribuit ex his
causis quae per metum, dolum, et status permutationem, et iustum
errorem, et absentiam necessariam, et infirmitatem aetads gesta esse
dicuntur ' Paul. sent. rec. i. 7. 2 ; cf. Dig. 4. 1. 1.

The restitutio of a minor (i.e. person under twenty- five years of age)
was independent, if he were also impubes, of his guardian's auctoritas
having been given to the disposition against which he appealed. Cod. 2.
25. 2. 3 and 5 ; 2. 27. 4 and 5, except where it was payment to him of a
debt, Dig. 4. 4. 7. 2 ; and under exceptional cu-cumstances he could not
^ obtain restitutio at all, e.g. where he had represented himself as of full
age, Cod. 2. 43. 2 ; where the person against whom he claimed it was also
a minor. Dig. 4. 4. 11. 6 ; and where he had contracted a money loan at
his father's order. Dig. ib. 3. 4.

Upon any of the remaining five causae a person of full age could get
himself restitutus no less than a minor.

In integrum restitutio was not the only form of relief obtainable
where one had been induced to make a disposition by intimidation or
fraud. Dolus had always been a sufficient defence in a bonae fidei action,
and it was made pleadable (in the form of an exceptio) to actions stricti
iuris by Aquilius Gallus, B.a 65 (see p. 497 sup.), who also introduced
the actio doli. In B.C. 71a praetor named Octavius introduced the actio
and exceptio quod metus causa. Whether in integrum restitutio propter

Tit. 6.] DE ACTIONIBUS. 567

pretii est. Sed haec quidem antea in usu fuerant: postea
autem lex Zenoniana et nostra rem coartavit. et si quidem
tempore plus fuerit petitum, quid statui oportet, Zenonis
divae memoriae loquitur constitutio : sin autem quantitate vel
alio modo plus fuerit petitum, omne, si quid forte damnum ex

dolum and metum was older than these remedies, and was to a great
extent superseded by them, as Savigny contends, is uncertain; at any
rate it seems clear from Cic. de off. 3. 14 that restitutio doll causa was
unknown before the time of Callus Aquilius. It is, however, certain that
their concurrent existence narrowed the operation of the equitable relief
on these two causae.

An instance of restitutio propter errorem is supplied in the text above ;
the other cases of its application suggest the conclusion that it was
almost entirely confined to laesiones mcurred in the progress of an
.action, though examples of its occiurence in substantive law are found in
Dig. 42. 6. I. 17 ; 34. 9. 17.

Restitutio propter capitis deminutionem occurred only where the
capitis deminutio was minima : ^ pertinet hoc edictum ad eas capitis
deminutiones, quae salva civitate contingunt ; ceterum slve amissione
civitatis, sive libertatis amissione contingat capitis deminutio, cessabit
edictum ' Dig. 4. 5. 2. pr. For its application see Bk. iii. la 3 and notes
supr.

Persons who, while absent either rei publicae causa, or by reason of
justifiable fear, or in captivity with a public enemy, lost rights of
property or of action could obtain restitution ; and persons at home
could get themselves restituti against others who had obtained a pro-
prietary advantage (e.g. by usucapio, § 5 supr.) or release from an action
while abroad or imprisoned.

The edict upon this subject terminated with the so-called generalis
clausula : ' item si qua alia causa videbitur, in integrum restituam ' Dig.
4. 6. 1. 1 ; lb. 26. 9 ; words apparently intended to include all cases, other
than those ah^eady specified, in which the realization of a right was
prevented by obstacles of fact rather than of law.

(3) As a general rule, the case must be one in which the ordinary law
affords no relief : ' in causae cognitione etiam hoc versabitur, num forte
alia actio possit competere citra in integrum restitutio ; nam si communi
auxilio et mero iure munitus sit, non debet ei tribui extraordinarium
auxilium ' Dig. 4. 4. 16. pr. But occasionally restitutio was merely an
alternative, e.g. to the actio doli, quod metus causa, tutelae (Dig. 4. 4. 47.
l), and the bonae fidei actions. Cod. 2. 54. 3; 4. 44. 5; ib. la There
are also a number of other exceptions to its general application ; e. g. no
one could claim restitutio against penal laws, against a patron or ascend-
ant, or against his own dolus.

,(4) Restitutio must be applied for within a period of prescription fixed
originally at an annus utilis, and extended by Justinian to a quadriennium
continuum (note on § 5 supr.). It is disputed from what moment prescript

568 INSTITUTIONUM UBRI QUATTUOR. [Lib. IV.

hac causa acciderit ei, contra quern f)lus petitum fuerit, com-
missa tripli condemnatione, sicut supra diximus, puniatur.

34 Si minus in intentione complexus fuerit actor, quam ad eum
pertineret, veluti si, cum ei decern deberentur, quinque sibi
dari oportere intenderit, aut cum totus fundus eius esset,
partem dimidiam suam esse petierit, sine periculo agit: in
reliquum enim nihilo minus iudex adversarium in eodem

35 iudicio condemnat ex constitutione divae memoriae Zenonis.
Si quis aliud pro alio intenderit, nihil eum periclitari placet,
sed in eodem iudicio cognita veritate errorem suum corrigere
ei permittimus, veluti si is, qui hominem Stichum petere de-
beret, Erotem petierit, aut si quis ex testamento sibi dari
oportere intenderit, quod ex stipulatu debetur.

36 Sunt praeterea quaedam actiones, quibus non solidum quod
debetur nobis persequimur, sed modo solidum consequimur,
modo minus, ut ecce si in peculium filii servive agamus: nam si
non minus in peculio sit, quam persequimur, in solidum pater
dominusve condemnatur : si vero minus inveniatur, eatenus con-
demnat iudex, quatenus in peculio sit quemadmodum autem

87 peculium intellegi debeat, suo ordine proponemus. Item si de

tion began to run ; according to some this is (except in absentia and minor
aetas) the date of laesio ; according to others, the termination of the causa.

The procedure in the formulary period was extra ordinem. The
restitutio was granted only after a careful inquiry by the praetor, in
which both laesio and iusta causa had to be proved by the applicant ;
under Justinian the process was that of an ordinary action, the difference
in the remedy being no longer formal, but material only.

§ 34. In minus petitio, under the formulary system, the plaintiff could
sue for the residue in a subsequent action, though, if he attempted to do
this in the same year of praetorship, he would be defeated by the exceptio
litis dividuae, Gaius iv. 56, 122. Similarly, if, having several actions
against the same defendant, he brought one or some before one iudex,
but postponed the rest merely to annoy his opponent, he could within the
same praetorship be met by the exceptio litis residuae, Gaius loc. cit.
Zeno's enactment, which enabled the plaintiff to rectify his error in the
course of his original action, is in Cod. 3. 10. i. 3.

§ 86. Though the rule had been practically the same under the older
system, it was necessary then to commence a fresh action with a
corrected formula, Gaius iv. 55 : *primo vinculo tenentur, et mutare iUis
formulam non licet ' Seneca, cp. 1 17. 4-

§ 86. For the actio de peculio see Tit. 7. 4 and notes inf.

§ 87. In the cases mentioned in this and the two next sections the

Tit. 6.] DE ACTIONIBUS. 569

dote iudicio mulier agat, placet eatenus maritum condemnari
debere, quatenus facere possit, id est quatenus facultates eius
patiuntur. itaque si dotis quantitati concurrant facultates
eius, in solidum damnatur: si minus, in tantum quantum
facere potest propter retentionem quoque dotis repetitio
minuitur : nam ob impensas in res dotales factas marito re-
tentio concessa est, quia ipso iure necessariis sumptibus dos
minuitur, sicut ex latioribus digestorum libris cognoscere liceat.
Sed et si quis cum parente suo patronove agat, item si socius 38

defendant was said to have a beneficium competentiae, which was
pleaded in defence as an exceptio, the creditor being bound to spare him
enough of his property to live on, except in actions based on delict and
fraud : ' in condemnatione personanim, quae in id quod facere possunt
damnantur, non totum quod habent extorquendum est, sed et ipsorum
ratio habenda est, ne egeant ' Dig. 50. 17. 173; cf. Dig. 42. i. 19. i.
This privilege was accorded by the law on three grounds. On account
of the peculiar personal relation between the parties it belonged to
husband and wife against one another, to parents against children,
patrons against freedmen (§ 38 inf.), and to the father-in-law if sued by the
husband for a promised dos durante matrimonio. By reason of the
nature of the obligation upon which the action was based it was possessed
by the husband and his representatives when sued for the recovery of a
dos, by socii inter se, and by the promisor of a gift (§ 38 inf.). On account
of the personal position of the debtor it belonged to the insolvent who
had made a cessio bonorum (§ 40 inf.), to soldiers against all creditors
whatsoever, and to children who had been recently released from patria
potestas in respect of debts contracted while alieni iuris, unless by the
father's death they had come into substantial property. Finally, the
beneficium might be acquired by contract, Dig. 2. 14. 49.

When sued for the recovery of the dos at the termination of the
marriage by the wife, her heirs, or the paternal ascendant who had given
it, or during the marriage on account of mismanagement or insolvency,
the husband or his heirs or representatives could deduct impensae
necessariae, by the sum of which the value of the dos was held to have
tacitly (ipso iure) diminished. For impensae utiles as distinct from
necessariae the husband could advance a claim only by actio mandati or
negotiorum gestorum. Cod. 5. 13. 5 e. The old retentiones propter liberos,
propter mores, etc., described by Ulpian, reg. 6. 9-12, were obsolete in
the time of Justinian.

§ 88. If the societas was omnium bonorum, the partner against whom
the actio pro socio was brought could plead beneficium competentiae as a
matter of right ; in other cases, the praetor would grant it only after inves-
tigation : ^ quod autem de sociis dictum est, ut et hi in quantum facere
possint condemnentur, causa cognita se facturum praetor edicit ' Dig. 42.
I. 22. I : see note on p. 448 supr.

570 INSTITUTIONUM UBRI QUATTUOR. [Lib. lY.

cum socio iudicio societatis agat, non plus actor consequitur,
quam adversarius eius facere potest, idem est, si quis ex

39 donatione sua conveniatur. Compensationes quoque oppositae
plerumque efficiunt, ut minus quisque consequatur, quam ei
debeatur: namque ex bono et aequo, habita ratione eius,
quod invicem actorem ex eadem causa praestare oporteret,
in reliquum eum cum quo actum est condemnaret, sicut iam

40 dictum est. Eum quoque, qui creditoribus suis bonis cessit,
si postea aliquid adquisierit, quod idoneum emolumentum
habeat, ex integro in id quod facere potest creditores cum
eo experiuntur : inhumanum enim erat spoliatum fortunis suis
in solidum damnari.

VII.

QUOD CUM EO QUI IN ALIENA POTESTATE EST
NEGOTIUM GESTUM ESSE DICITUR.

Quia tamen superius mentionem habuimus de actione,
quae in peculium filiorum familias servorumque agitur : opus
est, ut de hac actione et de ceteris, quae eorundem nomine in
parentes dominosve dari solent, diligentius admoneamus.
et quia, sive cum servis negotium gestum sit sive cum his,
qui in potestate parentis sunt, fere eadem iura servantur, ne

§ 39. See notes on § 30 supr.

§ 40. For cessio bonorum see p. 391 supr.

Tit. VU. The rule of the civil law, already more than once alluded
to, was that in no case could any liability attach to a man upon the
contracts made by those in his power, whether slaves or children : ' melior
condicio nostra per servos fieri potest, deterior fieri non potest ' Dig. 50.
17- 133 > cf» Tit. 6. 10 supr. The manifest injustice of this in concrete
cases led to a praetorian change, by which one with whom a slave con*
traded, and who previously had no remedy against any one, was enabled,
under certain circumstances, to sue the master, or with whom a filiusfamilias
contracted could sue the father in preference to the son, against whom of
course he had always had his remedy. The extent to which the pater or
dominus was thus made answerable varied according to the circumstances
of the case. In some cases he became liable to the creditor in solidum,
as where he had, either expressly or by implication, directed or subse-
quently adopted the contract ; in others his obligation was not coexten-
sive with that of the son, as where he knew nothing of the transaction, and
had derived no personal advantage from it. Of these variations in the
superior's liability a full and precise account is given in this Title. Th«

Tit. 7.] QUOD CUMEO QUIINALIENA POTEST ATE, ETC. 571

verbosa fiat disputatio, dirigamus sermonem in personam servi
dominique, idem intellecturi de liberis quoque et parentibus,
quorum in potestate sunt, nam si quid in his proprie ob-
servetur, separatim ostendimus.

Si igitur iussu domini cum servo negotium gestum erit, in 1
solidum praetor adversus dominum actionem poUicetur, scilicet
quia qui ita contrahit fidem domini sequi videtur. Eadem 2
ratione praetor duas alias in solidum actiones poUicetur, qua-
rum altera exercitoria, altera institoria appellatur. exercitoria
tunc locum habet, cum quis servum suum magistrum navis
praeposuerit et quid cum eo eius rei gratia cui praepositus
erit contractum fuerit. ideo autem exercitoria vocatur, quia
exercitor appellatur is, ad quem cottidianus navis quaestus

six praetorian actions by which he could be made to discharge the obliga-
tion, and which are here discussed, are called by the commentators
actiones adiectitiae c[ualitatis (after Dig. 14. i. 5. i, cited in Excursus IX
supr. ; cf. Dig. 45. i. 91. 5 ^ filiusfamilias, qui iussu patris promisit ....
quasi accessionem intellegens eum qui iubeat '), because they are alterna-
tive to the remedy against the actual contractor, or give the creditor a
remedy where he had none at all by the civil law. The advantage of the
change was not all for the creditor, for it enabled men to freely employ
their children and slaves as agents in contracts generating bilateral obli-
gation, and so largely facilitated the business of every day life ; the wider
benefit of two of these actions in the same direction has already been
explained in the Excursus referred to.

The reference in the first line of the text is to Tit. 6. 8. 10 and 36 supr*
Slaves and children in power do not stand on precisely the same footing
in this matter (fere eadem iura servantur) ; see § 7 inf. and Bk. iii. 19. 6
supr.

9 L THe actio quod iussu lay whether the iussus was given to the slave
(Dig. 14. 5. 2 ; 15. 4. I. 2) or to the third party with whom he contracted,
Dig. 15. 4. I. I, Cod. 4. 26. 13, but only where the contract was made on
behalf or in the interest of the dominus or pater : ' quid si dominus fide
iusserit pro servo ? ait Marcellus, non teneri quod iussu, quasi extraneus
intervenit' Dig. 15. 4. i. 5 ; this, however, is disputed, some maintaining
exactly the opposite view, and others holding that it is immaterial whether
the slave or son makes the contract for himself or for the superior.
If the contract was in reality the master's own, and he used the slave
merely as an instrument, he could be sued by direct action upon it, as the
only true contractor. Dig. ib. 5. pr. Subsequent ratification had the same
effect as a precedent iussus : ' si ratum habuerit quis quod servus eius
gesserit vel filius, quod iussu actio in eos datur' ib. 1.6.

§ 2. The two actions described in this section were due to the in-
sufficiency of quod iussu, which was inapplicable without a specific

572, INSTITVTIONUM LIBRI QUATTUOR. [Lib. IV.

pertinet institoria tunc locum habet, cum quis tabernae
forte aut cuilibet n^otiationi servum praeposuerit et quid
cum eo eius rei causa, cui praepositus erit, contractum fuerit.
ideo autem institoria appellatur, quia qui negotiationibus prae-
ponuntur institores vocantur. Istas tamen duas actiones praetor
reddit et si liberum quis hominem aut alienum servum navi
aut tabernae aut cuilibet negotiationi praeposuerit, scilicet
3 quia eadem aequitatis ratio etiam eo casu interveniebat In-
troduxit et aliam actionem praetor, quae tributoria vocatur.
namque si servus in peculiari merce sciente domino negotietur
et quid cum eo eius rei causa contractum erit, ita praetor ius
dicit, ut, quidquid in his mercibus erit quodque inde receptum
erit, id inter dominum, si quid ei debebitur, et ceteros cre-
ditores pro rata portione distribuatur. et quia ipsi domino
distributionem permittit, si quis ex creditoribus queratur,
quasi minus ei tributum sit, quam oportuerit, banc ei ac-

authorization, or where the agent was an extranea persona. The appoint-
ment of filiifamilias or slaves, especially the latter, to manage some
branch of trade or business (for examples see Mr. Poste's note on Gaius iv.
71), or to command a merchant vessel was extremely common at Rome,
and unless the principal had been liable on contracts made by such
agents within the scope of their commission, more particularly in the
case of slaves, business would have been much hampered : ' cum inter-
dum ignari, cuius sint condicionis et quales, cum magistris propter
navigandi necessitatem contrahatnus ' Dig. 14. i. i. pr. It would seem
that both of these actions were originally designed to render only
masters and fathers liable, and were subsequently extended to cases
where the agent was an extranea persona ; Gaius iv. 71.

§8. The actio tributoria could come into application only where
the slave (or filiusfamilias) who traded with a merx peculiaris sciente
domino (or patre) found himself embarrassed and unable to satisfy his
trade creditors in full ; here the latter could demand a distribution
among themselves of that portion of the peculium which had been em-
barked in the business in the ratio of their several claims. The division
was made by the dominus, who was treated as an ordinary creditor, and
therefore could not deduct debts owing to himself in full, though he had
the privilege of paying all his own claims pro rata, whether arising out of
the business or not. Dig. 14. 4. 5. 6 and 7 ; the actio tributoria lay
against the dominus at the suit of any creditor who thought himself un-
fairly treated. If the slave had his peculium engag^l in different
businesses, they were kept apart, the creditors in each being entitled to
satisfaction only out of the capital embarked in that one upon which
these debts arose, Dig. ib. 5. 15. 16. Any creditor who got his debts

Tit. 7.] QUOD CUMEO QU UN ALIEN A POTEST ATE^ETC. 573

tionem accommodat, quae tributoria appellatur. Praeterea 4
introducta est actio de peculio deque eo, quod in rem domini
versum erit, ut, quamvis sine voluntate domini negotium
gestum erit, tamen sive quid in rem eius versum fuerit, id
totum praestare debeat, sive quid non sit in rem eius versum,
id eatenus praestare debeat, quatenus peculium patitur. In
rem autem domini versum intellegitur, quidquid necessario
in rem eius impenderit servus, veluti si mutuatus pecuniam
creditoribus eius solvent aut aedificia ruentia fulserit aut
familiae frumentum emerit vel etiam fundum aut quamlibet
aliam rem necessariam mercatus erit. Itaque si ex decem ut
puta aureis, quos servus tuus a Titio mutuos accepit, creditori
tuo quinque aureos solverit, reliquos vero quinque quolibet
modo consumpserit, pro quinque quidem in solidum damnari
debes, pro ceteris vero quinque eatenus, quatenus in peculio
sit : ex quo scilicet apparet, si toti decem aurei in rem tuam
versi fuerint, totos decem aureos Titium consequi posse, licet
enim una est actio, qua de peculio deque eo quod in rem
domini versum sit agitur, tamen duas habet condemnationes.
itaque index, apud quern de ea actione agitur, ante dispicere
solet, an in rem domini versum sit, nee aliter ad peculii
aestimationem transit, quam si aut nihil in rem domini versum
intell^atur aut non totum. Cum autem quaeritur, quantum
in peculio sit, ante deducitur, quidquid servus domino quive
in potestate eius sit debet, et quod superest, id solum peculium
intellegitur. aliquando tamen id, quod ei debet servus, qui in

paid in full while the solvency of the affair was unsuspected had to bind
himself to refund in case any others should present their claims : ' non
enim haec actio, sicut de peculio, occupantis meliorem condicionem facit,
sed aequalem condicionem quandoque agentium ' Dig. ib. 6.

§ 4. Hitherto we have had to consider only contracts made by a slave
with his master's knowledge or even by his express authority; upon
which, for that very reason, the master was held liable in solidum, or at
any rate was compellable to pay up to a certain limit, without his own
claims enjoying any priority over those of ordinary trade creditors. This
section deals with his liability on most of the slave's other contracts —
those which he made without the master's knowledge, or even against
his orders (' edamsi prohibuerit contrahi cum servo dominus, erit in eum
de peculio actio' Dig. 15. i. 29. i), but not upon obligations arising from
delict (Dig. ib. 3. 12), or from contracts which were merely gifts to the
pther party, Dig. 39. 5. 7, or from those which a filiusfamilias made on the

574 INSTITUTIONUM UBRI QUATTUOR. [Lib. IV.

potestate domini sit, non deducitur ex peculio, veluti si is in
huius ipsius peculio sit. quod eo pertinet, ut, si quid vicario
suo servus debeat, id ex peculio eius non deducatur.
5 Ceterum dubium non est, quin is quoque, qui iussu domini
contraxerit cuique institoria vel exercitoria actio competit,
de peculio deque eo, quod in rem domini versum est, agere
possit : sed erit stultissimus, si omissa actione, qua facillime
solidum ex contractu consequi possit, se ad difficultatem
perducat probandi in rem domini versum esse, vel habere

strength of peculium castrense or quasi-castrense, Dig. 49. 17. 18. 5.
Here the creditor is enabled to sue the dominus by the actio de peculio et
in rem verso, in which two questions usually lie for the judge's considera-
tion ; (i) has the master himself derived any material advantage from the
contract in question ? No stress can here be laid on the language of the
text above, which suggests that the dominus was liable only if the ex-
penditure of the slave upon his affairs was necessary (necessario . . . rem
necessariam) ; in Dig. 15. 3. 3. 2 and 4; ib. 5. pr. and 2 expenditure
which is utilis, and in 3. 4 of the same Title an outlay which merely ^ ad
voluptatem domini spectat * is said to be recoverable by de in rem verso ;
and in fact this action lay wherever actio mandati or negotiorum
gestorum would lie : ' et regulariter dicimus totiens de in rem verso esse
actionem, quibus casibus procurator mandati, vel qui negotia gessit, nego-
tiorum gestorum haberet actionem, quotiensque aliquid consumsit servus,
ut aut meliorem rem dominus habuerit, aut non deteriorem' Dig. 15. 3. 3.
2. If in rem versio in this sense could be established, the master's own
means were liable pro tanto ; and the advantage which he had derived
might have been so great that the creditor might conceivably obtain
full payment in this manner, as e. g. where the slave had borrowed 50/.,
and spent the whole of it in paying his master's debts. But (2) if the
master has derived no material benefit from the slave's contract, or at
least not enough to make him liable to the creditor in solidum, the judge
has to inquire into the amount of the slave's peculium (deducting the
master's own claims against it), and to condemn the dominus to pay the
creditor from it what is due to him, so far as it extends at the date of the
condemnation. Dig. 15. i. 30. pr. The master's liability to de peculio
lasted for an annus utilis after the slave was alienated or manumitted,
Dig. 15. 2. I. The reason why the dominus here enjoyed the privilege,
which he did not possess under the circumstances described in § 3 supr.,
of paying his own claims against the slave from the peculium in full, was
the fact that here the contract had in no way been sanctioned by him.

For vicarii servi see on Bk. ii. 20. 17 supr. * Id, quod ipsis (sc vicariis)
debet ordinarius servus, non deducetur de peculio ordinarii servi, quia
peculium eorum in peculio ipsius est : ' cf. Theophilus, wa 11^ ro avr^
irp6<rwrov €vp€0^ dvo ivavria iroiowy xal av^v koi airofuiovv t6 peculium.

§ 6. An advantage of de peculio over tributoria has been already

Tit.?.] QUOD CUMEO QUI IN ALIEN A POT EST ATE, ETC. 575

servum pecuUum et tantum habere, ut solidum sibi solvi
possit. Is quoque, cui tributoria actio competit, aeque de
peculio et in rem verso agere potest : sed sane huic modo
tributoria expedit agere, modo de peculio et in rem verso,
tributoria ideo expedit agere, quia in ea domini condicio
praecipua non est, id est quod domino debetur non deducitur,
sed eiusdem iuris est dominus, cuius et ceteri creditores: at
in actione de peculio ante dedudtur quod domino debetur et
in id quod reliquum est creditor! dominus condemnatur.
rursus de peculio ideo expedit agere, quod in hac actione
totius peculii ratio habetur, at in tributoria eius tantum, quod
negotiatur, et potest quisque tertia forte parte peculii aut
quarta vel etiam minima negotiari, maiorem autem partem
in praediis et mancipiis aut fenebri pecunia habere, prout
ergo expedit, ita quisque vel banc actionem vel illam eligere
debet : certe qui potest probare in rem domini versum esse,
de in rem verso agere debet. Quae diximus de servo et6
domino, eadem intellegimus et de filio et filia aut nepote
et nepte, patre avove cuius in potestate sunt Illud proprie 7
servatur in eorum persona, quod senatus consultum Mace-
donianum prohibuit mutuas pecunias dari eis, qui in parentis
erunt potestate: et ei qui crediderit denegatur actio tam
adversus ipsum filium filiamve nepotem neptemve, sive adhuc
in potestate sunt, sive morte parentis vel emancipatione suae
potestatis esse coeperint, quam adversus patrem avumve, sive

pointed out in the passage cited at the end of note on § 3 supr. Gains
(iv. 74) thinks the former remedy as a rule preferable to the latter. As
soon as the action selected had reached litis contestatio, the other was
extinguished on account of the identity of the obligation which they lay
to enforce. Dig. 14. 4. 9. i.

§ 6. But the filiusfiEunilias, unlike the slave, could be sued in person on
his own contracts ; for the effect of judgment recovered against him see
on Tit. 5. 2 supr. Sometimes too a man was liable on a contract when -
made by his son, but not when made by his slave : ' sed si filius fideiussor
vel quasi interventor acceptus sit, an de peculio patrem obligat quaeritur.
£t est vera Sabini et Cassii sententia existimantium semper obligari
patrem de peculio, et distare in hoc a servo' Dig. 15. i. 3. 9.

§ 7. The last two lines of this section lend some colour to the story re-
lated by Theophilus, that the SC. Macedonianum, which was passed in the
time of either Claudius or Vespasian, derived its name from one Macedo
who committed the crime of parricide in order to relieve himself from his

576 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

habeat eos adhuc in potestate sive emancipaverit. quae ideo
senatus prospexit, quia saepe onerati acre alieno creditarum
pecuniarum, quas in luxuriam consumebant, vitae parentium
8 insidiabantur. Illud in summa admonendi sumus id, quod
iussu patris dominive contractum fuerit qubdque in rem eius

pecuniary difficulties ; cf. p. 44 supr. The enactment related to no contracts
except loans of money, and to these it applied even if veiled beneath
some transaction ostensibly of a different nature ; ' sed si fraus sit senatus
consulto adhibita, puta frumento vel vino vel oleo mutuo dato, ut his
distractis fructibus uteretur pecunia, subveniendum est filiofamilias ' Dig.
14. 6. 7. 3 ; and the age or rank of the filius by whom the money was
borrowed was immaterial : ' in filiofamilias nihil dignitas facit quominus
senatus consultum Macedonianum locum habeat : nam etiamsi consul
sit vel cuiusvis dignitatis, senatus consulto locus est' Dig. ib. I. 3. The
effect of the enactment was not to avoid the loan (so that it is weaker in
its operation than the SC. Velleianum, p. 430 supr.), but simply to refuse an
action for its recovery, or, if an action were in fact granted by the praetor
because the facts were doubtful, to enable the defendant, if he could
prove his title to the benefit of the law, to repel the plaintiff by excepdo
SC^. Macedonian!. Thus the obligation to repay the money subsisted
naturaliter, so that condicdo indebiti was excluded, though if the filius
paid with money of his father's, the latter could recover it by vindicado
so long as the creditor still had it in his hands.

The senatusconsult, however, had no application in the following
cases. The filiusfamilias himself was liable (i) if he had a peculium
castrense or quasi-castrense, Dig. 14. 6. 2 ; (2) if after becoming sui iuris
he ratified the contract (Cod. 4. 28. 2) either expressly or by implication ;
e. g. by repaying part of the loan. And either the son could be sued by
direct action, or the father by actio adiectitiae qualitatis, (i) if the lender
had reason for believing the filiusfamilias to be sui iuris. Dig. 14. 6. 3. pr.
and I. (2) If and so far as the loan was in rem patris versum, Dig. ib. 7.
12-14. (3) If the paterfamilias consented to the transaction, Cod. 4. 28.
2. Consent might be inferred from conduct, such as standing by and
allowing the money to be lent, Dig. ib. 12 and 16, or his making the son
his institor, or allowing him to trade with a peculium profectitium. Sub-
sequent ratification by the pater, express or implied, had the same effect,
Cod. 4. 28. 7. pr. (4) If the loan was contracted to pay a creditor against
whom the senatusconsult could not be pleaded, Dig. ib. 7. 14. (5) If the
son at the time of borrowing the money was a soldier, Cod. 4. 28. 7. i.
(6) If there was no genuine loan owing to the lender's defective capacity
of alienation, as where he was a pupillus or alieni iuris. Dig. ib. 3. 2. If
the creditor was a minor, he could get himself in integrum restitutus in
spite of the senatusconsult, Dig. 4. 4. 11. 7. The exceptio SC^ Macedo-
niani could be pleaded also by the filiusfamilias' surety, if the latter had a
ius regressus against him, Dig. 14. 6. 9. 3.

§ 8. So too it is said in Dig. 12. i. 29 ; 14. 3. 17. 4 and 5, that a direct

Tit. 8.] DE NOXALIBUS ACTIONIBUS. 577

versum fuerit, directo quoque posse a patre dominove condici,
tamquam si principaliter cum ipso n^otium gestum esset.
ei quoque, qui vel exercitoria vel institoria actione tenetur,
directo posse condici placet, quia huius quoque iussu con-
tractum intellegitur.

VIII.

DE NOXALIBUS ACTIONIBUS.

Ex maleficiis servorum, veluti si furtum fecerint aut bona
rapuerint aut damnum dederint aut iniuriam commiserint,
noxales actiones proditae sunt, quibus domino damnato per-
mittitur aut litis aestimationem sufferre aut hominem noxae

condictio will lie against the dominus in lieu of actio institoria. It is, ,
however, not a necessary inference from such passages that the civil law
modified jts own maxim, stated in the first note on this Title, though
this is the explanation of Schrader, who says ' forsan civiies actiones,
olim paucis casibus datae, postea demum ita creverunt, ut eundem fere
ambitum, quern honorariae statim ab initio occupabant, tenerent.' But,
as Savigny remarks (Oblig. § 54), this makes it difficult to understand
why the actiones adiectitiae qualitatis should be described in the Corpus
iuris as not only still useful but indispensable ; and Savigny himself,
noticing that it is only condictio (and not actiones civiies in general)
which is spoken of as alternative to the praetorian remedies, limits its -^
application to cases where the slave or filiusfJEunilias had borrowed money
with the superior's consent, or spent it, when borrowed, in his interest.
This conjecture is supported by the fact that in the text above the con^
currence of condictio with the actiones adiectitiae qualitatis is generally
affirmed, with the exception of de peculio ; and (as we have just seen) if
a filiusfamilias borrowed money, both condictio and de peculio were
barred by the SC. Macedonianum, Cod. 4. 28. 6, Dig. 14. 6. 7. 10, which,
however, did not exclude institoria and the rest. Another view is that
the ground of the condictio was not the slave's or filiusfamilias' contract,
but the simple fact that the superior had been enriched at the cost of the
other contracting party.

Tit VIII. If a slave committed a delict by his master's orders, the
latter alone was answerable : ' servus nil deliquit qui domino iubenti ob-
temperavit ; ' and even in other cases, if the master suspected and could
have prevented the wrong, the injured person had his choice between a
direct and a noxal action. Dig. 9. 4. 2-5. Otherwise the slave only was
directly liable, and if manumitted could be sued, § 5 inf.. Dig. ib. 6, unless
it was against his own master that the delict had been committed, § 6 inf.
While, however, he remained a slave no action could be brought against
him, and accordingly the master could be sued on his account, though,

pp

578 INSTITUTIONUM LIBRI QUATTUOR. [Ub. IV.

1 dedere. Noxa autem est corpus quod nocuit, id est seivus :
noxia ipsum maleficium, veluti furtum damnum rapina iniuria.

2 Summa autem ratione permissum est noxae deditione de-
fungi : namque erat iniquum nequitiam eorum ultra ipsonim

3 corpora dominis damnosam esse. Dominus noxali iudicio
servi sui nomine conventus servum actori noxae dedendo
liberatur. nee minus perpetUum eius dominium a domino
transfertur: si autem damnum ei cui deditus est resarcierit
quaesita pecunia, auxilio praetoris invito domino manumit-

as he was not bound to defend, he would probably prefer to abandon him
to the plaintiff if the proofs were dear. If he defended the action, it was
called noxalis because the defendant had the option, if the guilt of the
slave was proved, of surrendering him to the plaintiff in lieu of paying the
damages assessed : * praetor ait . . . si servus insciente domino fecisse
dicetur, in iudicio adiciam '' aut noxam dedere "' Dig. 9. 3. i. pr. Noxal
actions are thus not a class of remedies apart by themselves, but only
ordinary actions on a delictual or quasi-delictual obligation (Dig. loc cit.),
in which the defendant, being sued on a wrong not of his own commission,
is allowed by special provision (§ 4 inf.) a privilege which, had the offence
been his own, he would not have enjoyed. In principle, though not in
form, they are arbitrariae (Tit. 6. 31 supr.) ; the noxae deditio is not made
in accordance with the judge's arbitrium, but the defendant is condemned
in the alternative, Tit 17. i inf. If the slave died before litis contestatio
in the action, the master's liability ended, even though his death was un-
known. Dig. 9. 4. 39. 4 ; ib. 42. i : by his death during the action the
master's liability in damages became absolute.

It has been conjectured that noxal actions were originally the expres-
sion of an absolute claim to have the offender delivered up for the exercise
of private vengeance, whether his offence were delictual or merely breach
of contract. The surrender of Postumius to the Samnites by the Romans
with all the forms of noxae deditio (Livy ix. 10) was made as atonement
for non-observance of the treaty which he had concluded with them, and
from which the Romans wished to release themselves — ut populus re-
ligione solvatur. Under Roman municipal law non-fulfilment of a promise
made by sponsio entailed, in the end, quasi-slavery (manus iniectio);
and the idea was consistently applied by them in international relations ;
cf. Ihering, Geist des r. Rechts i. p. 131 ; Mr. O. W. Holmes' Common
Law pp. 8-12, and Mr. Poste's note on Gaius iv. 81,

§ 8. The rule that if the surrendered slave subsequently contrived to
pay the damages he could demand his manumission, appears to have
originally held only where the deditus was a child in power ; ' per homi-
nem liberum noxiae deditum si tantum adquisitum sit, quantum dam-
num dedit, manumittere cogendus est a praetore qui noxa deditum
accepit, sed fiduciae iudicio non tenetur ' Papinian, Coll. 2. 3.

Tit. 8.] DE NOXALIBUS ACTIONIBUS. 579

tetur. Sunt autem constitutae noxales actiones aut legibus 4
aut edicto praetoris : legibus veluti furti lege duodecim tabu-
larum, damni iniuriae lege Aquilia : edicto praetoris veluti iniu-
riarum et vi bonorum raptorum. Omnis autem noxalis actio 5
caput sequitur. nam si servus tuus noxiam commiserit, quamdiu
in tua potestate sit, tecum est actio : si in alterius potestatem
pervenerit, cum illo incipit actio esse, aut si manumissus fuerit,
directo ipse tenetur et extinguitur noxae deditio. ex diverso
quoque directa actio noxalis esse incipit : nam si liber homo
noxiam commiserit et is servus tuus esse coeperit (quod casibus
quibusdam eflici primo libro tradidimus), incipit tecum esse
noxalis actio, quae ante directa fuisset. Si servus domino 6
noxiam commiserit, actio nulla nascitur: namque inter do-
minum et eum qui in eius potestate est nulla obligatio nasci
potest, ideoque et si in alienam potestatem servus pervenerit
aut manumissus fuerit, neque cum ipso neque cum eo, cuius
nunc in potestate sit, agi potest, unde si alienus servus
noxiam tibi commiserit et is postea in potestate tua esse
coeperit, intercidit actio, quia in eum casum deducta sit, in
quo consistere non potuit: ideoque licet exierit de tua po-
testate, agere non potes, quemadmodum si dominus in servum

§ 4. The four delicts are mentioned only exempli gratia, as appears
from veluti . . . veluti : a noxal action was given upon quasi-delictual ob«
ligations as well. Dig. 47. i. i. 2 ; 47. 7. 7. 5.

§ 5. For the modes in which a free man could become a slave see
Bk. i. 3. 4, and notes supr.

§ 6. The first few lines of this section are open to misconception. It
was not merely that no action lay upon a delict committed by a slave
against his dominus, but it gave rise to no obligation whatever— doubtless
because the master could get him punished by an appeal to the extra-
ordinaria cognitio of the praetor, or even inflict the penalty in person if
the offence were a light one. Nor is it true that ' inter dominum et eum
qui in potestate eius est nulla obligatio nasci potest : ' between master
and slave, pater and filiusfamilias, there could be naturalis but not dvilis.
obligatio. Tit. 7. 3 supr.. Dig. 12. 6. 64 ; 44. 7- 14«

The Proculians had maintained that the action for the delict of a
slave was not extinguished by his coming under the power of the injured
person, but only suspended, *cum vero exierit de mea potestate, tunc
eam resuscitari ' Gains iv. 7^,

For applications of the rule ' quae in eam causam pervenerunt a qua
incipere non poterant pro non scriptis habentur' cf. Bk. ii. 20. 14; iii.
19. 2 supr., and Dig. 5. i. 11 ; 8. i. il ; 9. 2. 16 ; 34. 8. 3. 2,

58o INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

suum aliquid commiserit, nee si manumissus vel alienatus
fuerit servus, ullam actionem contra dominum habere potest.
7 Sed veteres quidem haec et in filiis familias masculis et feminis
admiserunt. nova autem hominum conversatio huiusraodi as-
peritatem recte respuendam esse existimavit et ab usu com-
muni haec penitus recessit : quis enim patitur filium suum et
maxime filiam in noxam alii dare, ut paene per corpus pater
magis quam Alius periclitetur, cum in filiabus etiam pudicitiae
favor hoc bene excludit ? et ideo placuit in servos tantummodo
noxales actiones esse proponendas, cum apud veteres legum
commentatores invenimus saepius dictum ipsos filios familias
pro suis delictis posse conveniri.

IX.

SI QUADRUPES PAUPERIEM FECISSE DICITUR.

Animalium nomine, quae ratione carent, si quidem lascivia
aut fervore aut feritate pauperlem fecerint, noxalis actio lege
duodecim tabularum prodita est (quae animalia si noxae de-
dantur, proficiunt reo ad liberationem, quia ita lex duodecim
tabularum scripta est) : puta si equus calcitrosus calce percus-
serit aut bos comu petere solitus petierit. haec autem actio in
his, quae contra naturam moventur, locum habet : ceterum si
genitalis sit feritas, cessat. Denique si ursus fugit a domino
et sic nocuit, non potest quondam dominus conveniri, quia
desinit dominus esse, ubi fera evasit. pauperies autem est
damnum sine iniuria facientis datum : nee enim {>otest animal

§ 7. The noxal surrender of filiifamilias (Gaius iv. 74. 79 speaks only
of sons) was effected by mancipatio ; diey stood in mancipio to the sur-
renderee (note on Bk. i. 8 supr.), the Sabinians holding that one sale was
sufficient for this purpose, ' crediderunt enim tres lege duodecim tabu-
larum ad voluntarias mancipationes pertinere ' Gaius iv. 79.

Among the ' veteres legum commentatores ' are Gaius himself. Dig.
44* 7« 39 ; Pomponius, Dig. 9. 4. 33 ; Julianus, ib. 34, and Ulpian, Dig. 5.
I* 57 ; 9* 3- 1- 7 ; 9* 4- 35* For Justinian's affectation of legal conservatism
cf. Bk. ii. 14. pr., ii. 20. 34 supr. On the whole subject of noxal surrender
see a note in Mr. Roby's edition of Dig. 7. i. pp. 132-137.

Tit. IX. The conditions under which the noxal actio de pauperie lay
are accurately stated in this Title. By the Twelve Tables the animal
must be four-footed (Dig. 9. i. 1.2), but by construction the remedy was
extended : ' haec actio utilis competit, si non quadrupes sed aliud animal

rit.9.] SI QUADRUPES PAUPERIEMFECISSE DICITUR. 581

iniuriam fecisse did, quod sensu caret, haec quod ad noxalem
actionem pertinet.

Ceterum sciendum est acdilicio edicto prohiberi nos canem 1
verrem aprum ursum leonem ibi habere, qua vulgo iter fit:
et si adversus ea factum erit et nocitum homini libero esse
dicetur, quod bonum et aequum iudici videtur, tanti dominus
condemnetur, cete&rum rerum, quanti damnum datum sit,

pauperiem fecit ' Dig. ib. 4. If the damage was done under provocation,
the noxal action did not lie, but the person who was its indirect cause
was liable: *et generaliter haec actio locum habet, quotiens contra
naturam fera mota pauperiem dedit. Ideoque si equus dolore concitatus
calce petierit, cessare istam actionem, sed eum, qui equum percusserit
aut vulneraverit, in factum . . . teneri : at si cum equum permulsisset quis
vel palpatus esset, calce eum percusserit, erit actioni locus' Dig. ib. i. 7.
Damage done by an animal which fell within the rule was treated exactly
like a delict committed by a slave : ' et cum etiam in quadrupedibus noxa
caput sequitur, adversus dominum haec actio datur, non cuius fuerit
quadnipes, cum noceret, sed cuius nunc est. Plane si ante litem con-
testatam decesserit animal, extincta erit actio ' Dig. ib. i. 12 and 13. So
too if the animal died naturally or by accident, the owner's liability was
extinguished, Dig. ib. 16.

The illustration of the bear might lead one to suppose that no noxal
action lay where the animal which did the damage was ferae naturae. But
this assumption is contradicted in the text below (§ i ' praeter has autem ^
aedilicias actiones et de pauperie locum habet ') ; and though many are
for rejecting this as bad law, it seems better to say that the actio de
pauperie was available at any rate in the case of an animal which, though
by birth ferae naturae, no longer enjoyed its natural liberty, but was in
some degree tamed or domesticated, and so in doing injury might be said
to be acting ' against its nature.'

The only case in which the owner of a domestic beast was liable for
damage done secundum naturam suam was where grazing animals strayed ^i
and pastured on another's land (when an action lay under the Twelve
Tables), or fed on mast which fell on their owner's land from a neigh-
bour's trees : ' si glans ex arbore tua in meum fundum cadat, eamque ego
immisso pecore depascam, Aristo scribit, non sibi occurrere legitimam
actionem, qua experiri possis, nam neque ex lege duodecim tabularum de
pastu pecoris, quia non in tuo pascitur, neque de pauperie, neque damni
iniuriae agi posse : in factum itaque erit agendum' Dig. 19. 5. 14. 3.

§ 1. The public roads were under the special charge of the aediles, Dig.
43. 10. The penalty prescribed in the edict for the death of a freeman
was 200 solidi ; for injury other than death a sum which was left to the ^
discretion of the judge ; for all other damage duplum. The action under
this edict seems to have been popularis.

Two or more actions are said to concur when one and the same ^

58a INSTITUTION UM LIBRI QUATTUOR. [Lfl>. IV.

dupli. praeter has autem aedilicias actiones et de pauperie
locum habebit: numquam enim actiones praesertim poenales
de eadem re concurrentes alia aliam consumit.

material claim can be pursued wholly or in part by two or more dis-
tinct remedies. Examples may be found in Tit. 6. 14, Tit. 7. 5 supr.» in
cases of passive correal and solidary obligation, and in the violation of
different rights of the same person by one single act, as where a commo-
datarius damages the res commodata, thereby exposing himself to actio
commodati and an action under the lex Aquilia, Dig. 13. 6. 7. i. The
principle which governs such cases is contained in the maxim 'bona
fides non patitur, ut bis idem exigatur* Dig. 50. 17. 57. Hence, if one
action is brought by which the claim is fully satisfied, the right to bring
the other is extinguished ; but if the plaintiff first sues by the one which
gives him a less satisfaction than he could have obtained by the other,
the other can yet be brought for the difference ; * si ex eodem facto duae
competant actiones, postea iudicis potius partes esse, ut quo plus sit in
reliqua actione, id actor ferat, si tantundem aut minus, nil consequatur *
Dig. 44. 7. 41. I.

In the application of these principles to penal actions, of which the
text above more particularly speaks, a distinction must be drawn. Some-
times when more rights than one are violated by one and the same
unlawful act, this act can be analysed, in the eye of the law, into as
many separate acts as there are rights violated ; and in such a case the
penal actions which lie on these several wrongs exist quite independently
of one another, and can be separately brought in solidum. Illustrations
may be found in a single speech which slanders two or more persons,
Dig. 47. 10. 41 ; in the theft of a slave's clothes, through which he dies of
exposure. Dig. 19. 5. 14. i, where the actiones furti and damni iniuria
each lie, and the full penalty can be recovered on each ; and in Tit i. 8
supr., where the master can bring both actio furti and actio servi cor-
rupti, 'nee sufficiet, alterutra actione egisse, quia altera alterum non
minuit' Dig. 11. 3. 11. 2.

But one and the same unlawful act may be ground for two or more
penal actions in a rather different manner ; that is to say, each, or at any
rate one, of them requires the whole act to support it. E.g. for secretly
cutting down another's trees one is liable under both the Twelve Tables
(de arboribus furtim caesis) and the lex Aquilia ; and so too the same
act will often support an action on either theft or robbery. To admit
both actions in such cases would be to punish at least part of the un-
lawful act upon which they are based twice over ; and the actual practice
was to allow the person wronged, if he first brought the action by which
he could recover least, to subsequently bring the second for the difference.
Dig. 44. 7. 41. 1 cited supr. The application of this principle to penal
actions is clearly shown by the following passages : ' qui servum alienum
iniuriose verbierat, ex uno facto incidit et in Aquiliam et in actionem
iniuriarum : iniuria enim ex adfectu fit, damnum ex culpa, et ideo pos-

Tit. 10.] DE HIS PER QUOS AGERE POSSUMUS. 583

DE HIS PER QUOS AGERE POSSUMUS.

Nunc admonendi sumus agere posse quemlibet aut suo
nomine aut alieno. alieno veluti procuratorio tutorio cura«
torio, cum olinh in usu fuisset alterius nomine agere non posse
nisi pro populo, pro libertate, pro tutela. praeterea lege
Hostilia perQiissum est furti agere eorum nomine, qui apud
hostes essent aut rei publicae causa abessent quive in eorum
cuius tutela essent. et quia hoc non minimam incommodi-
tatem habebat, quod alieno nomine neque agere neque excl-»
pere actionem licebat, coeperunt homines per procuratores

sunt utrae competere : sed quidam altera electa alteram consumi : alii
per legis Aquiliae actionem iniuriarum consumi, quoniam desiit bonum et
aequum esse condemnari eum, qui aestimationem praestitit, sed si ante
iniuriarum actum esset, teneri eum ex lege Aquilia. Sed et haec sententia
per praetorem inhibenda est, nisi in id, quod amplius ex lege Aquilia
competit, agatur: rationabilius itaque est, eam admitti sententiam, ut
liceat ei quam voluerit actionem prius exercere, quod autem amplius in
altera est, etiam hoc exsequi' Dig. 44. 7. 34. pr.j *si furtim arbores
caesae sint, et ex lege Aquilia et ex duodecim tabularum dandam ac-
tionem Labeo ait. Sed Trebatius, ita utramque dandam, ut iudex in
posteriore deducat id, quod ex prima consecutus sit, et reliquo condemnet'
Dig. 47. 7. I, 'qui rem rapuit, et furti nee manifest! tenetur in duplum,
et vi raptorum in quadruplum : sed si ante actum sit vi bonorum rap-
torum, deneganda est furti, si ante furti actum sit, non est ilia deneganda,
ut tamen id, quod amplius in ea sit, consequatur ' Dig. 47. 2. 88. This
conclusion seems at first sight to be contradicted by a dictum of Mo-
destinus, 'plura delicta in una re plures admittunt actiones, sed non
posse omnibus uti probatum est: nam si ex una obligationc plures
actiones nascuntur, una tantununodo, non omnibus utendum est' Dig.
44* 7* 53- pi"* ; hut this may be taken to mean that the several actions
cannot all be brought with ifull effect ; and the proposition would be true
invariably if the injured person, where he had an alternative, was careful
enough to select the remedy by which he could recover the heaviest
penalty.

Tit. Z. Of the exceptions to the old rule nemo alieno nomine lege
agere potest (Dig. 50. 17. 123) *pro populo' refers to the actiones popu-
lares, and ' pro libertate ' includes manumission per vindictam, p. 1 17 supr.
Nothing further is known of the lex Hostilia. What is meant by * pro
tutela ' in the text is much disputed : Theophilus' explanation of it by
supposing •a suit between two or more persons claiming a tutela is
generally rejected, and perhaps it may be right to understand it of
actions brought generally by the tutor in relation to the ward's property.

584 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

litigare : nam et morbus et aetas et necessaria per^rinatio
itemque aliae multae causae saepe impedimento sunt, quo

The Twelve Tables had also allowed the relations of a person who had
suffered an aggravated outrage to sue for talio on his behalf, p. 538 supr. ;
and the legis actio repetundarum could, under the statutes by which it
was regulated (e, g. Calpumia, Servilia), be brought by a Roman citizen
on behalf of the persons really injured.

The introduction of the formulary procedure facilitated representation
of defendants no less than of plaintiffs. From this time onward it was
allowed by the praetor with but slight limitations ; the desired end being
attained by the principal's name appearing in the intentio of the formula,
the agent's in the condemnatio ; e.g. ' si paret Caium Seio (principal)
sestertium decern milia dare oportere, iudex Caium Titio (agent) ses-
tertium decem milia condemna : si non paret, absolve ' (Gains iv. 86, 87).
Of such agents there were two types. The older of these is the cognitor,
who was appointed for a single action (in litem) in the presence of the
other party, certis et soUennibus verbis, the formulae of which are pre-
served by Gains iv. 83. There could thus be no question of the cog-
nitor's authority, and consequently he was identified with his principal
throughout ; his processual acts affected the latter exactly as if they had
been his own : ' domini loco habetur ' Gaius iv. 97. The other is the
procurator, who might be a general agent, acting even without com-
mission ; ' quin etiam sunt qui putant vel eum procuratorem videri, cui
non sit mandatum, si modo bona fide accedat ad negotium, et caveat
rem ratam dominum habiturum ; igitur etsi non edat mandatum pro-
curator, nihilominus agere posse, quia saepe mandatum initio litis in
obscuro est, et postea apud iudicem ostenditur' Gaius iv. 84. The pro-
curator thus stood upon an altogether different footing from the cognitor,
for the alleged principal might turn out to be no principal at all, or at
any rate not to have consented to the agent's bringing or defending the
action for him : consequently, he was not identified with the latter, as
the cognitor was, and was in fact the real party to the action himself.
Hence, if he appeared as plaintiff, the principal's right of action was not
consumed, so that he could subsequently sue upon it himself (Gaius iv.
98), and the agent alone could bring actio iudicati against the defendant,
if condemned, fragm. Vat. 317 ; if he appeared as defendant, it was he,
and not the principal, against whom the actio iudicati must be brought
if the case went against him. The general consequence of this non-
identification of procurator with his dominus was that he was allowed
to appear as plaintiff or defendant only upon the condition that the other
party to the action was fully protected against the risk of the principal's
disowning his proceedings by subsequently suing upon the same ground
himself, or by refusing to satisfy an adverse judgment. This was effected
by the system of security described in the next Title.

Between Gaius and Justinian the cognitor disappeared, and when
there was no doubt that a procurator really was what he held himself

Tit. 11.3 DE SATISDATIONIBUS. 5^5

minus rem suam ipsi exsequi possint. Procurator neque certis 1
verbis neque praesente adversario, immo plerumque ignorante
eo constituitur : cuicumque enim permiseris rem tuam agere
aut defendere, is procurator intellegitur. Tutores et curatores 2
quemadmodum constituuntur, primo libro expositum est.

XL
DE SATISDATIONIBUS.

Satisdationum modus alius antiquitati placuit, alium novitas
per usum amplexa est.

Olim enim si in rem agebatur, satisdare possessor com-
pellebatur, ut, si victus nee rem ipsam restitueret nee litis
aestimationem, potestas esset petitori aut cum eo agendi
aut cum fideiussoribus eius. quae satisdatio appellatur
iudicatum solvi: unde autem sic appellatur, facile est intel-

out to be, this form of representation was released from the incon-
veniences which previously had attended it, Tit. ii. 3 inf. Hence arose
more formal, though of course still optional, modes of appointing such
agents, the observance of which would place their authority beyond all
doubt ; e.g. nomination in court, note on Tit 11. 4 inf. ; registration in the
acta, ib. 3, or a written notification addressed to the one party by the other,
coupled with an undertaking to ratify the agent^s proceedings. Dig. 3. 3.
65 ; and it became a recognised rule that where the principal's authority
was delegated in any of these modes his right of action was consumed.
Dig. 44. 2. II. 7, and he could himself bring, or be sued by, the actio
iudicati, fragm. Vat. 331, 332. The latter action could still be brought
against a procurator who was condemned (unless he was appointed in
court, Tit. II. 4 inf.), but apparently he could defend himself by the
exceptio doli.

The word * quemlibet ' in the first line of the Title is not literally true ;
women and soldiers could be procurators only in rem suam, Tit. 13. 1 1
inf.; and persons branded with infamia could neither be represented
by agents themselves, frag. Vat. 322, nor as a rule act as agents, except
* pro libertate ' ib. 324.

§ 2. Under the older law tutors and curators had been treated like
procurators, and required to give security both *ratam rem dominum
habiturum ' and * iudicatum solvi ; ' though Gaius tells us, iv. 99 (cf. Tit.
II. pr. inf.), that they were sometimes excused. Under Justinian they
stood on the same footing with procurators whose appointment had been
formal, Dig. 26. 7. 2. pr.

Tit. XI. Satisdatio is properly a species of recognisance entered into

586 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

legere: namque stipulatur quis, ut solveretur sibi quod
fuerit iudicatum. multo magis is, qui in rem actione con-
veniebatur, satisdare cogebatur, si alieno nomine iudictum
accipiebat. ipse autem qui in rem agebat, si suo nomine
petebat, satisdare non cogebatur. procurator vero si in rem
agebat, satisdare iubebatur ratam rem dominum habiturum :
periculum enim erat, ne iterum dominus de eadem re expe-
riatur. tutores et curatores eodem modo quo et procuratores
satisdare debere verba edicti faciebant. sed aliquando his
1 agentibus satisdatio remittebatur. Haec ita erant, si in rem
agebatur. sin vero in personam, ab actoris quidem parte
eadem optinebant, quae diximus in actione qua in rem agitur.
ab eius vero parte cum quo agitur si quidem alieno nomine
aliquis intervenerit, omnimodo satisdaret, quia nemo defensor
in aliena re sine satisdatione idoneus es$e creditur. quod si
proprio nomine aliquis indicium accipiebat in personam, iudi-
catum solvi satisdare non cogebatur.

by stipulation not only by the principal party, but also by sureties on his
behalf, their liability and his being correal : ' satisdare dicimuradversario
nostro cum pro eo quod a nobis petiit ita cavit, ut eum hoc nomine
securum faciamus datis fideiussoribus ' Dig. 2. 8. i. In this specific sense
it is Contrasted in § 2 inf. with nuda promissio and promissio cum iure-
iurando, and in Dig. 46. 5. 7 with pignoribyis datis cavere.

In real actions under the formulary system the satisdatio given by a
defendant had varied with the form of the action itself. If this was for-
mula petitoria the name of the security was iudicatum solvi (for which see
on § 4 inf.) ; if it was per sponsionem, it was called pro praede litis et vin-
diciarum, Gaius iv. 91. 94 a. If the defendant was a procurator, he had to
give satisdatio iudicatum solvi himself; if a cognitor, this was done by
the principal, Gaius iv. loi. A cognitor who was plaintiff had not, like
a procurator in the same position, to engage ' ratam rem dominum habi-
turum,' because he was domini loco, Gaius iv. 97.

§ 1. To Justinian's statement that under the older system a defendant
in a personal action who appeared himself had not to give security iudi-
catum solvi there are some exceptions. He had to do so ' propter genus
actionis' in the actiones iudicati and depensi; when he was sued for
retaining a portion of the divorced wife's dos and pleaded her immorality
(cum de moribus mulieris agetur) ; and probably in the iudicium fructua-
rium in a double interdict, Gaius iv. 169. In other cases the defendant's
own character or position justified the suspension of the ordinary rule,
i. e. where he had been, was, or was suspected of being insolvent, Gaius
iv. 102.

Tit. n.] DE SATISDATIONIBUS. 587

Sed haec hodie aliter observantur. sive enim quis in rem 2
actione convenitur sive personal! suo nomine, nullam satis*
dationem propter litis aestimationem dare compelHtur, sed
pro sua tantum persona, quod iudicio permaneat usque ad
terminum litis, vel committitur suae promissioni cum iure-
iurando, quam iuratoriam cautionem vocant, vel nudam pro-
missionem vel satisdationem pro qualitate personae suae dare
compellitur. Sin autem per procuratorem lis vel infertur vel 3
suscipitur, in actoris quidem persona, si non mandatum actis
insinuatum est vel praesens dominus litis in iudicio procura-
toris sui personam confirmaverit, ratam rem dominum habi-
turum satisdationem procurator dare compellitur : eodem ob-
servando et si tutor vel ciu-ator vel aliae tales personae, quae
alienarum rerum gubernationem receperunt, litem quibusdam
per alium inferunt. Sin vero aliquis convenitur, si quidem 4

§ 2. Thus the engagement entered into in Justinian's time by a
defendant who appeared in person covered the ground of both (i) the
old vadimonium or cautio iudicio sisti, Gains iv. 185, which secured the
appearance of the defendant in iure in cases of adjournment, and (2) the
clause de re defendenda of the security iudicatum solvi; it bound him to
appear in court on the day of trial and defend the action : but he was no
longer required to guarantee satisfaction of the judgment* The ordinary
mode of entering into this engagement was satisdatio ; but even before
the time of Gaius the praetor had drawn distinctions in vadimonia, being
satisfied in some cases with a merely personal undertaking without sure-
ties (vadimonium purum), and in others with such undertaking fortified
by the oath or by a summary process for the recovery of the recognisance
(' recuperatoribus suppositis ' Gaius iv. 185). Under Justinian landowners
(Dig. 2. 8. 15) and personae illustres (Cod. 12. i. 17) could be compelled
to bind themselves in iudicio permanere usque ad terminum litis only by
a written cautio iuratoria ; it is not clear who were privileged to give a
bare promise to this effect, though the edict seems to have contained
careful regulations on the subject, Gaius loc. cit. : ' pro tenore generalium
edictorum ' Cod. 12. 22. 8.

§ 3. The general principle as to when a procurator who appears as
plaintiff must give security ratam rem dominum habiturum is found in
Cod. 2. 13. I *' cautio ratihabitionis tunc exigitur a procuratore, quotiens
incertum est an ei negotium mandatum est,' cf. Dig. 3. 4. 6. 3 ' si de de-
creto dubitetur, puto interponendam et de rato cautionem.' The agent
was also exempted where his appointment was notified by letter to the
other party, note on Tit. lo, pr. supr., or was evidenced by a libellus ad-
dressed to the emperor, Dig. 46. 8. 21.

§ 4. The meaning of ' praesens ' is supplied by Dig. 3. 3. 5. 7 : 'praesens

588 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

praesehs procuratorem dare paratus est, potest vd ipse in
iudicium venire et sui procuratoris personam per iudicatum
solvi satisdationis sollemnes stipulationes firmare vel extra
iudicium satisdationem exponere^ per quam ipse sui procu-
ratoris fideiussor existit pro omnibus iudicatum solvi satisda-
tionis clausulis. ubi et de hypotheca suarum rerum convenire
compellitur, sive in iudicio promiserit sive extra iudicium
caverit, ut tam ipse quam heredes eius obligentur : alia insuper
cautela vel satisdatione propter personam ipsius exponenda,
quod tempore sententiae recitandae in iudicio invenietur, vel
si non venerit, omnia dabit fideiussor, quae condemnatione
5 continentur, nisi fuerit provocatum. Si vero reus praesto ex
quacumque causa non fuerit et alius velit defensionem subire,
nulla differentia inter actiones in rem vel personales intro-
ducenda potest hoc facere, ita tam en ut satisdationem iudi-
catum solvi pro litis praestet aestimatione. nemo enim se-

habetur et qui in hortis est et qui in urbe et in continentibus aedificiis : et
ideo procurator eius praesentis esse videtur.' Thus if the procurator
were appointed by the defendant himself in court, he was in the same
position as a defendant's cognitor under the older system (Gains iv. loi) :
his principal, not he, had to give security iudicatum solvi, either alone
(cautio) or with sureties (satisdatio). If he were appointed out of court by
a ' present ' defendant, he had to give security himself, and his principal
was his surety (fideiussor) : * in rem suam fideiubeant, ut pro suo procu-
ratore ' Dig. 2. 8. 8. i. The security consisted of three clauses : ' iudicatum
solvi stipulatio tres clausulas in unum collatas habet : de re iudicata, de re
defendenda, de dolo malo ' Dig. 46. 7. 6. By the first of these the man
engaged in case the action went against him, to restore the property to
which it related, or pay the damages assessed by the judge (Gaius iv. 89) :
by the second, he promised to defend the action : by the third, to indem-
nify the plaintiff against malicious deterioration of Uie disputed property
while in his hands. A difficulty is raised by the passage in the text which
accounts for the compulsory hypotheca by the desire to bind the real de-
fendant's heirs, for they were in point of fact already bound by his
engagement iudicatum solvi. Perhaps this is to be explained by suppos-
ing that formerly the sureties in this security were sponsors or fide-
promissors, whose liability did not descend to their successors (Gaius iii.
120), and that these lines have been transcribed from some old jurist into
the Institutes by an oversight.

§ 5. A defensor was a person who without commission undertook the
defence of another who through absence, insanity, minority, or some
other cause neglected, or was unable, to appear for himself. Litis con-
testatio with the volunteer released the real defendant from all liability :

Tit. la.] DE PERPETUIS ET TEMPORAL/BUS, ETC. 589

cundum veterem regulam, ut iam dictum est, alienae rei sine
satisdatione defensor idoneus intellegitur. Quae omnia aper- 6
tius et perfectissime a cottidiano iudiciorum usu in ipsis rerum
documentis apparent. Quam formam non solum in bac regia 7
urbe, sed et in omnibus nostris provinciis, etsi propter impe-
ritiam aliter forte celebrabantur, optinere censemus, cum ne-
cesse est omnes provincias caput omnium nostrarum civitatum,
id est banc regiam urbem, eiusque observantiam sequi.

XII.

DE PERPETUIS ET TEMPORALIBUS ACTIONIBUS ET QUAE
AD HEREDES VEL IN HEREDES TRANSEUNT.

Hoc loco admonendi sumus eas quidem actiones, quae ex
lege senatusve consulto sive ex sacris constitutionibus profi-
ciscuntur, perpetuo solere antiquitus competere, donee sacrae
constitutiones tam in rem quam personalibus actionibus certos
fines dederunt : eas vero, quae ex propria praetoris iurisdic-
tione pendent, plerumque intra annum vivere (nam et ipsius
praetoris intra annum erat imperium). aliquando tamen et
in perpetuum extenduntur, id est usque ad finem constitu-
tionibus introductum: quales sunt hae, quas bonorum pos-
sessor! ceterisque qui heredis loco sunt accommodat. furti
quoque manifesti actio, quamvis ex ipsius praetoris iurisdic-
tione proficiscatur, tamen perpetuo datur: absurdum enim

' solutione vel iudicium pro nobis accipiendo et inviti et ignorantes liberari
possumus' Dig. 46. 3. 23 ; c£ Dig. 15. 3. 10. I.

§ 7. Cf. Justinian's comment on Zeno's constitution de aedificiis privatis
in Cod. 8. 10. 13 'indignum esse nostro tempore putantes aliud ius in hac
regia civitate de huiusmodi observari, aliud apud nostros esse provinci-
ales, sancimus eandem constitutionem in omnibus urbibus Romani imperii
optinere.'

Tit. XH. Originally all actions were perpetuae. Substantive ^ sanc-
tioned' rights might be destroyed by lapse of time, e. g. that of the
dominus by usucapio, and that of a creditor against a sponsor or fide-
promissor under the two-year limitation of the lex Furia, p. 425 supr. : but
there was no rule of law providing that rights of action should be barred
unless issue were joined within a definite period from their accrual.

The praetor, however, provided that many of the new actions which
he introduced through the edict should lie only within an annus utilis

590 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

1 esse existimavit anno earn terminari. Non omnes autem
actiones, quae in aliquem aut ipso iure competunt aut a prae-
tore dantur, et in heredem aeque competunt aut dari sclent,
est enim ccrtissima iuris regula ex maleficiis poenales actiones

from the moment at which they first accrued, though between this period
and his own limited tenure of office there does not seem to have been the
connection suggested by Justinian in the text. By &r the most im-
portant class of these annates actiones are the praetorian penal actions,
with the excepdon of that on fiirtum manifestum, which remained per-
petua because it was in commutation of a capital penalty, Gains iv. iii,
iii. 189 ; but even these were perpetuae so fer as they were brought only
to deprive the delinquent of any benefit he had derived from his wrong :
* in honorariis actionibus sic esse definiendum Cassius ait, ut quae rei
persecutionem habeant, hae etiam post annum darentur, ceterae intra
annum * Dig. 44. 7. 35. pr. Praetorian actions which were merely uni-
laterally penal (e. g. actio doli) were prescribed in a year if contra ius
civile, Dig. ib. Interdicts, so far as they were penal, were similarly
limited : the actiones populares were all annales. Dig. 47. 23. 8 : and
the prescription of the aedilician actions on sale has been already noticed,
p. 437 supr., as also has the longi temporis praescriptio relating to actions
for the recovery of property which had been for a defined time in the
hands of a bona fide possessor with iustus titulus, p. 229 supr. In course
of dme too a prescription was fixed by disconnected legislation for other
actions, in particular one of five years for the querella inofficiosi testament!.
Cod. 3. 28. 36. 2 : Dig. 5. 2. 8. 17. Actions which fell under the old rule
"* were called perpetuae, those which were limited by any of these periods
temporales.

More systematic legislation upon this matter commenced with Con->
stantine, who enacted that aU real actions which were not already limited
might be repelled by an exceptio unless brought within forty years, Cod.
7. 39. 2, which subsequently seems to have been reduced to thirty, the
time here being not utile but continuum. In A. D. 424 Theodosius sub-
jected to this same thirty years' limit all actions whatsoever, with a few
exceptions, which had hitherto been perpetuae. Cod. ib. 3. This rule is
in force under Justinian, the only actions of importance which are not
governed by it being vindicatio in hbertatem, Cod. 7. 22. 3, and fiscal
claims for unpaid taxes, Cod. 7. 39. 6, which continued perpetual in the
old sense ; so that in his compilations actio perpetua means an action
which is prescribed in not less than thirty years.

For the remedies of the bonorum possessor and other praetorian suc*>
cessors who feigned themselves heirs see Gaius iv. 34, 35.

§ 1. A right of action which, though not exercised by the person to
whom it originally accrued, may still be exercised by his heir, is said to
be actively transmissible ; one which, though not exercised against the
person originally liable, may still be exercised against his heir^ is said to
be passively transmissible.

Tit. la.] DE PERPETUIS ET TEMPORALIBUS, ETC. 591

in heredem non competere, veluti furti, vi bonorum raptorum,
iniuriarum, damni iniuriae. sed heredibus huiusmodi actiones
competunt nee denegantur, excepta iniuriarum actione et si
qua alia similis inveniatur. aliquando tamen etiam ex con-
tractu actio contra heredem non competit, cum testator dolose
versatus sit et ad heredem eius nihil ex eo dolo pervenerit.
poenales autem actiones, quas supra diximus, si ab ipsis
principalibus personls fuerint contestatae, et heredibus dantur

Active transmission, as Justinian remarks, is the rule. Those rights
of action only are excepted (of which the actio iniuriarum is here taken
as a type) which are grounded not on a damnum or injury to property,
but on a grievance or insult to the person ; e. g. among others (as a rule)
the querella inofficiosi testamenti, Dig. 5. 3. 6, a, and the remedy of a
patron or pater against a freedman or child who commenced legal
proceedings against him without the praetor*s permission, Tit. 16. 3 inf.
The point of the distinction is well put by Theophilus, "ivBa yhp rh ytv6'»
fieyov dfidpnjfia iXaTToi rrip tov fjLtWovTos reXcvr^y irtpiovo'iap, r&rt xal 6
KkijpoifSfios, i>g a-wabiKovfityogf rrfv dn6 rov AfuifnT^fAaTog ayayfjy Kunjorei . • ,
'fiircid^ . . « ov fuioi triv wrdarao'iVf €(xdra>ff Koi 6 kkripov6fAos 6 tfids, i>£ fifj

The chief exceptions to passive transmission are the actiones populares,
Dig. 47. 23. 7. 8, and (as is observed in the text) penal actions arising ex
delicto. Actions which are purely poenae persecutoriae are passively
transmissible only when they are absolutely the only remedy on the
wrong (e. g. the actio on calumnia, Dig. 3. 6. 5. pr.), and then only so far
as the inheritance has been enriched thereby ; and this same principle of
the liability of the heir to the extent to which the inheritance has been
benefited applies also to actions (x) which, though grounded on delict,
are purely rei persecutoriae (e.g. actio doli, Dig. 4. 3. 17. i, quod metus
causa, Dig. 4. 2. 16. 2); (2) which are mixtae, except where an action
which is purely rei persecutoria lies on the same delict (e. g. the condictio
furtiva on rapina. Dig. 47. 8. 2. 27). Condictio furtiva, not being based
on delict, lies against the thief s heir in solidum, Tit. i. 19 supr., Dig. 13.
X. 7. 2 ; ib. 9.

The examples given by Gaius (iv. 113) of actions which, though arising
ex contractu, are either actively or passively untransmissible, create no
difficulty : * adstipulatoris heres non habet actionem, et sponsoris et fide-
promissoris non tenetur.' But Justinian's statement in the text that where
a party to a contract has been guilty of dolus his heir is not suable, if he
has personally derived no advantage from the fraud, is contradicted by a
lai^e number of passages in the Corpus iuris ; e. g. Dig. 50. 17. 157. 2 * in
contractibus successores ex dolo eorum, quibus successerunt, non tantum
in id quod pervenit, verum etiam in solidum tenentur,' Dig. 44. 7. 12
(which disproves Theophilus' explanation of this passage by the actio
depositi) *et depositi et commodati et mandati et tutelae et negotiorum

592 INSTITUTIONUM LIBRI QUATTUOR. [Lib. rv.

2 et contra heredes transeunt. Superest ut admoneamus, quod
si ante rem iudicatam is cum quo actum est satisfaciat actori,
officio iudicis convenit eum absolvere, licet iudicii accipiendi
tempore in ea causa fuisset, ut damnari debeat : et hoc est,
quod ante vulgo dicebatur, omnia indicia absolutoria esse.

gestorum ob dolum malum defuncti heres in solidum tenetur/ ib. 49 'ex
contractibus venientes actiones in heredes dantur, licet delictum quoque
versetur.' It may be that the passage was taken into the text of the
Institutes from Gaius without the obsolete example which alone could
give it a semblance of truth ; but it is better to understand it of cases in
which fraud was not remediable by the ordinary action on the contract
(i. e. strict! iuris contracts) but only by the actio doli ; this being sup-
ported by Dig. 4. 3. 17. I 'haec actio (doli) in heredem datur. . . de eo
quod ad eos pervenit.' Upon this interpretation the expression ' ex con-
tractu actio' of course is loose; all it means is that a delictual action
arising from fraud in contractual relations lies in heredem only so far as
the inheritance has been enriched by the fraud itself— a principle which
has been already stated.

There is no question of transmission when the action has once
reached the stage of litis contestatio ; from that moment, whatever its
character, it bound and entitled the heirs of the defendant and plaintiff
respectively in every case.

§ 2. The truth of the dictum 'omnia iudicia esse absolutoria,' which
means that even where the defendant is proved to have been in the
wrong the trial must end in absolution ' si ante rem iudicatam satisfaciat
actori' (Gaius iv. 114), had been disputed by the jurists. The Sabinians
had affirmed it in its entirety ; the other school admitted it in real and
bonae fidei- actions, Gaius loc. cit., but from all others they had excluded
it as inconsistent with the duty of the iudex as laid down in the formula.
In this he was instructed to condemn the defendant if he found that, at
the date of litis contestatio, he was bound by the obligation alleged by the
plaintiff: si paret . . . condemna. His duty therefore was plain : no
occurrence subsequent to litis contestatio could justify him in absolving
the defendant if the plaintiff made out his case, not even full satisfaction
of the latter's claim before the termination of the action. The only
liability of the defendant which could be cancelled by such satisfaction
was his liability as it existed before litis contestatio, and that had been
already destroyed by the novative operation of litis contestatio itself.
Thus the difficulty which the Proculians felt in admitting the maxim in
its generality arose entirely from the formula, and consequently with the
disappearance of the formula the difficulty disappeared also, and the rule
became universal.

A topic treated by Gaius in close connection with the Prescription of
actions is their Pendency ; the question of the duration of actions which
have once been commenced by litis contestatio. All actions were for

Tit. 13.1 DE EXCEPT TO NIBUS. 593

XIII.
DE EXCEPTIONIBUS.

Sequitur, ut de exceptionibus dispiciamus, comparatae sunt
autem exceptiones defendendorum eonim gratia, cum quibus

this purpose divided in his time into two classes ; those ' quae legitimo
iure consistunt,' and those * quae imperio continentur.* The former are
all actions which were tried within the first milestone from Rome by a
single iudex who was a Roman citizen, and all the parties to which
were citizens also ; they were required by the lex lulia iudiciaria to be
adjudged within eighteen months of litis contestatio, though previously
they do not seem to have been limited, Cic. pro Quinctio 13 (*et hoc est
quod vulgo dicitur, e lege Julia litem anno et sex mensibus mori' Gaius
iv. 104). The latter comprised all actions tried outside the first mile-
stone, and also those tried within it by more than one judge (e.g. by
recuperatores) or in which the judge or any party was a peregrinus ;
they fell to the ground unless judgment was delivered before the
magistrate who gave the formula vacated ofHce : ' tamdiu valent, quamdiu
is qui ea praecepit imperium habebit ' Gaius ib. 105. Where the indicium
was legitimum, in personam, and had an intentio in ius concepta, no
subsequent action would lie on the same ground ; in all other cases the
plaintiff could sue again, but could be repelled by exceptio rei iudicatae
or in indicium deductae, ib. 106, 107. The twenty years' suit spoken of
by Martial (7. 65) was probably prolonged to this inordinate length by a
series of appeals ; suits tried extra ordinem (not being indicia) were of
course not subject to these rules, nor apparently were actions tried in the
centumviral court : * iudicia centumviralia, quibus peragendis vix suffec-
tura litigatorum aetas videbatur' Suetonius, Vesp. 10.

The rules of Pendency described by Gaius went out of use with the
formulary procedure. Constantine appears to have put it in the power
of a defendant to compel his plaintiff to bring the cause to judgment
within two years from its commencement (Cod. Theod. 2. 15), which was
extended to three by Justinian, who also introduced a summary pro-
cedure enabling a party to put a stop to unreasonable delay on the part

of his opponent : ' censemus omnes lites , exceptis tantummodo

causis quae ad ius fiscale pertinent, vel quae ad publicas respiciunt
functiones, non ultra triennii metas post litem contestatam esse protra-
hendas' Cod. 3. i. 13. i. If both parties let an action drop after its
commencement, it could be resumed at any moment within forty years :
*quod tempus, id est, quadraginta annorum spatium, ex eo numerari
decernimus, ex quo novissima processit cognitio, postquam utraque pars
cessavit * Cod. 7. 39. 9. 3.

Tit. XIII. The general nature of exceptiones, and the form which
they assumed under the system of formulae, are described in Excursus X

Qq

594 JNSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

agitur : saepe enim accidit, ut, licet ipsa persecutio qua actor
experitur iusta sit, tamen iniqua sit adversus eum cum quo
1 agitur. Verbi gratia si metu coactus aut dole inductus aut
errore lapsus stipulanti Titio promisisti, quod non debueras
promittere, palam est iure civili te obligatum esse et actio,

inf. Under Justinian the term still denotes the plea by which a defendant
who cannot deny the existence of the plaintiff's right of action (ipso iure
actionem non habere) argues that it cannot be exercised with effect in
consequence of his possessing a countervailing right by which it is
balanced: 'exceptio dicta est quasi quaedam exclusio, quae opponi
actioni cuiusque rei solet ad excludendum id quod in intentionem con-
demnationemve deductum est' Dig. 44. l. 2. pr. But, besides losing its
old formal or processual meaning, as an element in the formula, even
the old material signification of the term, as a plea in defence of a
countervailing right, has now become less prominent owing to a new
distinction which has arisen between defences which relate to the pro-
cedure, and defences which rather meet the plaintiff's case upon its
merits. Among the former are objections touching the competence or
impartiality of the court, the person of the plaintiff (e. g. exceptio procu-
ratoria), the form of the action, and the exceptio praeiudicii. These
must be advanced and argued before litis contestatio, the opening of the
case by narratio and contradictio, for if they are shown to be well
grounded the action cannot proceed. Defences of the second class,
whether they directly traverse the plaintiff's contention, or merely aUege
a countervailing right in the defendant, need not be advanced till litis
contestatio ; the result of this being that the term exceptio is sometimes
improperly used to denote what is really an absolute denial of the
plaintiff's right; e.g. exceptio longi lemporis after ten or twenty years*
bona fide possession by a defendant with iustus titulus.

Dilatory exceptions (§10 inf.) belonging to this latter class of defences
must always be advanced at the litis contestatio, and any attempt to
bring them forward for the first time at a later stage of the proceedings
was punished by a fine infficted on the counsel ; but no evidence need be
given in their support till the plaintiff has proved his own case : * excep-
tionem dilatoriam opponi quidem initio, probari vero postquam actor
monstraverit quod asseverat oportet * Cod. 4. 19. 19. For the general pro-
cedure see § 10 inf. and notes.

Peremptory exceptions (§ 9 inf.) also as a rule are advanced in the con-
tradictio, at the opening of the case, and similarly need not be proved
till the plaintiff has established his own contention, Cod. 7. 33. 9 ; but the
defendant may always bring them forward later, and may even allege
them for the first time on appeal: 'si quid autem in agendo negotio
minus se allegasse litigator crediderit, quod in iudicio acto fuerit omissum
apud eum qui de appellatione cognoscit persequatur' Cod. 7. 62. $. i.

§ L For the introduction of the exceptio quod metus causa by the

Tit. 13.] DE EXCEPTIONIBUS. 595

qua intenditur dare te oportere, efficax est : sed iniquum est
te condemnari ideoque datur tibi exceptio metus causa aut
doll mali aut in factum composita ad impugnandam actionem.
Idem iuris est, si quis quasi credendi causa pecuniam stipu- 2
latus fuerit neque numeravit. nam eam pecuniam a te petere
posse eum certum est : dare enim te oportet, cum ex stipulatu

praetor Octavius see on Tit. 6. 33 supr. A person who had been induced
by intimidation to make any disposition (and not merely a contract, as
might hastily be inferred from the text ; see Gaius iv. 1x7) could either
bring the actio quod metus causa (Tit. 6. 27 supr.) by which he might
recover penal damages for any loss he had suffered, or he could repel
any action brought against him on the disposition by the exceptio (which,
however, was not necessary in bonae iidei actions, Cod. 4. 44. 8), or
finally he might get himself in integrum restitutus. With ' palam est iure
civili te obligattun esse ' in the text we may compare Dig. 4. 2. 21. 5 ' si metu
coactus adii hereditatem, puto heredem me effici, quamvis si liberum esset
noluissem, tamen coactus volui.'

What has been said of metus may, mutatis mutandis, be repeated of
dolus ; see the note on Tit 6. 33 referred to. Here the fraud had to be
alleged specifically against the plaintiff in the exceptio ; ' et quidem illud
adnotandum est, quod specialiter exprimendum est, de cuius dolo quis
queratur, non in rem, " si in ea re nihil dolo malo factum est," sed sic
'' si in ea re nihil dolo malo actoris factum est " ' Dig. 44. 4. 2. i ; cf. (of the
actio doli) ' in haec acdone designari oportet cuius dolo factum sit, quam-
vis in metu non sit necesse ' Dig. 4. 3. 15. 3. Where to ' nihil dolo malo
factum est ' was added ' neque fiat' (as in Gaius iv. 119) the exceptio was
said to be generalis.

If the defendant's plea was not one of the commoner kinds which had
received specific names, it briefly stated the facts upon which he relied,
and was then said to be in factum composita : ' in factum Xcycrat cVfid^
dti^yi^/Miriiettp rh yci^ficpoy carrvri^vw ' Theophilus ; SO, too, Gaius describes
. formulae in factum conceptae by saying ' nominato eo quod factum est '
iv. 46 ; for an example see fragm. Vat. 310 * si non donationis causa man-
cipavi vel promisi me daturum.' In a loose sort of way these exceptiones
in factum were comprised under the exceptio doli : ' generaliter sciendum
est ex omnibus in factum exceptionibus doli oriri exceptionem, quia dolo
facit, quicunque id quod quaqua exceptione elidi potest petit ' Dig. 44. 4.
2. 5. It may be, however, that the contrast is merely the old one between
in ius and in factum, the judge's attention being directed in some excep-
tiones to a question merely of law (e. g. ' si in ea re nihil contra legem
Cinciam factum sit ' fragm. Vat. 310) ; this, as Keller remarks (Civil Pro-
cess § 35), would make most exceptions in factum.

§ 2. The appropriate defence in this case is said by Gaius (iv. 116) to
be the exceptio doli. If the transaction had purported to be a mere
mutuum, not a stipulation no exceptio would have been necessary ; the

59^ INSTITUTJONUM LIBRI QUATTUOR, [Lib. IV.

tenearis : scd quia iniquum est eo nomine te condemnari,
placet exceptione pecuniae non numeratae te defend! debere,
cuius tempora nos, secundum quod iam superioribus libris

3 scriptum est, constitutione nostra coartavimus. Praeterea
debitor si pactus fuerit cum creditore, ne a se peteretur, nibilo
minus obligatus manet, quia pacto convento obligationes non
omnimodo dissolvuntur : qua de causa efficax est adversus
eum actio, qua actor intendit *si paret eum dare oportere.'
sed quia iniquum est contra pactionem eum damnari, de-

4fenditur per exceptionem pacti conventi. Aeque si debitor
deferente creditore iuraverit nihil se dare oportere, adhuc obli-
gatus permanet, sed quia iniquum est de periurio quaeri,
defenditur per exceptionem iurisiurandi. in his quoque ac-
tionibus, quibus in rem agitur, aeque necessariae sunt excep-
tiones: veluti si petitore deferente possessor iuraverit earn
rem suam esse et nihilo minus eandem rem petitor vindicet :
licet enim verum sit quod intendit, id est rem eius esse, ini-

5 quum est tamen possessorem condemnari. Item si iudicio

plaintifTs right to recover lay only upon the assumption that the money
had actually been advanced, so that the defendant would simply stand by
and require him to prove it, for otherwise he could not show * (reum) dare
oportere ; ' his defence was a direct traverse of the plaintifTs case. For
the whole subject see Excursus VIII supr., and for the practice of accom-
panying mutua with a stipulation for repayment cf. Com. Nepos, Att. %
Dig. 12. I. 30 ; 46. 2. 6. I ; ib. 7.

§ 8. For pactum de non petendo, and qualifications of the rule ' pacto
convento obligationes non omnimodo dissolvuntur ' see p. 462 supr. The
form of the exceptio in the formulary period was ' si non convenit ne ea
pecunia peteretur.'

§ 4. See Tit. 6. xi supr. and notes. In Dig. 12. 2. 2 the oath is spoken
of as having even greater weight than the judgment of a court of law ;
^maioremque habet auctoritatem quam res iudicata.' The obligation
^hich remained after the debtor had denied his liability on oath (adhuc
obligatus manet) was civil only; the natural obligation was destroyed,
^ig* 46. 3. 95* 4 ; for the oath being an institution of natural law it is
^ iniquum de periurio quaeri ; ' in the next paragraph, where he is speak-
ing of the exceptio rei iudicatae, Justinian does not use the word iniquum,
for res iudicata is iuris civilis. For the employment of exceptions gene-
rally in real actions cf. Gaius iv. 117, and for this special case Dig. 12. 2.
3. I ' quacunque actione quis conveniatur, si iuraverit, proficiat ei iusiu-
randum, sive in personam sive in rem agatur.'

§ 6. Under the legis actio procedure a second action could never be

Tit, 13.1 DE EXCEPTIONIBUS. 597

tecum actum fuerit sive in rem sive in personam, nihilo minus
obligatio durat et ideo ipso iure postea de eadem re adversug

brought on the same ground : ' qua de re semel actum erat, de ea postea
ipso iure agi non poterat ' Gaius iv. 108 ; a rule which in the formulary
period was almost entirely reversed ; see note on Pendency pp. 592, 3 supr. ;
Gaius iii. 181 ; iv. 106, 107. In the latter's time a defendant in any action
(putting aside iudicia leg^tima in personam with an intentio in ius con-
cepta, in which the right of action was consumed ipso iure) could, after
the lis had once been contestata, protect himself against further litigation
on the same ground by exceptio rei in iudicium deductae, and after
judgment by exceptio rei iudicatae. The first of these is no longer
found under Justinian, as litis contestatio had lost its novative effect of
destroying the right of action. With the disappearance, too, of the
distinction between iudicia legitima and those quae imperio continentur
the rule has become universal that technically there is nothing to prevent
the commencement of an action upon a ground which has been already
adjudicated upon ; the exceptio rei iudicatae remains in full operation ;
' obstat, quotiens inter easdem personas eadem quaestio revocatur ' Dig.
.44. 3. 3 ; ib. 7. 4. Its operation now, however, is never unjust, as it must
often have been in the formulary period, when it protected a defendant
with equal force whether the ground upon which he had been absolved
was merely technical, or one of substantial justice; whether he was
absolved because he had already paid the money for which he was sued,
or because the plaintiff had carelessly brought his action a day before
the money really fell due, was immaterial ; the plea of res iudicata or in
iudicium deducta was equally available. Now, however, as is remarked
by Mr. Poste (Gaius p. 579) its rules * are more flexible than the hard
and fast doctrine of necessary novation by sententia lata,' for now it is
allowed to prevent a second action only so far as this is irreconcileable
with the objective grounds upon which the previous suit was decided,
and, therefore, the mere fact of pleading it does not disarm the plaintiff;
it has to be shown that the reason why the previous action was decided
against the plaintiff would operate now (e. g. A sues B for money before
it is actually due, and B is acquitted. When the money has actually
fallen due, A renews his action ; a plea by B of res iudicata will not help
him, for the ground of the previous decision, which the court will now
examine, was not that the money absolutely was not owed, but that it
was not owed then). In fact, under Justinian, * suitors were merely re-
strained, in accordance with the real object of the institution, from
harassing their opponents with renewed litigation on the precise questions
that had once been adequately decided ' Poste's Gaius loc. cit.

More precisely, the conditions under which the exceptio rei iudicatae
is an effective defence are the two pointed out in the passage cited above
from Dig. 44. 2. 3. (i) The right asserted in the second action must be
the same as that asserted in the first. For instance, the res has not been
iudicata, because the quaestio is not eadem, if what was decided in the

598 INSTITUTIONUM LIBRI QUATTUOR. [Ub. IV.

te agi potest: sed debes per exceptionem rei iudicatae ad-
G iuvari, Haec exempli causa rettulisse sufficiet. alioquin quam

first suit was a question of possession, while in the second we have a
question of ownership, Dig. 44. 2. 14. 3, or where an iter is claimed in one
action, and an actus in a second, Dig. ib. 11. 6. But, granted that the
right alleged is the same, it is immaterial that the second action is of a
different nature from the first : * de eadem re agere videtur et qui non
eadem actione agit, qua ab initio agebat, sed etiam si alia experiatur, de
eadem tamen re ' Dig. ib. 5. For examples of difference of actions involving
the same right cf. Dig. 44. 2. 7 (bereditatis petitio and vindicatio) ; ib. 8
(hereditatis petitio and actio familiae erciscimdae) ; ib. 24 (vindicatio and
actio Publiciana). Granted, again, that the right alleged is the same, it
is immaterial that in the first action a point was decided incidentally only
which forms the principal question in the second, though by the prae-
scriptio praeiudicii or exceptio praeiudicialis (Cic. de invent. 2. 20) the
defendant was enabled to postpone such incidental determination of an
issue which was all-important in another suit.

It is often said that the identity of the object to which the right in
either action relates is an essential condition of exceptio rei iudicatae ; e.g.
^ cum quaeritur, haec exceptio noceat necne ? inspiciendum est an idem
corpus sit' Dig. 44. 2. 12 ; but, though it may usually be inferred that
the quaestio is eadem from the identity of the res, it is really immaterial
that the res are different if the right is substantially identical in the two
actions ; e. g. if a plaintiff demands first the whole, and later a part of that
whole, Dig. ib. 7. pr., or if he claims first an ancilla praegnas, and then a
child conceived by her after litis contestatio in that action, ib. 7. i, the
exceptio can be pleaded with effect.

If the right alleged in the two actions is the same, but is based, in the
second, upon a different title from that affirmed in the first, a distinction
must be drawn between real and personal actions. If the action was
real, the defendant was not estopped from pleading the exceptio by the
difference of title, for the right is the same however it may have been
acquired : ' neque enim amplius quam semel res mea esse potest ; ' and
consequently ' omnes causae (titles) una petitione apprehenduntur ' Dig.
44. 2. 14. 2. The only exception to this rule under the older law
was where the title advanced in the second had accrued since the
decision in the first action (causa superveniens) ; later it seems to have
been allowable to specify a single title in a real action (causa expressa
agere), the plaintiff thereby being held to save his right of subsequently
claiming the same property by a dififerent one. Dig. 44. 2. 1 1. 2 ; ib. 14. 2.
But in obligations the plaintiffs right differs with the mode in which the
particular obligation arose : ' actiones in personam ab actionibus in rem
hoc differunt, quod cum eadem res ab eodem mihi debeatur, singulas
obligationes singulae causae sequuntur, nee ulla earum alterius petitione
vitiatur' Dig. ib. 14. 2; e.g. 'si is qui Stichum dari stipulatus fuerat

Tit 13.] DE EXCEPTION/BUS. 599

ex multis variisque causis exceptiones necessariae stat, ex
latioribus digestorum seu pandectarum libris intellegi potest.
Quarum quaedam ex legibus vel ex his, quae legis vicem 7
optinent, vel ex ipsius praetoris iurisdictione substantiam

hercs exstiterit ei, cui ex testamento idem Stichus debebatur, si ex testa-
mento Stichum petierit, non consumet stipulationem, et contra si ex
stipulatu Stichum petierit, actionem ex testamento salvam habebit, quia
initio ita constiterint hae duae obligationes, ut altera in iudicium deducta
altera nihilominus Integra maneret' Dig. 44. 7. 18.

(2) The parties in the second must be the same as in the first action
(' inter easdem personas ' Dig. 44. 2. 3). In Justinian's time, however,
this rule had been somewhat modified. A defendant could plead the
exceptio if he had previously been sued on the same ground by an agent
of the present plaintiff : * hoc iure utimur, ut ex parte actoris in exceptione
rei iudicatae hae personae continerentur, quae rem in indicium deducant
Inter hos erunt procurator, cui mandatum est, tutor, curator furiosi vel
pupilli, actor municipum ; ex persona autem rei etiam defensor numera-
bitur, quia adversus defensorem qui agit litem in iudicium deducit ' Dig.
44. 2. 11.7; for the earlier law see note on Tit. 10. pr. supr. A party was
also identified with those whom he had succeeded either universally or
singularly. Dig. 44. 2. 9. 2 ; ib. 11. 3, with those who owned jointly with
him land subject or entitled to a praedial servitude (though only in re-
lation thereto) Dig. 8. 5. 4. 3 and 4, and with his correi, Dig. 12. 2. 28. 3.
So, too, if in an action between the testamentary and intestate heirs of a
deceased person the will was declared void or valid, the judgment bound
the legatees and creditors, Dig. 20. i. 3. pr. ; 3a 5. i ; and, as a rule, all
persons were bound by decisions on questions of status, so that (e. g.) if
A was found to be B's son by a praeiudicium, all persons had to recog-
nise him as the brother of B*s other children, whether the finding wa s
right or not, Dig. 25. 3. 1-3.

§ 7. Exceptiones might arise from any of the sources by which rights
in general were conferred, for as a statute, a senatusconsult, or the edict
could create rights, they could also, ex vi termini, create the right to an
exceptio ; but in form they may be said to be all praetorian, as it was
the praetor who enabled them to be advanced through the formula, and
in the legis actio period they were unknown, Gains iv. 108. Among
those based on statutes are the exceptio legis Cinciae, p. 236 supr., fragm.
Vat. 310, legis Plaetoriae, and legis luliae (de bonorum cessione); on
senatusconsulta the exceptiones SC^. Trebelliani, Dig. 15. 2. i. 8 ; SC^.
Macedonian!, and SC*. Velleiani ; on imperial enactment, the exceptio by
which under the epistola Hadriani the fideiussor claimed the beneficium
divisionis, p. 426 supr. Those which are purely praetorian form a large
portion of the machinery by which the praetor enabled equity to over-
come the hardship and injustice of the ius civile ; e. g. the exceptiones
doli, metus, pacti, rei iudicatae, and in factum ; but sometimes a prae-

6oO INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

8 capiunt. Appellantuf autem exceptiones aliae perpetiiae et

9 peremptoriae, aliae temporales et dilatoriae. Perpetuae et
peremptoriae siint, quae semper agentibus obstant et semper
rem de qua agitur peremunt : qualis est exceptio doli mali et
quod metus causa factum est et pacti conventi, cum ita con*

lOvenerit, ne omnino pecunia peteretur. Temporales atque
dilatoriae sunt, quae ad tempus nocent et temporis dilationem
tribuunt : qualis est pacti conventi, cum convenerit, ne intra
certum tempus ageretur, veluti intra quinquennium, nam
finito eo tempore non impeditur actor rem exsequi. ergo hi,
quibus intra tempus agere volentibus obicitur exceptio aut
pacti conventi aut alia similis, difTerre debent actionem et
post tempus agere : ideo enim et dilatoriae istae exceptiones
appellantur. alioquin, si intra tempus egerint obiectaque sit
exceptio, neque eo iudicio quidquam consequerentur propter
exceptionem nee post tempus olim agere poterant, cum temere
rem in indicium deducebant et consumebant, qua ratione rem
amittebant. hodie autem non ita stricte haec procedere
volumus, sed eum, qui ante tempus pactionis vel obligationis
litem inferre ausus est, Zenonianae constitutioni subiacere
censemus, quam sacratissimus legislator de his qui tempore
plus petierunt protulit, ut et indutias, quas, si ipse actor
sponte jndulserit vel natura actionis continet, contempserat,
in duplum habeant hi, qui talem iniuriam passi sunt, et post
eas finitas non aliter litem suscipiant, nisi omnes expensas
litis antea acceperint, ut actores tali poena perterriti tempora

torian action is repelled by a * civil ' exception ; e. g. the actio hypothe-
caria or constitutoria by exceptio SC*. Velleiani, Dig. i6. i. 8. pr. ;
ib. 29. pr.

§ 8. In drawing this distinction Justinian would have done well to
follow Gaius, who does not (iv. 120) use the alternative terms temporales
and perpetuae ; for, as Mr. Poste points out, in Cod. 5. 12. 30. 2 and
elsewhere * temporalis exceptio ' denotes the plea of prescription (longi
temporis exceptio) which was perpetual and peremptory.

§ 10. The enactment of Zeno referred to (Cod. 3. 10. 1) has been
already explained, Tit. 6. 33 supr. and notes. Under Justinian, when a
defendant had proved his dilatory exception, he was not absolutely
acquitted ; the judge's sententia (which modem writers call absolutio ab
instant ia as contrasted with absolutio ab actione) was that at that time
he did not owe the plaintiff what had been demanded from him, and the

Tit. 13.] DE EXCEPTIONIBVS. 601

Htium doceantur observare. Praeterea etiam ex persona dila- 11
toriae sunt exceptiones : quales sunt procuratoriae, veluti si
per militem aut mulierem agere quis velit : nam militibus nee
pro patre vel matre vel uxore nee ex sacro rescript© procu-
ratorio nomine experiri conceditur : suis vero negotiis super-
esse sine offensa disciplinae possunt. eas vero exceptiones,
quae olim procuratoribus propter infamiam vel dantis vel
ipsius procuratoris opponebantur, cum in iudiciis frequentari
nuUo perspeximus modo, conquiescere sancimus, ne, dum de
his altercatur, ipsius negotii disceptatio proteletur.

latter could renew his action when the obstacle was removed, though he
had to wait twice as long as would otherwise have been necessary, pay
all the plaintiff's costs hitherto incurred, and in the meanwhile could
claim no interest on the debt. As appears from the text (ante tempus
paction is vel obligationis) the procedure was the same whether the obliga-
tion was originally ex die, or payment was postponed subsequently by a
' pactum de non petendo intra certum tempus.' Among dilatory pleas
' quae ad tempus nocent' were in Gaius' time (iv. 122) the ^exceptiones
litis dividuae and litis residuae.

§ 11. Gaius exemplifies exceptiones ex persona dilatoriae (iv. 124) by
the plea that the plaintiff was suing by a cognitor when the edict dis«
qualified him from being so represented, or had appointed as his cognitor
a person similarly disabled from acting in that capacity; he does not
mention the exceptio procuratoria, though infames were disabled fh)m
both representing others and being themselves represented in that form,
fragm. Vat. 322. For infamia generally see on Tit. 16. 2 inf. Justinian's
enactment in the last lines of the paragraph seems merely to have formally
deprived defendants of a right which they had practically ceased to exer-
cise, and not to have affected the disability of infames to appoint or appear
as procurators ; the judge could still reject an agent because either he
could not act as such, or the true party could not be so represented, but
the defendant could not.

Women could not be procurators on the principle of the SC. Vellei*
anum, that all interventio was a virile munus. By Cod. 2. 13. 25 state
dfiicials of higher rank were ordered to conduct their suits by agents,
lest by appearing personally they should disturb the impartiality of the
court

As a general rule exceptions are not subject to prescription, for a
defendant cannot advance them when he will, but must wait till he is
sued : ' cum actor quidem in sua potestate habeat, quando utatur suo
iure, is autem, cum quo agitur, non habet potestatem quando con-
veniatur ' Dig. 44. 4. 5. 6. When, however, a party can assert his right by
either action or exception (as e. g. in dolus and metus), it is held by some
writers that he loses the latter in the same period of prescription as he

6o2 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

XIV.

DE REPLICATIONIBUS.

Interdum evenit, ut exceptio, quae prima facie iusta
videatur, inique noceat. quod cum accidit, alia allegatione
opus est adiuvandi actoris gratia, quae replicatio vocatur,
quia per eam repHcatur atque resolvitur vis exceptionis.
veluti cum pactus est aliquis cum debitore suo, ne ab eo
pecuniam petat, deinde postea in contrarium pacti sunt, id
est ut petere creditori liceat: si agat creditor et excipiat
debitor, ut ita demum condemnetur, si non convenerit, ne
eam pecuniam creditor petat, nocet ei exceptio, convenit enim
ita: namque nihilo minus hoc verum manet, licet postea in
contrarium pacti sunt, sed quia iniquum est creditorem ex-
cludi, replicatio ei dabitur ex posteriore pacto convento,

1 Rursus interdum evenit, ut replicatio, quae prima facie iusta
sit, inique noceat. quod cum accidit, alia allegatione opus

2 est adiuvandi rei gratia, quae duplicatio vocatur. Et si rursus
ea prima facie iusta videatur, sed propter aliquam causam
inique actori noceat, rursus allegatione alia opus est, qua

3 actor adiuvetur, quae dicitur triplicatio. Quarum omnium

loses the former, by others that even here the exception is indestructible ;
whence the two opposed maxims, * tant dure Faction, tant dure Texcep-
tion,' — ' quae ad agendum sunt temporalia, ad excipiendum sunt perpetua.'
The truth seems to be that if the right upon which both action and excep-
tion rest is in rem, the latter continues to exist even after the former is
barred, because the real right itself is not affected by the prescription ;
but if they both have their source in an obligation, the obligation
itself is extinguished by the prescription of the action (Dig. 46. i. 37;
13. 5. 18. i), and therefore the exception expires as well ; cf. Dig.
12. 2. 9. 4.

Tit. XrV. For the nature of duplicatio, replicatio, etc., and the form
which they assumed under the system of formulae see the reference in
the General Index to Excursus X inf. Gaius (iv. 126) further exemplifies
duplicatio by an action brought for the price of goods sold to which the
defendant pleads an exceptio that as they have not yet been delivered he
ought not to be condemned, and is met by the plaintiffs duplicatio that
the sale was made upon condition that there should be no delivery until
the price had been paid. For other illustrations see Dig. 3. 3. 48 ; 16. i.
32.2; 50. 17. 154.

§ 3. The use of exceptio here for duplicatio, replicatio, etc., is justified

Tit. 14.] DE REPLICATIONIBUS. 603

exceptionum usum interdum ulterius quam diximus varietas
negotiorum introducit : quas omnes apertius ex latiore di-
gestorum volumine facile est cognoscere, Exceptiones autem, 4
quibus debitor defenditur, plerumque accommodari solent
etiam fideiussoribus eius : et recte, quia, quod ab his petitur,
id ab ipso debitore peti videtur, quia mandati iudicio red-
dlturus est eis, quod hi pro eo solverint. qua ratione et si
de non petenda pecunia pactus quis cum reo fuerit, placuit
proinde succurrendum esse per exceptionem pacti conventi
illis quoque qui pro eo obligati essent, ac si et cum ipsis
pactus esset, ne ab eis ea pecunia peteretur. sane quaedam
exceptiones non solent his accommodari. ecce enim debitor
si bonis suis cesserit et cum eo creditor experiatur, defenditur
per exceptionem *nisi bonis cesserit:' sed haec exceptio
fideiussoribus non datur, scilicet ideo quia, qui alios pro de-
bitore obligat, hoc maxime prospicit, ut, cum facultatibus
lapsus fuerit debitor, possit ab his quos pro eo obligavit suum
consequi.

by Dig. 44. 1. 2. I ' replicatlones (a term employed by Ulpian and lulianus
instead of duplicatio) nihil aliud sunt, quam exceptiones a parte actoris,
quae exceptiones excludunt,' ib. 22 ' replicatio est contraria exceptio, quasi
exceptionis exceptio.'

§ 4. See on Bk. iii. 20. 6 supr. The expression in the text (plerumque
accommodari solent) is more correct than that in Dig. 44. i. 19 ^ omnes
exceptiones, quae reo competunt, fideiussori quoque, etiam invito reo,
competunt'

Some exceptiones are said rei, others personae cohaerere : the latter
(e. g. those beneficii competentiae and pacti de non petendo in personam)
avail only to the person immediately concerned ; the former, which are
the greater number, can be used by other persons also who can be sued
in lieu of or in addition to the one immediately liable, e.g. his heirs or
sureties : ' exceptiones quae personae cuiusque cohaerent non transeunt
ad alios, veluti ea, quam socius habet exceptionem, quod facere possit, vel

parens patronusve (Tit. 6. 38 supr.), non competit fideiussori rei

autem cohaerentes exceptiones etiam fideiussori competunt, ut rei iudi-
catae, doli mali, iurisiurandi, quod metus causa factum est. Igitur et si
reus pactus sit in rem, omnimodo competit exceptio fideiussori : interces-
sionis quoque exceptio, item quod libertatis onerandae causa petitur, etiam
fideiussori competit ' Dig. 44. 1.7.

It is on the principle stated in the text (quia qui alios .... suum con-
sequi) that the surety remains liable when his principal has died without
leaving any successor, Dig. 16. 3. i. 14; 46. 3. 95. i, or has undergone

6o4 JNSTITUTIONUM LIBRl QUATTUOR. [Lib. IV.

XV. .

DE INTERDICTIS.

Sequitur, ut dispiciamus de interdictis seu actionibus, quae
pro his exercentun erant autem interdicta formae atque

capitis deminutio maxima, Dig. 2. 8. 5. pr. ; and similarly the answer to
the question, whether a surety, when sued, can defend himself by plead-
ing that his principal has been in integrum restitutus, depends upon the
object for which the creditor obtained the guaranty ; e. g. if the principal
debtor is a minor, and the very object for which the creditor took the
surety was to protect himself against his restitutio 'propter minorem
aetatem,* the surety cannot plead the exceptio : * si, cum scirem minorem,
et ei fidem non haberem, tu fideiusseris pro eo, non est aequum fideius-
sori subveniri * Dig. 4. 4. 13. pr.

A surety cannot be deprived of any exceptio to which he has once
acquired a right by any unilateral act of his principal : ' sed verius est,
semel adquisitam fideiussori pacti exceptionem ulterius ei invito extor-
queri non posse * Dig. 2. 14. 62.

An exceptio in rem is one which can be pleaded against any one who
can sue on a given ground of action : an exceptio in personam is one
which can be advanced only against a determinate person or persons ;
e. g. the exceptio doli, and sometimes that based on a pactum de non
petendo, as where one of two or more correi credendi promises not to
sue the debtor.

Tit. XV. The term interdictum in origin means little more than edictum.
The legis actiones could not be employed for the prevention of anticipated
wrong, or for the punishment of actual breaches of the peace ; these were
matters to be dealt with by the imperium of the magistrate (consul or
praetor), who upon application made would issue an injunction (inter-
dictum) or order (decretum) disobedience to which, unless justified, would
be punished by imprisonment, fine, or other ordinary means at his dis-
posal for enforcing compliance with his command.

The chief purposes for which such interdicta were issued were the
prevention and punishment of offences against loca sacra and publica
(Dig. 43. I. I. pr.), and the protection of Possession as distinct from
Ownership : ' in legitimis actionibus nemo ex iure Quiritium possessionem
suam vocare audet, sed ad interdictum venit, ut praetor his verbis utatur ;
uti nunc possidetis,' etc Festus, s.v. Possessio. Thus some of them fall
within the sphere of public, others within that of private, law ; their chief
characteristic however in this period is, that they are a class of remedies
standing altogether outside and apart from the ordinary method of redress
by legis actio, the procedure of which was inapplicable to them.

Under the formulary system interdicts still continued to be issued in
relation to the same matters, especially possession, as before, but their
breach was no longer tried or punished in the old manner ; they were

Tit, 15.] DE INTERDICTIS. 605

conceptiones verborum, quibus praetor aut iubebat aliquid
fieri aut fieri prohibebat quod turn maxime faciebat, cum

brought into connection with the ordinary procedure by iudex and
formula, and became merely a peculiar mode of commencing an ordinary
action or congeries of ordinary actions. The praetor, on a part/s appli-
cation, issued the interdict, by which Mubebat aliquid fieri aut fieri
prohibebat.' Usually this was disregarded by the person to whom it was
addressed as a matter of course (Gains iv. 141) ; whereupon the latter
was brought before the magistrate by the plaintiff, and the matter took
the form of an action in which the question for decision was in effect
whether, in defying the interdict, the defendant had really broken
the law.

Interdicts which demanded production or restitution of property ( §1)
could be tried either by formula arbitraria or per sponsionem at the
defendant's option. Gains iv. 162-165; the latter procedure involved a
penal wager oif considerable amount, and consequently would perhaps be
preferred by a defendant who was convinced of the justice of his cause.
In interdicta prohibitoria there was no alternative; the trial must be
per sponsionem, and, where the interdict was double (Gains iv. 160, § 7
inf.), was peculiarly complicated, because each party played the rSle of
both plaintiff and defendant, 'nee quisquam praecipue reus vel actor
intellegitur, sed unusquisque tam rei quam actoris partes sustinet ; quippe
praetor pari sermone cum utroque loquitur' Gains loc. cit. The pro-
cedure upon a double is in £Eict a duplication of that upon a single
interdict when tried per sponsionem, with one peculiar feature (the fructus
licitatio) of its own. The circumstances under which a double interdict
lay were where two persons claimed each to be entitled to the exclusive
present possession of the same object, moveable or immoveable. Here,
on their appearance before him, the praetor awarded the possession, on
a rough and ready principle, to one or other of them ; if the object was
immoveable, and the interdict was uti possidetis, to the one who as a
matter of fact was in possession ' nee vi nee clam nee precario ' at that
moment ; if it was moveable, and the interdict was utrubi, to the one who
had been in possession the greater part of the year next immediately
preceding. Gains iv. 148-152. This award was immediately followed by
the issue of the interdict proper, which prohibited all disturbance of the
possession so adjudged, Gains iv. 160.

It is clear that this adjudication might be altogether at variance with
the true rights of the case, and it was to try the true rights of the case —
to determine which of the parties was really entitled to the possession in
law — that all the proceedings had in reality been taken. Possibly it may
have been hoped in the earlier time that the order would be obeyed
(Gains iv. 139), and had this been so interdicts would have formed a
typical illustration of a summary process. But, as a matter of fact, the
issue of the interdict was almost invariably followed at once by a fictitious
dispossession or ejectment (vis ex conventu), which was a formal breach

6o6 INSTITUTIONUM LIBRI QUAl ^ *UOR. [Lib. JV.

de possessione aut quasi possesstone inter aliquos con-
tendebatur.

of the praetor's order ; the party so disturbed brought the other at once
again before the magistrate, and here, in iure, the proper steps were
taken for getting the real question at issue between them decided by
action.

The first of these was to determine which of them should have
possession of the object in dispute pending litigation, and this was done
by putting such interim possession up to auction between them (fructus
licitatio) : the one who bid the highest sum obtained it, subject to the
condition of paying that amount to the other, in case he lost the suit,
as liquidated damages for having been in possession of property to
which he had no right during the continuance of the action. Payment
of this was secured by a ' fructuana stipulatio,' upon which the other
could sue by condictio ; or, as an alternative, he could bring a ' iudicium
fructuarium ' on the fructus licitatio itself.

So far provision had been made only for compensating the party who
was out of possession for the loss which he sustained in being deprived
of it pending litigation, supposing he could prove that of right it belonged
to him. For recovering the possession itself he had a indicium seca-
torium or Cascellianum, which was an actio arbitraria, enabling the
judge to condemn the party in possession to pay the value of the property
in dispute in default of restitution. Gains iv. 165, 166.

None of these proceedings, however, provided for the trial of the real
question at issue : they presupposed its decision in favour of the lower
bidder at the fructus licitatio, and were designed to enable him in that
event to recover the possession and damages for having been awhile
deprived of it. The real question— which of the parties was, at the issue
of the interdict, entitled in law to the possession (Gains iv. 166), was
brought to trial in the form of a wager, or rather of two wagers, as each
party played a double rSle. Now in Roman law a wager or a bet could
be made only by two stipulations, each of which was ground for an
independent action : the first party promised the second so much, if he
turned out to be in the wrong ; and then the second promised the first
the same sum in the contrary event. Thus the double interdict, in-
volving two wagers, involved four stipulations and four condictiones
certi upon them; and formulae were delivered to the index for the
simultaneous trial of six actions, vis. (a) four condictiones certi on the
two wagers ; (b) a fifth condictio certi on the fhictuaria stipulatio (or, as
alternative, the indicium fructuarium) ; and (c) an actio arbitraria, the
iudicium secutorium. If the index found in favour of the highest bidder
at the fructus licitatio, he absolved him on (b), {c)y and the two wa^iy^
condictions in which he was defendant, and condemned the other in the
two wager-condictions in which he was plaintiff; if he found against
him, he condemned him to pay the two wagers, the sum of the fhictuaria
stipulatio, and the value of the property in default of restitution; the
other party he absolved altogether ; Gaius iv. 167, 168.

Tit. 15.1 DE INTERDICTIS. 607

Summa autem divisio interdictorum haec est, quod aut 1
prohibitoria sunt aut restitutoria aut exhibitoria. prohi-
bitoria sunt, quibus vetat aliquid fieri, veluti vim sine vitio
possidenti, vel mortuum inferenti, quo ei ius erit inferendi, vel

With the disappearance of the formulary system this complicated
procedure necessarily passed away ; its very complication depended on
the formula. Justinian tells us himself (§ 8 inf.) that in his day interdicts
(stricto sensu) were no longer issued : in the opening paragraph of the
Title he speaks of interdicts ' seu actionibus quae pro his exercentur/
with which may be compared the Title of Dig. 43. i 'de interdictis
sive extraordinariis actionibus quae pro his competunt.' An interdict,
in his time, may fairly be described as the trial by ordinary action,
commenced in the ordinary way, of questions which in the formulary
period would have been tried in the complicated mode described by
Gains, and more particularly of questions relating to possession — ' inter-
dicta autem licet in extraordinariis iudiciis proprie locum non habent,
tamen ad exemplum eorum res agitur' Cod. 8. i. 3. The only features
of difference between them and an ordinary action are to be explained
by supposing that the questions on which they lay were thought to
deserve a somewhat more summary trial than others : hence the
directions in the code (e.g. 8. i. 4; 8. 2. 3; 8. 4. 8; 11. 47. 14), to
judges to try interdicts with all possible despatch, and the rule that the
operation of a decision on the interdict unde vi (which may be taken
as a type of the rest) shall not be suspended by appeal ; Cod. 7. 69.

In qualification of Justinian's description of interdicts under the earlier
system as 'formae atque conceptiones verborum,' it may be observed
that all orders of the praetor, like the sententia of a iudex, Cod. 7. 44. i,
had to be orally delivered, though the interdict, being as a rule extremely
precise and technical, was committed to a written form, breviculum
or periculam, apparently as early as Cicero (in Verrem iii. 79). There
may also be a reference to the termination of interdicts (stricto sensu) in
a regular action instituted by formula (' concepta verba, id est per for-
mulas' Gains iv. 30) : cf. Gains iv. 141, Dig. 25. 5. i. 2 ; 44. 7. 37. pr.

The following sections are concerned in the main with possessory
interdicts. In § i some are specified which relate to Public Law:
others protect personal freedom (interdictum 'de homine libero exhi-
bendo' Dig. 43. 29), family rights ('de liberis exhibendis et ducendis'
^ig- 43) 3o)» ^uid rights of property (' de arboribus caedendis, de glande
legenda' Dig. 43. 27 and 28) ; and finally, some were designed to ' sanc-
tion' the praetor's exercise of his own imperium : e.g. the interdicta 'ne
vis fiat ei qui in possessionem missus erit ' Dig. 43. 4, fraudatorium,
possessorium Gains iv. 145, and sectorium ib. 146.

For iuris quasi possessio cf. pp. 220, 335 supr., and for interdicts relating
to it see Dig. 43. 18 (de superfxciebus), 19 (de itinere actuque privato),
and the other Titles to 23 of the same book.

§ L Of course this whole classification of interdicts as prohibitoria.

6o8 INSTITUTIONUM LJBRI QUATTUOR. [Lib. IV.

in loco sacro aedificari, vel in flumine publico ripave eius
aliquid fieri, quo peius navigetur. restitutoria sunt, quibus
restitui aliquid iubet, veluti cum bonorum possessor! pos-
sessionem eorum, quae quis pro herede aut pro possessore
possidet ex ea hereditate, aut cum iubet ei, qui vi possessione
fundi deiectus sit, restitui possessionem, exhibitoria sunt,
per quae iubet exhiberi, veluti eum, cuius de libertate agitur,
aut libertum, cui patronus operas indicere velit, aut parent!
liberos, qui in potestate eius sunt, sunt tamen qui putant
proprie interdicta ea vocari, quae prohibitoria sunt, quia in-
terdicere est denuntiare et prohibere: restitutoria autem et
exhibitoria proprie decreta vocari : sed tamen optinuit omnia

restitutoria, and exhibitoria, being based upon the tenor of the praetor's
order, and derived from Gains (iv. 14O) 142), is in Justinian a mere
anachronism : interdicts aim at prevention, restitution, and production,
no more, and no less, than ordinary actions. In Dig. 43. i. i. i Ulpian
adds a fourth species — interdicts which are mixed — i.e. both prohibitoria
and exhibitoria.

The interdict forbidding violent ouster of an innocent possessor is that
known as uti possidetis, §-4 inf. That de mortuo inferendo is treated in
detail in Dig. 11. 8; its formula ran 'quo quave illi mortuum inferre
invito te ius est, quominus illi eo eave mortuum inferre et ibi sepelire
liceat vim fieri veto ; ' that of the third prohibitory interdict mentioned
in the text * in loco sacro focere inve eum immittere quid veto ' Dig. 43.
6 ; that of the fourth ' ne quid in flumine publico ripave eius immittas,
quo statio iterve navigio deterior sit fiat' Dig. 43. 12.

Restitutorium as applied to interdicts has the same wide meaning as
restituere in general ; it denotes, besides the restitution of possession, as
in unde vi, § 6 inf., (i) delivery of possession where none has preceded (as
In quorum bonorum, § 3 inf.) ; (2) the removal of a nuisance or demolition
of an unlawful structure, Dig. 43. 8. 2. 35 and 43.

For the meaning of exhibitorium and exhibere see on Tit. 6. 31 supr.
Theophilus illustrates the interdict by which the praetor ' iubet exhiberi
eum cuius de libertate agitur' by saying airofcpvnrciff rhv tfwv adcX^ov,
Xcyoov avTov tlpcu dovXop (r6Pf tfiov /SovAo/xcyov irepi rrjs avrov Bixdaaa-Oai
iXtvSipias : it was thus a different remedy from the interdictum de
homine libero exhibendo, which lay only for the production of a person
whose free status was not questioned : ' plane si dubitat, utrum liber an
servus sit, vel facit status controversiam, recedendum erit ab hoc inter-
dicto et agenda causa libertatis ; etenim recte placuit tunc demum hoc
interdictum locum habere, quotiens quis pro certo liber est : ceterum si
quaeratur de statu, non oportet praeiudicium fieri alienae cognition! ' Dig.

43- 29. 3. 7.
For the production of a libertus ' cui patronus operas indicere vdit '

Tit. 15.] DE INTERDICTIS. 609

interdicta appellari, quia inter duos dicuntur. Sequens 2
divisio interdictorum haec est, quod quaedam adipiscendae
possessionis causa comparata sunt, quaedam retinendae, quae-
dam reciperandae. Adipiscendae possessionis causa interdictum 3
accommodatur bonorum possessor!, quod appellatur quorum
bonorum, eiusque vis et potestas haec est, ut, quod ex his
bonis quisque, quorum possessio alicui data est, pro herede
aut pro possessore possideat, id ei, cui bonorum possessio data
est, restituere debeat. pro herede autem possidere videtur,
qui putat se heredem esse: pro possessore is possidet, qui
nullo iure rem hereditariam vel etiam totam hereditatem
sciens ad se non pertinere possidet. ideo autem adipiscendae
possessionis vocatur interdictum, quia ei tantum utile est, qui
nunc primum conatur adipisci rei possessionem: itaque si
quis adeptus possessionem amiserit eam, hoc interdictum ei
inutile est. interdictum quoque, quod appellatur Salvianum,

of. Gaius iv. 162. Certain services could be legally claimed from the
libertus by bis patron if they had been promised under oath ; see pp.
385, 402 supr. The interdict is not mentioned elsewhere in the Corpus
iuris.

For the pater's right to enforce production of children in his power see
^ig> 43* 30 9 the formula of the interdict ran ' qui quaeve in potestate
Titii est, si is eave apud te est dolove malo tuo factum est quominus
apud te esset, ita eum eamve exhibeas.'

Gaius (iv. 140) says that orders enjoining restitution or production
were not improperly called decreta ; cf. the lex de Gall, cisalp. ' decemet,
interdicetve.' For interdicere in the sense of * ordering ' cf. * ut navigare
liceat . . . interdicam ' Dig. 43. 14. i. pr. Justinian's derivation of inter-
dictum is reproduced by Theophilus, IvrtpbiKrov . . . i(rnv 6fukia Upairoipos
fitra^v dvo Ttv&v, and possibly is supported by Varro, ling. Lat. 4. 36 ' inter-
trtmentum ab eo, quod duo quae inter se trita et deminuta. . .' Isidorus*
etymology is different, ' interdictum est, quia ad tempus interim dicitur '
orig. 5. 25.

§ 2. This of course is a division only of Possessory interdicts ; it is
'sequens,' or subordinate; that into prohibitoria, etc., is 'summa' (§ i
supr.) or ' principalis ' (Gaius iv. 142).

§ 8. The formula of quorum bonorum is given in Dig. 43. 2. I
< quorum bonorum ex edictomeo illi possessio data est, quod de his bonis
pro herede aut pro possessore possides, possideresve si nihil usucaptum
esset, quodque dolo malo fecisti uti desineres possidere, id illi restituas.'
Two views are held as to its nature ; Savigny maintains that it was a
definitive remedy by which the bonorum possessor obtained a judicial
recognition of his title as praetorian heir, while most other writers on

Rr

6lO JNSTITUTIONUM LIBRI QUATTUOR. [Ub.IV.

adipiscendae possessionis causa cbmparatum est eoque utitur
dominus fundi de rebus coloni, quas is pro mercedibus fundi

the subject are of opinion that it was merely a summary and provisional
machinery by which he was enabled to get actual possession of the
corporeal property belonging to the deceased's universitas iuris, his right
to die universitas itself being established by hereditatis petitio (direct or
possessoria, according as he was civil l^eir or not). The latter view seems
favoured by the text above, and to be conclusively proved by Dig. 43. 2.
2 Mnterdicto quorum bonorum debitores hereditarii non tenentnr, sed
tantum corporum possessores/ and Cod. 8. 2. 3 'ergo iubemus, ut
omnibus frustrationibus amputatis per interdictum quorum bonorum in
petitorem corpora transferantur, secundaria actione proprietatis non
exdusa.'

No one could apply for the interdict, even though he were civil heir,
(Gains iii. 34), who had not by agnitio obtained bonorum possessio. On
application made by such person it would be directed against any one who
was in possession of corporeal property belonging to the inheritance
either pro herede or pro possessore. Possessores pro herede include
(besides persons *qui putant se heredes esse*) others who had made agnitio,
Dig. 5. 3. II. pr. ; ib. 3o. 13, or to whom the inheritance or part of it had
been transferred per fideicommissum, ib. 13. 5-7, or who had bought the
inheritance in whole or part, or had so received it dotis causa, ib. 13. 4.
Possession pro possessore is defined in Dig. 5. 3. 11. 1-13. pr. 'pro pos-
sessore vero possidet praedo, qui interrogatus, cur possideat, responsurus
sit, quia possideo, nee ullam causam possessionis possit dicere, et ideo fur
et raptor petitione hereditatis tenentur.'

As appears from the text of the interdict cited above, any one could be
proceeded against by it who had fraudulently got rid of the possession of
res hereditariae, and even a completed usucapion would not protect the
possessor, the senatusconsult of Hadrian (Gains ii. 57), which had been
passed primarily in the interests of civil heirs, having been extended also
to praetorian successors. The grantee of the interdict would obtain
possession of the object in dispute on proving not only that he had
accepted the succession, but that no one else had a better right than he :
' quamvis bonorum possessionem agnovisti, non aliter possessor constitui
poteris quam si te defuncti filium esse probaveris' Cod. 8. 2. i.

For the interdictum Salvianum of. p. 550 supr. Its relation to the
actiones Serviana and hypothecaria seems identical with that of quorum
bonorum to hereditatis petitio; the plaintiff, alleging that he has a
hypothec over specific property of his debtor, which he fears may be
made away with before he can prove his right, obtains possession by the
interdict, and then proves his right by the action; 'in Salviano inters
dicto, si in fundum conmiunem duorum pignora sint ab aliquo invecta,
possessor vincet, et erit iis descendendum ad Servian um iudicium ' Dig.
43. 33. 2. It would appear that the interdict lay not only against the
hypothecary debtor himself, but against any one who had possession of

Tit 15.] DE INTERDICTIS. 611

pignori futuras pepigisset. Retinendae possessionis causa 4
comparata sunt interdicta uti possidetis et utrubi, cum ab
utraque parte de proprietate alicuius rei controversia sit et
ante quaeritur, uter ex litigatoribus possidere et uter petere
debeat. namque nisi ante exploratum fuerit, utrius eorum
possessio sit, non potest petitoria actio institui, quia et civilis
et naturalis ratio facit, ut alius possideat, alius a possidente
petat. et quia longe commodius est possidere potius quam
petere, ideo plerumque et fere semper ingens existit contentio
de ipsa possessione. commodum autem possidendi in eo est,
quod, etiamsi eius res non sit qui possidet, si modo actor
non potuerit suam esse probare, remanet suo loco possessio :
propter quam causam, cum obscura sint utriusque iura, con-
tra petitorem ludicari solet. Sed interdicto quidem uti pos-
sidetis de fundi vel aedium possessione contenditur, utrubi
vero interdicto de rerum mobilium possessione. quorum
vis et potestas plurimam inter se differentiam apud veteres
habebat: nam uti possidetis interdicto is vincebat, qui in-
terdicti tempore possidebat, si modo nee vi nee clam nee
precario nanctus fuerat ab adversario possessionem, etiamsi
alium vi expulerit aut clam abripuerit alienam possessionem
aut precario rogaverat aliquem, ut sibi possidere liceret:
utrubi vero interdicto is vincebat, qui maiore parte eius anni
nee vi nee clam nee precario ab adversario possidebat, hodie
tamen aliter observatur: nam utriusque interdicti potestas
quantum ad possessionem pertinet exaequata est, ut ille
vincat et in re soli et in re mobili, qui possessionem nee vi

the property subject to the hypothec: Kara waprbs Karixovros rh rou
leoXtfvoi) irpdy flora KttnfBritnTai t6 SoX/Sidyeioy Iwrtp^iKTOv The<^h. ; cf. Dig,
43* 33* I* {' ct adversus extraneos . • . dari debebit ') : though Cod. 8. 9. i
is irreconcileable : 'non interdicto Salviano^ id enim tantummodo ad-
versus conductorem debitoremve competit.'

Other examples of interdicts adipiscendae possessionis given by Gaius
(iv. 145-6) are those called possessorium and sectorium, the first being
the remedy of the highest bidder in the bankruptcy procedure called
bonorum venditio, p. 389 supr., the second that of the sector or purchaser
at a state auction.

§ 4. Opinions have differed very much as to the true nature and
purpose of the interdicts uti possidetis and utrubi. It will have been
obvious from the account given of them in a preceding note on this Title,

Kr 2

6 1 a INSTITUTIONUM LIBRI Q UA TTUOR. [Lib. IV.

nee clam nee precario ab adversario litis contestationis tcm-
5 pore detinet. Possidere autem videtur quisque non solum,

and from the opening words of this section, which correspond exactly
with Gains iv. 148, that their original object was to determine a question
preliminary to a vindicatio — which of two parties, each of whom claims to
be entitled to the possession of specific property, is actually to have the
possession during the vindicatio itself, and so play the r6U of defendant ?
The commodum possessionis, or advantage which the defendant had
over the plaintiff, is clearly put in the text ; if the latter could not prove
his case, the possession remained with him ; ' in pari causa possessor
potior' Dig. 50. 17. 128. pr. ; ^av mH t^ ^«vyovri Koi rf Bwkovti ^^^^
lo-oi, 6 0€vya>v ycic^, Aristotle, probi. 29. 12, 'necessitas probandi incumbit
illi, qui agit' Dig. 22. 3. 21. Of course the party vanquished in the
possessory process might acquiesce in the decision there, and not push
matters to a vindicatio at all ; but the true function of the interdict was
to clear the way for the action.

This, in &ct, is the main purpose of these two interdicts under Jus-
tinian. It is uncertain which of two parties, each of whom claims to be
dominus of specific property, shall be defendant in the real action which
is to settle the question of dominium ; and this is determined by a
preliminary process, the interdict, which results in the award of the
possession (and therefore of the rSie of defendant) to the one who at
litis contestatio (i. e. at the time when the hearing began) actually had
possession without having obtained it by violence, secrecy, or permission,
from his adversary; if the latter could prove that his possession was
defective in any of these respects, the possession was adjudged to him
instead, and to this extent the interdict was recuperandae, not retinendae
possessionis. Dig. 43. 17. i. 9 ; ib. 3. pr.

It would seem too that uti possidetis, if not utrubi as well, had in
course of time come to be employed when one person interfered in any
way whatsoever with the possession of another, much in the same sort of
manner as the English assize of Novel Disseisin came to lie against any
one who in any way whatsoever interfered with the enjoyment of the
freehold, and even for disturbance of common (Dig. 43. 17. 3. 4). In
this form it had lost its double character, and was in effect a remedy ex
delicto. Both interdicts are said to be prescribed in a year ; by this is
meant that where brought on an actual disturbance of possession, they
must be brought within a year of the date of such disturbance, Dig. 43.
17. I. pr., except so far as the defendant had been enriched by his act,
Dig. 43. I. 4, and that no vitium possessionis (vi, clam, precario) could be
advanced which did not fall within a year next immediately preceding
litis contestatio in the interdict.

The date of the assimilation of utrubi to uti possidetis in the point
noticed at the end of the section is uncertain : that It had not been
effected so early as Diocletian is clear from fragm. Vat. 293, so that the
passage in Dig. 43. 31 attributed to Ulpian must be an interpolation.

§ 6. For the Roman theory of Possession in general see Excursus

Tit. 15.] DE INTERDICTIS. 613

si ipse possideat^ sed et si eius nomine aliquis in possessione
sit, licet is eius iuri subiectus non sit, qualis est colonus et
inquilinus : per eos quoque, apud quos deposuerit quis aut
quibus commodaverit, ipse possidere videtur: et hoc est,
quod dicitur retinere possessionem posse aliquem per quem-
libet^ qui eius nomine sit in possessione. quin etiam animo
quoque retineri possessionem placet, id est ut, quamvis neque
ipse sit in possessione neque eius nomine alius, tamen si non
relinquendae possessionis animo, sed postea reversurus inde
discesserit, retinere possessionem videtur. adipisci vero pos-
sessionem per quos aliquis potest, secundo libro exposuimus.
nee uUa dubitatio est, quin animo solo possessionem adipisci
nemo potest. Reciperandae possessionis causa solet interdict, 6
si quis ex possessione fundi vel aedium vi deiectus fuerit:
nam ei proponitur interdictum unde vi, per quod is qui deiecit
cogitur ei restituere possessionem, licet is ab eo qui vi deiecit
vi vel clam vel precario possidebat. sed ex sacris consti-
tutionibus, ut supra diximus, si quis rem per vim occupaverit,
si quidem in bonis eius est, dominio eius privatur, si aliena,
post eius restitutionem etiam aestimationem rei dare vim
passo compellitur. qui autem aliquem de possessione per
vim deiecerit, tenetur lege lulia de vi privata aut de vi publica :
sed de vi privata, si sine armis vim fecerit, sin autem cum
armis eum de possessione expulerit, de vi publica. armorum

III supr. The following texts will help to elucidate the present pas-
sage:

Dig. 41. 2. 9 'generaliter quisquis omnino nostro nomine sit in fos*
sessioru^ veluti procurator, hospes, amicus, nos possidere videmur,' ib.
10. I * aliud est ... . possidere^ longe aliud in possessione esse^ ib. 25. i
' nee inter colonum et servum nostrum, per quern possessionem retinemus,
quicquam interest,' Gaius iv. 153 ^quinetiam plerique putant, animo
quoque retineri possessionem, quod nostrorum verbi gratia aestivorum et
hibemorum saltuum animo solo, quia voluerimus, ex quo discessimus,
reverti, retinere possessionem videamur,' Paul. sent, rec 5. 2. i ' (pos-
sessionem) retinere nudo animo posstunus, sicut in saltibus hibemis
aestivisque contingit,' Dig. 41. 2. 3. i 'apiscimur possessionem corpore
et animo, neque per se animo, aut per se corpore,' ib. 8.

For the diflerence between colonus and inquilinus see p. 438 supr. The
reference for acquisition of possession through others is to Bk. ii. 9. 4
supr.

§ 6. Under the older law there were two interdicts for recovering

6 14 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

aiitem appellatione non solum scuta et gladfos et galeas
7 significari intellegimus, sed et fustes et lapides. Tertia divisio
interdictorum haec est, quod aut simplicia sunt aut duplicia.
simplicia sunt, veluti in quibus alter actor, alter reus est :
qualia sunt omnia restitutoria aut exhibitoria : namque actor
est, qui desiderat aut exhiberi aut restitui, reus is, a quo de-
sideratur, ut restituat aut exhibeat. prohibitoriorum autem
interdictorum alia simplicia sunt, alia duplicia. simplicia sunt,
veluti cum prohibet praetor in loco sacro vel in flumine
publico ripave eius aliquid fieri (nam actor est, qui desiderat,
ne quid fiat, reus, qui aliquid facere conatur): duplicia sunt
veluti uti possidetis interdictum et utrubi. ideo autem du-
plicia vocantur, quia par utriusque litigatoris in his condicio
est nee quisquam praecipue reus vd actor intellegitur, sed
unusquisque tam rei quam actoris partem sustinet.

possession of land or buildings from which a person had been violently
ejected (ad duas dissimiles res duo disiuncta interdicta sunt, Cic. pro
Caec. 32) ; one, the ordinary interdict unde vi, applying where there had
been no use of weapons (vis quotidiana) ; the other, interdictum de vi
armata, where there had.

In the first case the ejector could plead the exceptio vitiosae pos-
sessionis, i. e. the grantee of the interdict was successful only if he could
show that he had not himself obtained possession vi, clam, or precario
from the other (lex Thoria 7, Cic. pro TuUio 44-5, Gains iv. 154). In
the second the mode in which his possession had originated was im-
material, Gains iv. 155. This difference, however, as appears from the
text, had disappeared in Justinian's time, possibly in consequence of
Valentinian's enactment (Cod. 8. 4. 7) here referred to, for which see on
Tit. 2. I supr. Originally too only the first of these interdicts had been
subject to prescription in a year, Cic. ad Fam. 15, 16, but under Jus-
tinian this distinction too had ceased to exist, and there was only one
interdict de or unde vi, which could be brought after a year had elapsed
from the ejectment only so far as the ejector had been thereby enriched,
Dig. 43. 16. i.pr. Justinian allowed unde vi to be brought even where
land had been entered upon in the possessor's absence. Cod. 8.4. 11.

The limitation of this interdict to res immobiles (Paul. sent, rec 5. 6.
5, Dig. 43. 16. I. 6) seems to hold also under Justinian. The action
under the constitution of Valentinian (which applied also to moveables)
would be one of the actions which lay upon theft in addition to the actio
furti, Tit. I. 19 and notes supr. For the lex lulia de vi see Tit. 18. 8 and
notes inf.

§ 7. For the sense in which uti possidetis and utnibi were ' double ' in
the fonnulary period see note p. 606 supr. Under Justinian they zx^

Tit. 16.] DE POENA TEMERE LITIGANTIUM, 615

De ordine et veteri exitu interdictorum supervacuum est 8
hodie dicere : nam quotiens extra ordinem ius dicitur, qualia
sunt hodie omnia indicia, non est necesse reddi interdictum,
sed perinde iudicatur sine interdictis, atque si utilis actio ex
causa interdict! reddita fuisset.

XVL

DE POENA TEMERE LITIGANTIUM.

Nunc admonendi sumus magnam curam egisse eos, qui iura
sustinebant, ne facile homines ad litigandum procederent:
quod et nobis studio est. idque eo maxime fieri potest, quod
temeritas tarn agentium quam eorum cum quibus ageretur
modo pecuniaria poena, modo iurisiurandi religione, modo
metu infamiae coercetur. Ecce enim iusiurandum omnibus 1
qui conveniuntur ex nostra constitutione defertur : nam reus
non aliter suis allegationibus utitur, nisi prius iuraverit, quod
putans se bona instantia uti ad contradicendum pervenit. at
adversus infitiantes ex quibusdam causis dupli vel tripli actio
constituituf, veluti si damni iniuriae aut legatorum locis ve-
nerabilibus relictorum nomine agitur. statim autem ab initio
pluris quam simpli est actio veluti furti manifesti quadrupli,
nee manifesti dupli: nam ex his causis et aliis quibusdam,
sive quis neget sive fateatur, pluris quam simpli est actio,
item actoris quoque calumnia coercetur: nam etiam actor
pro calumnia iurare cogitur ex nostra constitutione. utriusque
etiam partis advocati iusiurandum subeunt, quod alia nostra
constitutione comprehensum est. haec autem omnia pro

double, as is clear from the text, because there is no difference, as in
ordinary actions and simple interdicts, between the respective rSle of
plaintiff and defendant ; the burden of proof lies upon the two parties
equally, and whichever proves that he has not obtained possession vi,
dam, or precario from the other will win, and the other be condemned ;
' hi, quibus competit (interdictum) et actores et rei sunt* Dig. 43. 17. 3. i.

§ 8. For interdict procedure in the earlier period and under Justinian
see the first note upon this Title.

Tit XVI. 1. In the time of Gains the defendant could be compelled to
swear ' non calumniae causa se ad inficias ire ' only where he was not
restrained from vexatiously defending the action by some other re*

6l6 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

veteris calumniae actione introducta sunt, quae in desuetu-
dinem abiit, quia in partem decimam litis actorem multabat>
quod nusquam factum esse invenimus : sed pro his introductum
est et praefatum iusiurandum et ut improbus litigator etiam

cognised motive, such as the penal sponsio in condictio certi and the
actio de constituta pecunia, the duplication of damages in some actions
on denial of liability, or the penal nature of the action itself, Gains iv.
172. By Cod. 2. 59. 2 Justinian required the oath from all defendants
and their advocates.

By a defendant's ' allegationes ' are to be understood the evidence and
arguments in support of his contradictio, Cod. 3. i. 14. i. The oath was
taken on the Bible, ' sacrosanctae scripturae ' Cod. loc. cit. : 2. 59. 2. pr.
The primary juristic signification of * instantia * seems to be * keenness,'
'energy' ('diligenti studio instantiaque complere opera' Cod. 8. 12. 22,
' stricta instantia falsum arguere paratus ' Cod. 9. 22. 24), whence it comes
to mean, as here, a contention (' believing that his contention in defence is
honest ').

For the actions in which it was said ' adversus inficiantes lis crescit in
duplum' see on Bk. iii. 27. 7 supr. : cf. Tit. 6. 19 and 26 supr. The
actions to which Justinian alludes, in which 'adversus inficiantem lis
crescit in triplum,' are unknown ; those on furtum conceptum and obla-
tum (p. 516 supr.) were in triplum *sive quis neget sive fateatur,' and the
triple penalty in Tit. 6. 24 supr. did not apparently result from a denial
of liability.

In the earlier procedure vexatious litigation in plaintiffs had been
restrained in four ways : ' actoris quoque calumnia coeroetur mode
calumniae iudicio, mode contrario, modo iureiurando, modo resti-
pulatione ' Gaius iv. 174. In actions where there was a sponsio poenalis,
the defendant could require that the plaintiff should promise him by
restipulatio an equivalent sum in the event of his being unable to prove
his case. In other suits, if absolved, he could often bring against
him an action in the nature of 'malicious prosecution.' By the actio
calumniae he might recover ^ (in interdicts i) of the value in dispute
in the previous action, but had to prove that the other had sued him
knowing that he had no ground of action, 'calumnia enim in adfectu
est' Gaius iv. 178. By the contrarium indicium, which was an alter-
native to this, but which lay only against an unsuccessful plaintiff* in
certain specific actions (e.g. iniuriae, Gaius iv. 177), and in which it was
unnecessary to prove malice, he could similarly recover damages
equivalent to some fraction of the amount claimed in the previous
action. Neither of these indicia, however, lay, nor could the defendant
claim a penal restipulatio, if he had compelled the plaintiff to take the
iusiurandum calumniae, i. e. to swear that to the best of his belief he had
a good ground of action, Gaius iv. 181.

Under Justinian the penal sponsio and restipulatio in the two actions
specified had disappeared, and, as is remarked in the text, the iudicia

Tit. i6.] DE POENA T EM ERE UTIGANTIUM. 617

damnum et impensas litis inferre adversario suo cogatur. Ex 2
quibusdam iudiciis damnati ig^ominiosi iiunt, veluti furti, vi
bonorum raptorum, iniuriarum, de dolo, item tutelae, mandati,
depositi, directis non contrariis actionibus, item pro socio, quae
ab utraque parte directa est et ob id quilibet ex sociis eo
iudicio damnatus ignominia notatur. sed furti quidem aut
vi bonorum raptorum aut iniuriarum aut de dolo non solum
damnati notantur igfnominia, sed etiam pacti, et recte; plu-
rimum enim interest, utrum ex delicto aliquis an ex contractu
debitor sit.

calumniae and contrarium were also obsolete, though they had still been
in use in the age of Diocletian, Cod. Hermog. 5. 3. In lieu of these
precautions the plaintiff had in all cases 'pro calumnia iurare' Cod. 2.
59. 3. pr., and the unsuccessful litigant had to pay his adversary's costs :
*sive autem alterutra parte absente sive utraque praesente lis fuerit
decisa, omnes iudices, qui sub imperio nostro constituti sunt, sciant in
expensarum causa victum victori esse condemnandum, quantum pro
solitis expensis litium iuraverit, non ignorantes quod si hoc practer-
miserint, ipsi de proprio huiusmodi poenae subiacebunt et reddere earn
parti laesae coartabuntur ' Cod. 3. i. 13. 6.

§ 2. For the meaning of existimatio see on Bk. i. 16. 5 supr. As a
matter of fact, minutio existimationis, which was generically denoted by
the term ignominia, most usually resulted from a citizen's getting into
a position in which the Edict branded him with infamia, Dig. 3. 2. i.
Infamia attached, in consequence of a judicial sentence or something
equivalent (infamia iuris) to all persons condemned in a indicium pub-
licum (Dig. 48. I. 7), or in any of the civil actions specified in the text
(to which must be added the delictual action for sepulcri violatio, and,
for the older law, the actio fiduciae, Gaius iv. 182), or found guilty of
usury, Cod. 2. 12. 20, or ignominiously discharged from military service
(Dig. 3. 2. 2), guardians removed as suspecti ob dolum, Bk. i. 26. 6 supr.,
and bankrupts (p. 391 supr.). Other persons became infames apart
from anything in the nature of a judicial sentence (infamia immediata),
e.g. wives taken in adultery. Dig. 23. 2. 43. 12 and 13; guardians or
curators who married their female wards while under the age of 26,
ib. 66. pr. ; and persons who violated a transactio (p. 401 supr.) made
under oath, Cod. 2. 4. 41.

Under the Republic the consequence of infiEunia had been serious ; the
infamis lost the political rights of civitas, suffragium and honores ; was
disabled from applying for the magistrate's judicial assistance except on
behalf of himselif and specified other persons ('postulare: postulare
autem est, desiderium suum vel amici sui in iure apud eum, qui iuris-
dictioni praeest, exponere vel alterius desiderio contradicere ' Dig. 3. i. i.
2, 'hoc edicto continentur etiam omnes, qui edicto praetoris ut infsunes

6i8 INSTITUTIONUM LIBRI QUATTVOR. [Lib. IV.

3 Omnium autem actionum instituendarum principium ab ea
parte edicti proiiciscitur, qua praetor edicit de in ius vocando :
utique enim in primis adversarius in ius vocandus est, id est ad
eum vocandus est, qui ius dicturus sit. qua parte praetor pa-
rentibus et patronis, item liberis parentibusque patronorum et
patronarum hunc praestat honorem, ut non aliter liceat liberis
libertisque eos in ius vocare, quam si id ab ipso praetore postu-
laverint et impetraverint : et si quis aliter vocaverit, in eum
poenam solidorum quinquaginta constituit.

XVII.

DE OFFICIO lUDICIS.

Superest, ut de officio iudicis dispiciamus. et quidem in
primis illud observare debet index, ne aliter iudicet, quam

1 legibus aut constitutionibus aut moribus proditum est. Et
ideo si noxali iudicio addictus est, observare debet, ut, si
condemnandus videbitur dominus, ita debeat condemnare:
'Publium Maevium Lucio Titio decern aureis condemno aut

2 noxam dedere.' Et si in rem actum sit, sive contra petitorem

notantur : qui omnes nisi pro se et certis personis ne postulent,' ib. 8),
and also was to a large extent incapable of being represented himself by
an agent in legal process, Tit. 13. 1 1 and notes supr. ; finally certain matri-
monial disabilities were imposed on him by the lex lulia de maritandis,
Ulpian, reg. 13. Under Justinian, however, most of these consequences
were inoperative or obsolete.

For the meaning of actio directa in this connection see p. 397 supr. ; for
' pacti ' cf. Dig. 3. 2. 6. 3 ' pactum sic accipimus, si cum pretio quanto-
cunque pactus est,' Cod. 2. 12. 18 ' verum pactos eos demum, qui uUos
adversariis nummos pro mala conscientia ex transactione numerassent, in
hac causa placuit intellegi.* The compounding of a delict for money is as
bad as being found guilty of having committed it

§ 8. For the form of summons under Justinian see on Tit. 6. 24 supr.,
and for the summons of parents and patrons without the praetor's per-
mission cf. Gains iv. 46.

Tit. XVII. 1. For noxal actions see Til. 8 supr. and notes : cf. Dig.
42. I. 6. I 'decem aut noxae dedere condemnatus iudicati in decern
tenetur, fecultatem autem noxae dedendi ex lege accipit : at is qui stipu-
latus est decem aut noxae dedere non potest decem petere.'

§ 2. A defendant would be entitled to time for a restitutio, that is to say,
his application would not be put down to frustratio, only where the

Tit. 17.1 DE OFFICIO lUDlCIS, 619

ludicavit, absolvere debet possessorem, sive contra possessorem,
lubere eum debet, ut rem ipsam restituat cum fructibus. sed
si in praesenti neget se possessor restituere posse et sine
frustratione videbitur tempus restituendi causa petere, indul-
gendum est ei, ut tamen de litis aestimatione caveat cum
fideiussore, si intra tempus quod ei datum est non restituisset.
et si hereditas petita sit, eadem circa fructus interveniunt,
quae diximus intervenire in singularum rerum petitione.
illorum autem fructuum, quos culpa sua possessor non per-
ceperit, in utraque actione eadem ratio paene fit, si praedo
fuerit. si vero bona fide possessor fuerit, non habetur ratio
consumptorum neque non perceptorum: post inchoatam
autem petitionem etiam illorum ratio habetur, qui culpa
possessoris percepti non sunt vel percepti consumpti sunt.
Si ad exhibendum actum fuerit, non sufficit, si exhibeat rem 3
is cum quo actum est, sed opus est, ut etiam causam rei
debeat exhibere, id est ut eam causam habeat actor, quam
habiturus esset, si, cum primum ad exhibendum egisset,
exhibita res fuisset: ideoque si inter moras usucapta sit res
a possessore, nihilo minus condemnatur. praeterea fructuum
medii temporis, id est eius, quod post acceptum ad exhi-
bendum iudicium ante rem iudicatam intercessit, rationem
habere debet index, quod si neget is, cum quo ad ex-
hibendum actum est, in praesenti exhibere se posse et tempus
exhibendi causa petat idque sine frustratione postulare videa-
tur, dari ei debet, ut tamen caveat se restituturum : quod si
neque statim iussu iudicis rem exhibeat neque postea ex-

obstacle was natural, ' neque tantam in ipsius debitoris persona facultas
dandi deest,' cf. Dig. 45. i. 73. pr. 'interdum pura stipulatio ex re ipsa
dilationem capit, veluti si id quod in utero sit aut fructus fiituros aut
domum aedificari stipulatus sit,' ib. 137. 4 'sed haec recedunt ab im-
pedimento naturali et respiciunt ad facultatem dandi : est autem facultas
personae commodum incommodumque, non rerum quae promittuntur.'

For the difference between a bona fide and a mala fide possessor
(praedo) in respect of liability for fructus see on Bk. ii. i. 35 supr. The
former's mental attitude was by a fiction represented as having changed
at litis contestatio : ' bonae fidei possessor postea (i. e. petita hereditate)
et ipse praedo est' Dig. 5. 3. 31. 3.

§ 8. For the nature of the actio ad exhibendum see on Tit. 6. 31 supr.
' Causa ' in this connection does not seem to include fructus, which are

620 INSTITUTIONUM UBRI QUATTUOR. [Lib. IV.

hibiturum se caveat, condemnandus sit in id, quod actoris

4 intererat ab initio rem exhibitam esse. Si familiae erciscundae
iudicio actum sit, singulas res singulis heredibus adiudicare
debet et, si in alterius persona praegravare videatur adiudi-
catio, debet hunc invicem coheredi certa pecunia, sicut iam
dictum est^ condemnare. eo quoque nomine coheredi quisque
suo condemnandus est, quod solus fructus hereditarii fundi
percepit aut rem hereditariam corrupit aut consumpsit. quae
quidem similiter inter plures quoque quam duos coheredes

5 subsequuntur. Eadem interveniunt et si communi dividundo
de pluribus rebus actum fuerit. quod si de una re, veluti de
fundo, si quidem iste fundus commode regionibus divisionem
recipiat, partes eius singulis adiudicare debet et, si unius pars
praegravare videbitur, is invicem certa pecunia alteri con-
demnandus est: quod si commode dividi non possit, vel
homo forte aut mulus erit de quo actum sit, uni totus adiu-

6 dicandus est et is alteri certa pecunia condemnandus. Si
finium regundorum actum fuerit, dispicere debet iudex, an

mentioned later in the paragraph ; but, as this action as a rule only paved
the way to further litigation, it rather denotes (as seems clear from the
illustration in the text, ' ideoque si . . . condemnabitur ') advantages of
legal position : ' in eadem causa in qua fuit, cum iudicium acciperetur, ut
quis copiam rei habens possit exsequi actione in nullo casu laesa ' Dig.
lo. 4. 9. 5. Usucapion was not properly interrupted by litis contestatio
with the possessor, but, if the plaintiff proved that, at that date, he
was owner, he would still be condenmed, Dig. 6. i. 18 ; 41. 4. 2. 21 ;

41. 5- 2- pr.

§ 4. For the general nature of the iudicia divisoria spoken of in this
and the two following paragraphs see on Tit 6. 20 supr., and for this
action in particular p. 458 supr. Debts owed by and to the hereditas were
ipso iure divided among the coheredes : ' ea quae in nominibus sunt non
recipiunt divisionem, cum ipso iure in pordones hereditarias ex lege
duodecim tabularum divisa sunt ' Cod. 3. 36. 6, though the judge might
properly appoint any one of the heirs as the fit person to sue or be sued
on specific claims or liabilities ' partim suo partim procuratorio ncmine,
quia saepe et solutio et exactio partium non minima incommoda habet '
Dig. 10. 2. 3. Certain other res hereditariae were exempted from par-
tition, cither because they were in their very nature indivisible (e.g.
praedial servitudes) or from their having already been spedficaliy
assigned to this or that heres by the testator. Dig. ib. 44. pr.

§ 6. For the actio communi dividundo cf. Bk. iii. 27. 3 supr.

I e. For the actio finium regundorum see on Tit. 6, 20 supr. * Hoc

Tit. i8.] DE PUBLICIS lUDICIIS. 6ai

necessaria sit adiudicatio. quae sane uno casu necessaria est,
si evidentioribus iinibus distingui agros commodius sit, quam
olim fuissent distinct! : nam tunc necesse est ex alterius agro
partem aliquam alterius agri domino adiudicari. quo casu
conveniens est, ut is alteri certa pecunia debeat condemnari.
eo quoque nomine damnandus est quisque hoc iudicio, quod
forte circa fines malitiose aliquid commisit, verbi gratia quia
lapides finales furatus est aut arbores finales cecidit. con-
tumaciae quoque nomine quisque eo iudicio condemnatur,
veluti si quis iubente iudice metiri agros passus non fuerit.
Quod autem istis iudiciis alicui adiudicatum sit, id statim 7
eius fit cui adiudicatum est.

XVIII.

DE PUBLICIS iudiciis.

Publica indicia neque per actiones ordinantur nee omnino
quidquam simile habent ceteris iudiciis, de quibus locuti
sumus, magnaque diversitas est eorum et in instituendis et
in exercendis. Publica autem dicta sunt, quod cuivis ex i

iudicium locum habet in confinio praediorum rusticonim ' Dig. lo. i. 4.
la The wilful removal of boundaries was punished extra ordinem,
PauL sent, rec i. 16 ; 'quod si per ignorantiam aut fortuito lapides furati
sunt, sufficit eos (servos) verberibus decidere' Dig. 47. 21. 2.

§ 7. Hence adiudicatio is a civil mode of acquisition, p. 227 supr. * ad-
iudicatione dominium nanciscimur per formulam familiae erciscundae,
communi dividundo, finium regundorum' Ulpian, reg. 19. 16.

Tit. XV ill. For the general history of Roman criminal law see
Maine's Ancient Law, chap. x. Indicia publica in the later period were
commenced by an indictment or information (' causa criminis ordinata,
id est, inscriptionibu9 depositis ' Cod. 9. 45. i), the form of which is pre-
served in Dig. 48. 2. 3. pr. 'apud ilium praetorem vel proconsulem L.
Titius professus est se Maeviam lege lulia de adulteriis ream deferre,
quod dicat eam cum Gaio Seio in civitate ilia, domo illius, mense illo,
consulibus illis adulterium conmiisisse.' But the procedure in Justinian's
time being altogether extra ordinem, i. e. that prescribed for the several
indicia publica by statute having fallen into disuse, the differences be«
tween actions and prosecutions were not so marked as might be inferred
firom the text above.

§ 1. Plerumque belongs to ' cuivis ex populo.' Impuberes, infames,
and the very poor were as a rule disabled from prosecutingi Dig. 48. 2.

6m INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

2 populo exsecutio eorum plerumque datur. Publicorum iudi-
ciorum quaedam capitalia sunt, quaedam non capitalia.
capitalia dicimus, quae ultimo supplicio adficiunt vel aquae
et ignis interdictione vel deportatione vel metallo : cetera si
qua infamiam irrogant cum damno pecuniario, haec publica

3quidem sunt, non tamen capitalia. Publica autem iudicia
sunt haec. lex lulia maiestatis, quae in eos, qui contra im-
peratorem vel rem publica m aliquid moliti sunt, suum vigorcm
extendit. cuius poena animae amissionem sustinet et me-

4 nioria rei et post mortem damnatur. Item lex lulia de
adulteriis coercendis, quae non solum temeratores alienarum
nuptiarum gladio punit, sed etiam eos, qui cum masculis

8 sq., as also were women and soldiers unless the crime was committed
against either themselves or some near relation, Cod. 9. i. 4 and 8.

§ 2. ' Licet '' capitalis " Latine loquentibus omnis causa existimationis
videatur, tamen appellatio capitalis mortis vel amissionis civitatis in-
tellegenda est' Dig. 50. 16. 103. The looser use of the term is not
uncommon in Cicero, e.g. pro Quinctio 4. 7. 8. 9. 19, etc For the
relative severity of these punishments cf. Dig. 48. 19. 28. pr. 'proxima
morti poena, metalli coercitio : post deinde in insulam deportatio ; ' for
the latter cf. 6k. i. 16. 2 supr. For the iudicia publica which were not
capitalia cf. Dig. 1. c. I ' ceterae poenae ad existimationem, non ad capitis
periculum pertinent.' 'Damno pecuniario' may be supplemented from
Dig. ib. 2 ' pecuniaria aut in corpus aliqua coercitio.*

§ 9. The lex lulia maiestatis was passed by Julius Caesar, Cic. Philipp.
I. 9. Previously the law of treason had rested partly on usage (Livy i.
26), pardy on the Twelve Tables (Dig. 48. 4. 3. pr.), and a lex Cornelia
(Cic. in Pis. 21, pro Cluent. 35). The intention to commit the offence
was punished no less than its execution (moliti sunt) : ' qui cogitaverit
.... eadem enim severitate voluntatem sceleris, qua effectum, puniri
iura voluerunt ' Cod. 9. 8. 5. pr. Perhaps the same rule was observed in
all crimes, * in maleficiis voluntas spectatur, non exitus ' Dig. ad leg. Com.
de sicariis 48. 8. 14. The lex lulia had substituted a perpetual aquae et
ignis interdictio for the older punishment of death, Paul. sent. rec. 5. 29.
I ; but the latter was re-established as early as Tiberius, Tac. Ann, 6. 18,
Suetonius, Tiberius 58 sq.

Memoriae damnatio (for which cf. Bk. iii. i. 5 supr.) was an exception
from the general rule 'extinguitur crimen mortalitate' Dig. 48. 4. 11 ; its
effect was bonorum publicatio or confiscation, involving rescission of the
criminal's will and donationes inter virum et uxorem. A constitution of
M. Aurelius (Cod. 9. 8. 6. 2) introduced the practice of finding persons
guilty of treason after their decease, which was unknown in the age of
Tiberius, Tac. Ann. 6. 29.

§ 4. The lex lulia de adulteriis was passed by Augustus Caesar, Dig.

Tit. i8.] DE PUBUCIS lUDICIIS. 623

infandam libidinem exercere audent. sed eadem l^e lulia
etiam stupri flagitium punitur, cum quis sine vi vel virginem
vel viduam honeste viventem stupraverit. poenam autem
eadem lex irrogat peccatoribus, si honesti sunt, publicationem
partis dimidiae bonorum, si humiles, corporis coercitionem
cum relegatione. Item lex Cornelia de sicariis, quae homicidas 5
ultore ferro persequitur vel eos, qui hominis occidendi causa
cum telo ambulant, telum autem, ut Gains noster in inter-
pretatione legis duodecim tabularum scriptum reliquit, vulgo
quidem id appellatur, quod ab arcu mittitur: sed et omne
significatur, quod manu cuiusdam mittitur: sequitur ergo,
ut et lapis et lignum et ferrum hoc nomine contineatur.
dictqmque ab eo, quod in longinquum mittitur, a Graeca
voce figuratum, iiro tov rqKov: et banc significationem in-
venire possumus et in Graeco nomine : nam quod nos telum
appellamus, illi p4\o9 appellant ivd tov pikXecrOai, admonet
nos Xenophon, nam ita scripsit: koI tcl pi\rj dfiov i<f>4p€To,
koyxai, To^evfMTOj (r<l>€vb6vai, Ttk^laroi hi koI XCOol sicarii autem
appellantur a sica, quod significat ferreum cultrum. eadem
lege et venefici capite damnantur, qui artibus odiosis, tam
venenis vel susurris magicis homines occiderunt vel mala

48. 5. I. The penalties which it really inflicted seem to have been
relegatio in insulam and partial confiscation of the property of both man
and woman, Paul, sent rec. 2. 26. 14 : cf. Tac. Ann. 2. 5a 85 ' in insulam
• . . abdita est,' ib. 3. 24 ' (Augustus) adulteros morte aut fuga puniyit,
suas ipse leges egrediens : ' ib. 4. 42. For these death was substituted
by Constantine, Cod. 9. 9. 31 ; it seems usually to have been inflicted
on the woman as well, 'adulterii damnatam , . • si poenam capitalem
evaserit ' Cod. 9. 9. 9.

' Stuprum committit, qui liberam mulierem consuetudinis causa . . .
continet ' Dig. 48. 5. 34. pr. Corporis coercitio is illustrated by Dig. 48.
19. 7 'veluti fustium admonitio, flageUorum castigatio, vinculorum ver-
beratio.'

§ 6. The lex Cornelia de sicariis et veneficis (Dig. 48. 8) was passed
by Sulla in the first or second year of his dictatorship, circ 81 B.a The
charge on which Roscius Amerinns was defended by Cicero was based
upon its provisions. Its penalties were aquae et ignis interdictip, to
which Julius Caesar added forfeiture. Dig. 48. 8. 3. 5, Sueton. Jul. 42, but
in many cases death was inflicted : 'sed solent hodie capite puniri, nisi
honestiore loco positi fuerint, ut poenam legis sustineant ' Dig. loc cit.

The referenge to Xenophon is to Anab. 5. 9* I4*

624 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

6 medicamenta publice vendiderunt. Alia deinde lex asper-
rimum crimen nova poena persequitur, quae Pompeia de
parricidtis vocatur. qua cavetur, ut, si quis parentis aut filii
aut omnino adfectionis eius, quae nuncupatione parricidii
continetur, fata properaverit, sive clam sive palam id ausus
fuerit, nee non is, cuius dolo malo id factum est, vel conscius
cri minis existit, licet extraneus sit, poena parricidii punietur
et neque gladio neque ignibus neque ulla alia soUemni poena
subicietur, sed insutus culleo cum cane et gallo gallinaceo et
vipera et simia et inter eius ferales angustias comprehensus»
secundum quod regionis qualitas tulerit, vel in vicinum mare
vel in amnem proiciatur, ut omni elementorum usu vivus carere
incipiat et ei caelum superstiti, terra mortuo auferatur. si

§ 6. The date of the lex Pompeia de parricidiis is B. c. 52.

By nova poena is not meant ' recens inventa ' but ' strange, unparal-
lelled ;' its great antiquity is attested by Val. Maximus i. i. 14.

The wide meaning of parricidium is perhaps to be accounted for by
varieties of derivation ; avar^Kkomt . . . r^v wpmnip avWapriv tcai Ppaxtuv
voiovvrtt, roifg yov€at (p&rentes), €KTeivovT€t dc, rovs vtnjK6ovs (parentes)
offfuMfovaiVy Laurentius Lydus de mag. Rom. i. 26 ; ' Parricida, quod vel a
pari componitur, vel a patre : quibusdam a parente videtur esse ....
Prise, gram. i. Paricida non ubique is, qui parentem occidisset, sed
qualemcunque hominem . . . Lex Numae ... si quis hominem libenim
morti duit, paricida esto,' Festus; cf. Cic. pro Cluent. 11, Livy 40. 34,
Quinctil. inst. 8. 6. 35. The lex Pompeia confined the term to the killing
of ascendants, husbands, wives, uncles, aunts, consobrini, stepfathers
and stepmothers, fathers- and mothers-in-law, patrons and descendants,
except the killing of a son by his father. Dig. 48. 9. i. Hadrian sentenced
a man who killed his son to deportatio. Dig. ib. 5, but this was not included
under parricide till the time of Constantine, p. 127 supr.

Accessories were punished as severely as principals also under the
lex Cornelia de sicariis (Cod. 9. 16. 7) and the lex lulia peculatus.
Dig. 48. 13. I.

The punishment of the sack was very ancient among the Romans :
'Tarquinius res M. Tullium ... culleo insutum in mare abid iussit'
Val. Maximus i. i. 13 : cf. more maiorum. Dig. 48. 9. 9. pr. and i : cf.
Cic. pro Rose Am. 25, Epist. ad Quint, fratr. i. 2, Juvenal, Sat. iii. S.
212 sq. The selection of animals was supposed to be symbolical, fur^
.... afft^P (miv dartPrit Mptmof Dosith. iii. 16, . . . . rck d< wpofipfffitra
BtlpUL tfjfidkkerai dui rovrO) ^ireid^ 6fAOi6rp(ma aitr^ 4<rri* ra /up yap oMotpfi
rovs yoptUf rh dc rijt irpdv avrovg ovk an^xtTat fidxjfit Theoph. If there was
no sea or river near, the criminal was torn asunder by wild beasts, ' hoc
ita, si mare proximum sit : alioquin bestiis obicitur' Dig. 48. 9. 9. pr.

Tit. i8.] DE PUBLICIS lUDICIIS, 625

quis autem alias cognatione vel adfinitate coniunctas personas
necaverit, poenam legis Coraeliae de sicariis sustinebit Item 7
lex Cornelia de falsis, quae etiam testamentaria vocatur,
poenam irrogat ei, qui testamentum vel aliud instrumentum
falsum scripserit signaverit recitaverit subiccerit quive signum
adulterinum fecerit sculpserit expresserit sciens dolo malo.
eiusque legis poena in servos ultimum supplicium est, quod
et in lege de sicariis et veneficis servatur, in liberos vero
deportatio. Item lex lulia de vi publica seu privata adversus 8
eos exoritur, qui vim vel armatam vel sine armis commiserint.
sed si quidem armata vis arguatur, deportatio ei ex lege lulia
de vi publica irrogatur : si vero sine armis, in tertiam partem
bonorum publicatio imponitur. sin autem per vim raptus
virginis vel viduae vel sanctimonialis vel aliae fuerit per-
petratus, tunc et peccatores et ei, qui opem flagitio dederunt,
capite puniuntur secundum nostrae constitutionis definitionem,

§ 7. This lex, which is called Cornelia testamentaria numaria by
Cicero (in Verrem 21. 42), was passed by Sulla about the same time as
that de sicariis (§ 5 supr.). The offence is defined in Dig. 48. 10. 23 * fal-
sum videtur id esse, si quis alienum chirographum imitetur, aut libellum
vel rationes intercidat vel describat, non qui alias . . . mentiuntur.' In
the collatio legum Mos. et Rom. (viii. 7) Ulpian speaks of a senatus-
consult made when Statilius Taurus and Scribonius Libo were consuls,
which dealt with forgeries of documents other than wills, to which, as is
clear from its name, the lex Cornelia principally related. The punishment
of freemen for forgery seems to have varied much with their rank and the
enormity of the offence, 'honestiores ... in insulam deportantur . . . humili-
ores aut in metallum damnantur,aut capite puniuntur ; servi autem [et] post
admissum manumissi in crucem tolluntur ' Paul. sent. rec. 5. 25. i, ' pro
modo delicti aut relegantur aut capite puniuntur ' ib. 13, ' capital! supplicio,
si id exigat magnitudo commissi, vel deportatione . • . imminente' Cod. 9.
22. 22. 2.

§ 8. The same distinction between armed and unarmed violence was
drawn by the praetor in interdict law ; see on Tit. 16. 6 supr. Between
the enactment of the lex lulia and Justinian's time the penalty for vis
armata seems often to have been death (Paul. sent. rec. 5. 26. i, Cod.
Theod. 9. 10. I ), which, however, was but seldom inflicted in the latter*s
time, Cod. 9. 12. 7 and 8, Dig. 48. 6. 10. 2. Sanctimonialis is explained
by Augustine, Serm. 23 ' propria et excellentiori sanctitate virgines, quae
in ecclesia nominantur, quas . . . usitatiore vocabulo sanctimoniales ap*
pellare consuevimus : ' cf. Cod. i. 3. 54 'virginum vel viduarum vel
diaconissanmi, quae Deo fuerint dedicatae.*

SS

626 INSTITUTIONUM LIBRI QUATTUOR. [Lib. IV.

9 ex qua haec apertius possibile est scire. Lex lulia peculatus
eos punit, qui pecuniam vel rem publicam vel sacram vel
religiosam furati fuerint sed si quidem ipsi iudices tempore
administrationis publicas pecunias subtraxerunt, capitali ani-
madverstone puniuntur, et non solum hi, sed etiam qui
ministerium eis ad hoc adhibuerunt vel qui subtracta ab his
scientes susceperunt : alii vero, qui in hanc legem inciderint

10 poenae deportationis subiugentur. Est inter publica iudicia
lex Fabia de plagiariis, quae interdum capitis poenam ex

11 sacris constitutionibus irrogat, interdum leviorem. Sunt
praeterea publica iudicia lex lulia ambitus et lex lulia
repetundarum et lex lulia de annona et lex lulia de re-
siduis, quae de certis capitulis loquuntur et animae quidem

§ 9. The full title of this statute was ' lex lulia peculatus et de sacrilegis
et de residuis ' (for the last see § 1 1 inf.), Dig. 48. 13. Whether the unlawful
appropriation of municipal property came within the penalties of peculatus
was at first uncertain, but the question was decided in the affirmative by
Trajan, Dig. 48. 13. 4. 7. For the meaning of religiosus see Bk. ii. 1.9
and note, supr. ; stealing from tombs, however, does not seem to have
amounted to sacrilege, ' lapidem hunc movere . • . proximum sacriJegio
maiores habuerunt ' Cod. 9. 19. 5, * sunt sacrilegi, qui publica sacra com-
pilaverunt, at qui privata sacra . . . amplius quam fiires, minus quam
sacrilegi merentur' Dig. 48. 13. 9. i.

The penalty of the lex lulia peculatus was aquae et ignis interdictio,
for which deportatio was substituted, Dig. 48. 13. 3. p. 144 supr. ; but
sacrilegi were capitally punished. Dig. ib. 9. pr. A fine of four times the
value of the property appropriated seems to have been commonly inflicted
for peculatus, perhaps under the lex lulia itself, PauL sent. rec. 5. 27.
Peculation by judges was at first punished only by fine, for which death
was substituted by Theodosius, 'cum vix par poena his possit flagitiis
inveniri ' Cod. Theod. 9. 29. i. 2 : cf. Cod. 9. 28.

§ 10. The lex Fabia de plagiariis is referred to by Cicero, pro Rabirio 3,
and there is a Title upon it in the Code (9. 20) ; its content is de-
scribed by Ulpian in the collatio, 14. 2 and 3 ' lege Fabia tenetur, qui
civem Romanum, eundemque, qui in Italia liberatus sit, celaverit,
vinxerit, vinctumque habuerit, vendiderit, emerit, .... eiusdem legis
capite secundo tenetur, qui alienum servum invito domino celaverit,
vendideriti emerit dolo msdo ;' as to its penalties it is said in the same
passage, 'et olim quidem huius legis poena numaria fuit, sed translata
est cognitio in praefectos urbis, itemque praesidis provinciae extra
ordinem meruit animadversionem : ideoque humiliores aut in metallum
danmantur, aut in crucem tolluntur : honestiores, adempta dimidia parte
bonorum, in perpetuum relegantur.*

§ 11. The lex lulia de ambitu was enacted by Augustus^ Suetonius,

Tit. i8.] DE PUBUCIS lUDICIIS. 627

amissionem non irrogant, aliis autem poenis eos subiciunt,
qui praecepta earum neglexerint.

Sed de publicis iudiciis haec exposuimus, ut vobis possibile 12
sit summo digito et quasi per indicem ea tetigisse. alioquin
diligentior eorum scientia vobis ex latioribus digestoram sive
pandectarum libris deo propitio adventura est.

Octav. 34 : upon it Paulus says (sent. rec. 5. 30 A) 'pctiturus magistratum
vel provinciae sacerdotium, si turbam suffragionim causa conduxerit,
servos advocaverit, aliamve quam multitudinem conduxerit, convictus, ut
vis publicae reus, in insulam deportatur ;' in Dig. 48. 14. 1. 1 the ordinary
penalty is said to have been a fine of 100 aurei.

The taking of bribes by judges and magistrates (repetundae) had been
punished with death by tiie Twelve Tables, ' iudicem arbitrumve ... qui
ob rem dicendam pecuniam accepisse convictus est, capite punit ' Gell.
20. I. 7; a quaestio perpetua for the trial of this offence was established
by a lex Calpumia, Cic. Bruto 27. The ordinary penalty was a fine of
four times the bribe taken, Cod. 9. 27. i and 6, I ; but in graver cases we
read of relegatio, deportatio, and even death, Paul. sent. rec. 5. 28, Dig.

48.11.7.3-

Upon the lex lulia relating to repetundae Paulus says, ' iudices pedanei,
si pecunia corrupti dicantur, plerumque a praeside aut curia submoventur,
aut in exsilium mittuntur, aut ad tempus relegantur ' sent. rec. 5. 28.

' Lege lulia de annona poena statuitur adversus eum, qui contra
annonam fecerlt societatemve coierit quo annona carior fiat. Eadem
lege continetur, ne quis navem nautamve retineat, aut dolo malo faciat,
quo magis detineatur, et poena viginti aureorum statuitur' Dig. 48. 12. 2.
Other penalties for the same offence were exclusion from the com trade,
relegatio, and condemnation to public works. Dig. 47. 11. 6. pr.

The lex lulia de residuis was part of the larger statute noticed in
§ 9 supr. The offence was that of converting to one's own use public
money entrusted to one for a specific public purpose, Mege lulia de
residuis tenetur, qui publicam pecuniam delegatam in usum aliquem
retinuit neque in eum consumsit ' Dig. 48. 13. 2. The penalty was a fine
amounting to a third of the money so converted ; of course the principal
sum had to be restored as well, Dig. ib. 4. 5.

S s 2

EXCURSUS X.

ON THE EARLIER HISTORY OF ROMAN CIVIL
PROCEDURE.

A FAVOURITE subject of speculation with the political philosophers
of the 17th and i8th centuries was the social condition of man in
the remote ages anterior to his union with his fellows in the organi-
zation called the state, and the process by which this latter first came
into existence, with all its paraphernalia of legislatures, judicial insti-
tutions, and political subordination. Upon the latter question they
agreed, in the main, in holding the theory known as that of the
* Social Compact,' though their respective political-prejudices led them
to differ largely as to the actual form of government in which the
Compact historically resulted. The age was one in which a priori
reasoning was in high repute, and their method was to disregard the
facts of history, and to attach no importance to such knowledge of
primitive societies as even they possessed : consequently, their doc-
trine has now been so universally discredited, that modern thinkers
find in it no value except * as a convenient form for the expression of
moral truths.' Upon the former question there was greater diversity
of opinion. On the one hand man was represented as living in a
golden age, of which universal peace, simplicity of manners, and
freedom from the constant toil of modern society were the leading
characteristics, apart from the absence of that restraint which is the
inevitable accompaniment of law and political organization. On the
other, his state was said to be one of internecine war with all around
him ; every man's hand was against his neighbour : the strong man
armed alone was secure of life and property, and that only so long
as no one stronger than himself appeared to try conclusions with
him.

Though the latter of these theories is no less pure speculation than
the former, it cannot be denied that it is largely supported by the
actual evidence afforded us by primitive societies. As by the fossils
which he finds at different depths beneath the earth's surface the

EARLIER HISTORY OF ROMAN CIVIL PROCEDURE. 629

geologist is enabled in some measure to reconstruct the natural history
of past ages, so in the language of the Romans, as well as in their
law, we find unmistakable testimony that, among the men from
whom their race descended, and before the state yet existed even in
embryo, the world, which we conceive as ruled by law, was ruled by
force, and by personal force alonjs each man's position was determined.
Might, if not right, is at least her mother; there being no state
machinery for the protection of life and property, man has either to
suffer his own effacement, or to keep with the strong arm that which
he has won by his labour or his blood : and the essence of early
ideas lies in the absence of any basis for right and law other than
the individual consciousness, and the consequent necessity of self-
assertion: 'in sich selbst tragt der Einzelne den Grund seines
Rechts, durch sich selbst muss er es schiitzen \'

Space does not allow us to cite more than a few of the most
striking facts of law and language in support of this statement.
Thus, the origin and true ground of dominium, or lawful control
over objects of enjoyment, is placed by the Romans in the idea, not
of mere occupation or peaceable discovery, but of * taking ' or forcible
seizure: *maxime sua esse credebant,* says Gaius (iv. 16), 'quae ex
hostibus cepissent;' and perhaps the earliest term by which they
denoted property (mancipium) at once arrests the attention, combin-
ing, as it does, with the idea of 'taking' another term, manus, which,
as we shall see, is no less valuable evidence of primitive ideas ; pro-
perty is that which is taken by strength of arm *. Precisely the same
thought reappears in the early form of conveyance ; the property was
deemed to pass not so much in virtue of the will of the parties, or of
delivery by the one to the other, as by the ' taking ' of the object by
the latter (mancipatio) ; original is symbolised in derivative acqui-
sition. Sir Henry Maine (Early History of Institutions p. 253) refers
to Mr. McLennan's work on ' Primitive Marriage,' to show * that a
large part of mankind still simulate in their marriage ceremonies the
carrying off the bride by violence, and thus preserve the memory of
the reign of force which, at all events as between tribe and tribe, pre-
ceded everywhere the reign of law ; ' that this was usual among the
early Romans might have been conjectured from the legend of the

* Ihering, Geist dcs romischen Rechts, i. p. 109. I am indebted to the followiDg
seventy pages of the same volume for many of the thoughts expressed in the early
part of this Excnrsns.

* Cf. what is said on the distinction between res mancipi and res nee mancipi,
p. 17 supr.

630 EXCURSUS X.

rape of the Sabine women, and is expressly stated by Festus, who
ascribes the custom to Romulus' success in thus providing himself
with a wife. Even the gods were supposed to get their earthly minis-
ters in much the same unceremonious manner ; the vestal virgin, says
Gellius (i. 12. § 13) 'pontificis maximi manu prehensa ab eo parente
in cuius potestate est veluti bello capta abducitur.' The spear was the
oldest symbol of right ; hence there was no stronger title than pur-
chase * sub hasta,' at a sale held by state authority ; it was planted in
the ground in the centumviral court, which had a special jurisdiction
in questions of ownership : it appeared in the vindicatio or real action,
and its use in manumission per vindictam will occur to every reader.
Property in land was never called anything by the Romans but prae-
dium ; the analogy with praeda, * booty,' suggests itself at once, and
has been noticed by early writers, one of whom remarks *antiqui
agros quos bello ceperant ut praedae nomine habebant' Again, the
term manus, meaning primarily 'hand,' and derivatively * power,'
'force,' 'control,' plays an extremely prominent part in early l^al
phraseology. Perhaps its frequency in procedure (e.g. manum con-
serere, manus iniectio) is due to the survival in judicial institutions of
traces of an older system, namely, violent self-redress of wrong ; but
' Sir H. Maine has observed (Ancient Law p. 317) that there is very
strong reason for believing that manus was the ancient general term
expressing power, whether exercised over flocks, herds, slaves,
children, or wife : and there is an affinity between hems, * owner,'
and the Greek x*t/>, through the Sanskrit hr, which has the same
meaning as the Latin root cap. On the other hand, while to denote
man the Sanskrit and Greek agree (nri^ nara, dpfip), the Romans have
discarded the corresponding word, and use * vir,' which in Sanskrit
means * warrior : ' they name him not from his sex, but from his call-
ing and occupation : ' virtue ' is conceived first and foremost as
valour in war, only later as purity and honesty. The very name in
which the Romans delighted, and which their satirists cast in their
teeth — Quirites — may be taken as a final illustration: Quids or
Curis in old Sabine is equivalent to hasta; Quirites are 'spearmen :'
and thus we see how dominium ex iure Quiritium has a deeper
meaning, as carrying us back to the prehistoric time when the strong
man armed could alone possess his goods in peace.

In such a social condition the only mode in which a man who
conceived himself wronged by another could obtain satisfaction was
by taking the law, as it is said, into his own hands. A system of
self-redress, in the form of private vengeance, preceded everywhere

EARLIER HISTORY OF ROMAN CIVIL PROCEDURE. 631

the establishment of a regular judicature ; the injured person, with
his kinsmen or dependents, made a foray against the wrongdoer, and
swept away his cattle, and with them, perhaps, his wife and children,
or he threatened him with supernatural penalties by * fasting ' upon
liim, as in the East even at the present day; or, finally, he reduced
his adversary to servitude, or took his life. The idea of such a
procedure was not compensation, but punishment ; self-redress existed
not so much rei, as poenae persequendae causa ^ : and as there is
no objective standard of right and wrong, the measure of the injury,
and therefore of the punishment, is the feeling of the injured person.
Traces of this linger on in Roman Law throughout its whole history. ^
It has been observed ' that in settling the damages to be awarded the 1
earliest administrators of justice took as their guide the measure of
vengeance likely to be exacted by an aggrieved person under the
circumstances of the case ', and that this is the true explanation of
the very different penalties imposed by ancient law on offenders
caught in the act, or soon after it, and on offenders detected after
considerable delay. Even the later Roman law permitted the husband
to kill with impunity the adulterer taken flagrante delicto, and distin-
guished the guilt of the thief according as he was caught in the act
or not ; the fur noctumus was liable to the same penalty as the adul-
terer : for certain bodily injuries (Gaius iii. 223) the Mosaic law of
retaliation had its counterpart at Rome. And from the * addictio '
of the fur manifestus and the insolvent debtor, and the commonness
of noxal surrender (Gaius iv. 75-79, Bk. iv. 8 supr.) in international no
less than in private relations, Ihering conjectures that a form of self-
redress especially favoured by usage was the seizure and detention
of the person of the wrongdoer, until he was ransomed by his friends,
or had earned by the sweat of his brow his own liberation.

From a comparison of the different communities in which we know
this system of self-redress to have prevailed, or even to obtain at the
present day, it would seem that there are two alternative connecting
links, as it were, between it and the later remedial process of ad-
vancing civilization. The practice of uncontrolled private vengeance,
extending even to life and limb, dwindles everywhere to one of the
various forms of distraint ; the survival, as at Rome, of a limited right

^ For the prominence of 'penalty' in primitive law see Ihering i. p. 126,
Maine, Ancient Law p. 368 sq. Cf. Mr. O. W. Holmes* Common Law p. a sq.

' Maine, Ancient Law pp. 378, 381.

• Cf. the sentiment of Cleon in Thuc. iii. 33 dfiAr€(r9cu 9k ry m0€iv 5ti I77V-
rdiw Ktifntyw dyriwikov by ftiXiffra ri^ rtfMplay araXa/i^vci.

63a EXCURSUS X.

of personal arrest and detention seems abnormal. From this point,
however, we find a well-marked divergence. One alternative * consists
in tolerating distraint up to a certain point : it is connived at so far as
it serves to compel the submission of defendants to the jurisdiction
of courts, but in all other cases it is treated as a wilful breach of the
peace. The other is the incorporation of distraint with a regular
procedure. The complainant must observe a great number of forms
at his peril, but if he observes them he can distrain in the end '.' The
first step, we may say, in the process by which self-redress slowly
yielded to the encroachments of courts of justice was the gradual
development of a body of custom, in some cases extremely bulky,
precisely defining the conditions under which it might be exacted,
and minutely prescribing the proper stages in the process, without the
due observance of which the complainant must altogether lose his
remedy. Notice of the intention to distrain — ^fasting upon the wrong-
doer— attendance of witnesses — allowance of a * stay ' or interval
between the earlier and later steps — ^and many other formalities are,
or may be, the essential conditions of success. Such limitation by
custom of the right of self-redress — in other words, its * incorporation
with a regular procedure' — is most common in societies, such as that
of the Irish as revealed to us in the Brehon law tracts, in which, even
if there be a judicial system at all, its action is weak and intermittent,
or where * courts of justice exist less for the purpose of doing right
universally than for the purpose of supplying an alternative to the
violent redress of wrong.' But 'the Roman tribunals became the
organs of the national sovereignty at an exceptionally early date,
and the development of Roman law and procedure was exceptionally
rapid ; ' consequently, we are enabled to bridge over the gulf between
the primitive system of private vengeance, and th.e earliest Roman
civil process of which we have any knowledge, less by tracing this
gradual incorporation of self-redress with a regular procedure than
by other indications of more advanced ideas. These in the main are
three in number : the introduction and development of the idea of
composition for injury ; the plan of guaranteeing a man's rights by
collective action through witnesses ; and the contractual decision of
disputes.

i. There can be little doubt that the term * poena ' originally meant

not so much penalty as composition for injury ; the earliest poenae

were sums in consideration of which the injured person consented to

forego his customary right of self-redress, and the penal sums re-

' Maine, Early History of iDstitntions p. 278.

EARLIER HISTOR V OF ROMAN CIVIL PROCEDURE. 633

covered by the plaintiff in a Roman action on delict attest the nature
of the practice, though in them the * penalty ' is usually fixed by the
state, and not by the parties ^ This less barbarous method of settling
disputes and claims is familiar to every one who has any acquaintance
with the law^ of the Germanic tribes. Mr. Kemble observes ' that
under Anglo-Saxon law there was hardly any wrong a man could suffer
which could not be atoned for by a money payment At Rome, so
far as we can judge, it was confined to delict ; for breach of contract
the ultimate remedy, even in historical times, remained the right of
arrest and detention ; the debtor who could not, or would not, dis-
charge his obligations fell a victim to the severe process of manus
iniectio ; he was sold into foreign slavery, or put to death. Thus
* the remedy for a wrong to property was against the person : for a
wrong to the person it was against the property,' and this explains
why actions on delict, even when partly rei persecutoriae, * in heredem
non dantur.' A delict calls for the exercise of private vengeance,
which, however, has nothing to act upon as soon as the wrongdoer is
dead ; his heir succeeds to his universitas iuris, of which his feuds
and hostilities are no part ; and as the poena is paid as the price of
exemption from personal hostility, it must be paid by the wrongdoer
and no one else.

ii. It is obvious that the exercise of self-redress required some
limitation, as anarchy began to give way to order, providing for the
establishment and rendering certain of claims of man against man.
In the case of a wrong or a debt whose existence no one could doubt,
the system might, as things stood, seem tolerable enough; but it
could not long be endured if every pretended injury or obligation
were to entitle the complainant to proceed thus against the object of
his animosity. The expedient which seems to have suggested itself
to the primitive Romans was to require clear and adequate evidence
of every right or wrong which was not otherwise beyond question,
and to attribute to the witnesses a kind of interest in the realization
of justice, by identifying them, in a sense, with the person who was
supported by their testimony ; if the latter were compelled to resort
to self-redress, they were under a moral obligation to afford him
active assistance; in default they became no less improbi and
intestabiles than the false or recalcitrant witness of a mancipation *.

^ In the delict of ininria, where the praetor substituted a money payment in lieu
of actual retaliation, the plaintiff was allowed to fix its amount himself, Gaius iii.
334.

* Anglo-Saxons i. 177. » Gellins xv. 13. 11.

634 EXCURSUS X.

A ' testis ' is conceived, originally, less as a witness, in the modem
sense, than as a ' guarantor ' or ' insurer ' of the right which he has
attested — ^a conception which we shall be the better able to realize
by remembering the /WiWa/ character of the recognitor in the Assizes
of Henry II — ; verum means * the assure<J^ truth that for which one
becomes security ; the witnesses, who in the legis actio are called
upon * litem contestari,' discharge, upon this theory, some inteUigible
function *. Why, we may ask, could a woman not be a witness to
the transactions of the ius civile ? The answer would seem to be,
because she lacks the physical force of man to which the witness
must in the last resort appeal, if he is really to do his duty as
' assurer.' Why, again, could many of a man's own relations, whose
evidence might incur suspicion on the ground of interest, attest his
solemn acts and dispositions ? Because credibility is not, as with us,
the essential ; the essential is rather the strong arm. Joint respon-
sibility for wrong is familiar to readers of Greek legend no less than
of Anglo-Saxon history ; joint suretyship for right — the idea of in-
ducing a wrongdoer to submit to justice by the- moral and physical
force by which his adversary is backed — is peculiarly Roman. A
strong confirmation of this theory is found in the will made in the
comitia calata; a disposition which it was desirable should be
guaranteed by a larger force than any ordinary matter, because it
was of far greater importance, affected, perhaps prejudicially, more
interests, and therefore was more likely to be impeached, and
exposed to the chances of stronger opposition : accordingly, it was
witnessed, and so guaranteed, by the whole Roman populus, and
even when in the will made per aes et libram the number of
witnesses was reduced to five, these, according to a very plausible
theory, represented the whole people in its five census-classes. If
this conjecture be true, the form of mancipation was an easy and
convenient means of throwing round dispositions the aegis of a
public guarantee: violation of a right acquired per aes et libram
is a violation of public order : resistance to the person entided is
resistance to the state.

iii. The contractual decision of disputes took two forms. The
one consisted in the complainant's giving his adversary the option of
denying his liability on oath, or of being taken, in default, to admit
it : it remained a permanent institution at Rome even to the time of
Justinian, in whose Digest (12. 2. 38) we read 'manifestae turpi-

^ Cf. the affinity in German between wahr and bewahren, gewrahren.

EARLIER HISTOR Y OF ROMAN CIVIL PROCEDURE. 635

tudinis et confessianis est nolle nee iurare nee iusiurandum referred
The other was referenee of the matter by eommon eonsent to arbi-
tration : from this, beyond the shadow of a doubt, the whole Roman
system of actions tried before a judge or judges took its origin. The
earliest judges derived their judicial authority, such as it was, not from
the state, but from the voluntary submission of the parties : and
Sir H. Maine has shown *, by an examination of the earliest Roman
civil process, that the magistrate, even when commissioned by the
state for the administration of justice, preserved the memory of the
actual historical source of his functions by * carefully simulating the
demeanour of a private arbitrator casually called in.' The later
Roman jurists, though struck by the similarity in procedure between
an ordinary action and a reference to arbitration, were guilty of the
curious anachronism of deriving the latter from the former : * com-
promissum ' (one of them says) * ad similitudinem iudiciorum redigi-
tur;' but the fact is that action grew out of arbitration, and the
judge was originally only an unofficial referee ; a fact of which traces
are observable throughout the legal history of Rome, Thus, no
action could validly be commenced, still less carried through to
judgment, until the court had got both parties before it : for arbitra-
tion can take place only by consent, not by a unilateral act of either
of them without the other. Still more forcibly are we reminded of
the mode in which the early judge acquired his jurisdiction by the
vitality of the rule that no judge could be forced upon a party of
whose knowledge and integrity be was not satisfied: *neminem,'
says Cicero *, * voluerunt maiores nostri non modo de existimatione
cuiusquam, sed ne pecuniaria quidem de re minima esse iudicem,
nisi qui inter adversaries convenisset' Hence too the limited au-
thority, as we should deem it, of the Roman index; he has no
* imperium ; ' he cannot compel the parties to any act or forbear-
ance ; he is merely a referee whom they have chosen, and in whose
appointment the magistrate has cooperated ; all he has to do is to
decide the questions submitted to him, so far as the parties may
enable him ; he has to leave to them the realization (by execution)
of the right he ascertains. The very point he has actually to settle
is at first kept studiously in the background, and hidden behind a
wager ; the decision is not an order or injunction, but an expression
of opinion, sententia, pronuntiatio.
• In England we know from actual records with what rapidity trial

* Andent Law pp. 375 sqq. * Pro Cluentio cap. 43.

636 EXCURSUS X.

by jury in civil causes, though in most cases optional only, super-
seded the more barbarous methods of compurgation, ordeal, and trial
by battle, and that this was largely due to a sense of the greater jus-
tice and reasonableness of the new system. We can hardly doubt
that upon much the same grounds the practice of arbitration daily
gained greater favour among the Romans. When political authority
has at length obtained a firm footing, the magistrate is gradually
preferred by litigants to a citizen arbitrator, perhaps from a convic-
tion of his greater wisdom and impartiality ; if he is a king, perhaps
too because his divine descent is believed to confer upon him a
sense of right, and a kind of knowledge, above his merely human
fellows. Finally, the judicial function is recognised as appertaining
to the state ; though the primitive remedies may to some extent
survive in all their rudeness, and though the state administration of
justice may still more widely bear traces of the social condition
which preceded political organization, still the natural mode of
deciding a dispute is to go to the magistrate, and rules of civil
procedure have begun to assume consistency. Courts have become
established ; their mode of action is prescribed by law ; any attempt
to evade their authority by recurring to other methods of obtaining
satisfaction, save in certain well defined cases, is considered a defi-
ance of law, and a breach of the peace.

This is the condition of the earliest judicial institutions at Rome
of which we have any information. Gaius tells us that the formulary
procedure which was in use in his time had superseded a system of
* Statute-Process,' which presents to us all the characteristic features
of a nascent judicature. There were but five forms of redress for
wrong, called legis actiones, a name of which two alternative explana-
tions are given by Gaius (iv. 11). Three of these are genuine ac-
tions ; the other two are anomalous, for, though called * actiones/
they are clearly * survivals ' from the older system of self-redress, and
seem at first sight to have little in common with an action in the
ordinary sense of the word : * they cannot ' (says Sir H. Maine) **be
made to square in any way with our modem conception of an action.*
One of these is pignoris capio, which Gaius (iv. 29) says some refused
to regard as a legis actio at all, among other reasons because of its
extra-judicial character. In point of fact, it is the old practice of
distraint, restricted by the encroachments of a more civilized pro-
cess to certain limited kinds of claims of a public or religious nature,
and even then to be successfully applied only by careful observance
of prescribed forms of speech and action. It could be used by a

EARLIER HISTORY OF ROMAN CIVIL PROCEDURE. 637

soldier against the tribunus aerarius for arrears of pay ', and by the
cavalry in order to procure money for the purchase of a horse and
his corn (aes equestre, aes hordearium) ; its employment in these
cases was anterior to all records (Gaius iv. 26). By the Twelve Tables
the buyer of a victim for sacrificial purposes, and the hirer of a beast
of burden let out to raise money for the same object, were made
liable to distress for the purchase or hire money, and the * lex cen-
soria ' enabled publicani to proceed in this manner against persons
who were in arrears of taxation. Of the procedure we know nothing :
from the limited action of the remedy it may perhaps be conjectured
that very little was left to the caprice of the distrainor, and that both
notice and an interval for redemption of the property seized were
requisite. The other abnormal legis actio was called manus iniectio,
which seems properly to have been the mode of execution upon a
liquidated debt, and so available only in the case of debtors who had
either admitted their liability (confessi) or against whom a judgment
had been obtained (iudicati). The procedure consisted in the credi-
tor's * laying hands ' on his debtor wherever he met him, taking him
before the praetor, and there solemnly stating the debt, nonsatisfac-
tion, and arrest (Gaius iv. 21). Thereupon, unless the debt was at
once discharged by the debtor, or formally contested by some one
on his behalf, the creditor was entitled to take him away and keep
him in strict detention, and after the lapse of a prescribed period to
sell him into foreign slavery or put him to death *. Subsequently,
manus iniectio was extended in all its severity by statute to certain
other claims ; in particular, it was allowed by the lex Publilia to the
sponsor against his principal, in default of repayment within six
months, and by the lex Furia de sponsu against the creditor who
exacted from one of several sureties more than his aliquot share of
the debt guaranteed. As thus extended it was called manus iniectio
pro iudicato. In other cases again it was applied by statute with a
mitigation of its harshness, the debtor escaping imprisonment by
being allowed to contest his liability by action in person ; in this less
severe form it was called manus iniectio pura ; instances of its use
will be found in Gaius iv. 23. We read too of manus iniectio under
other circumstances than any of these, especially in execution for
contractual obligations incurred by nexum, and apparently in furtum
manifestum (Gaius iii. 189): and very often it is impossible to say

^ Cf. Maine, Early History of Institutions p. 305.
' C£ Posters Gains p. 344.

638 EXCURSUS X.

whether the procedure was pura or pro iudicato. But the lex Vallia
(iv. 25) eventually limited the operation of manus iniectio in all its
original seventy to the cases of iudicatus (including confessus) and of
the defaulting debtor under the lex Publilia ; wherever else it was
still available it was pura, and its only peculiar incident was that the
debtor was cast in double damages if he unsuccessfully denied his
liability (lis crescens).

The Romans themselves never doubted that manus iniectio was a
true legis actio, though it was no less a form of execution than pig-
noris capio : the former was Personal, the latter was Real execution.
The fact would seem to be, as is remarked by Mr. Posted that
manus iniectio has two meanings. Sometimes it is a solemn act
of self-redress, viz. where the plaintiff's right is incontestable, and the
defendant submits. But at other times it is the first stage in a l^s
actio, viz, where the defendant denies his liabihty, and resists the
claim either in person or through a vindex : and it seems probable
that it was called Statute-Process only in this latter case. If this be
true, the application of the term * legis actio ' to pignoris capio alone
remains anomalous. So far as we know it, pignoris capio was purely
extra-judicial : if a man had a claim which the law allowed him to
enforce in this manner, he had no need oC assistance from the
magistrate ; the praetor did not appear at any stage of the proceed-
ings, which presented a picture of as pure self-redress as could be
found before courts and magistrates had come into existence. Why
then is it called an * actio ' at all ? Arguing from the analogy of
manus iniectio, it would not be rash to conjecture that pignoris
capio also has two meanings, and that it was a legis actio only when
the person distrained upon denied his liability, and pushed proceed-
ings to a regular action. It is well known that in the English law
of Distress this is done by an action of Replevin, in which the
distrainee is plaintiff and the distrainor defendant : but the parallel
of manus iniectio makes it probable that in Roman law the rd/es
were reversed, and that if the distress was alleged to be unlawful the
distrainor was bound to come forward as plaintiff in an action to
justify his act, by forcing the other to redeem his pledge at a price
double the amount of the original debt ^

* Gains p. 507.

' This conjecture is snpported by the known facts of the publicanns, who was
allowed to proceed on the analogy of pignoris capio after the introduction of the
formulary system : and Gains' words (iv. 3a) suggest that the publicanus sued the
taxpayer who was in arrears in order to compel him to redeem the property seised

EARLIER HISTORY OF ROMAN CIVIL PROCEDURE. 639

Of the three other legis actiones it seems probable that the oldest
is the sacramentum. Gaius says it was ^ actio generalis/ i.e. the
proper remedy in all cases for which no other procedure had been
ordained by statute. Though he describes it to us as a real action,
involving questions of ownership and status, it may be conjectured
that it was at one time the only form of action proper known to the
Romans ; for of the two other legis actiones which we have still to
examine, we know one to have been of later introduction, and to have
related to cases which previously were tried by sacramentum (Gaius
iv. 20) ; while the comparative freedom of the other from the strict
punctiliousness characteristic of very early procedure seems to justify
us in denying it any very great antiquity '. All three, however, being
actions proper, necessitated the attendance of both parties before the
magistrate, and to secure this was the business of the plaintiff. A
summons from the court or magistrate, which we now regard as the
indispensable mode of commencing legal proceedings, was at Rome
unheard of for many centuries. The first words of the Twelve
Tables which have survived to us prescribed the mode of dealing
with a defendant who refused to attend to his plaintiff's summons or

* in ius vocatio ; ' the latter, after appealing to witnesses, could lay
hands upon and take him by force before the praetor. The * Real '
form of sacramentum is familiar to every reader of Sir Henry Maine's

* Ancient Law.' It may be said to consist of three dramatic acts or
stages, the first of which presents to us an oral pleading or alterca-
tion. The subject of dispute, e. g. a slave — or if it be too large,
a portion of it — is brought into court : whereupon the plaintiff, hold-
ing in one hand the festuca, or symbol of absolute dominion, grasped
it with the other, and touching it with the festuca said * hunc ego
hominem (e.g.) ex iure Quiritium meum esse aio secundum suam
causam sicut dixi: ecce tibi vindictam imposui.' This form was
repeated by the defendant; and both now grasping the object of
their dispute, we reach the second act of the drama, a pretended trial
by battle, symbolised in this simultaneous seizure or ' manuum con-
sertio.' Lastly, to avert the simulated prospect of bloodshed, the
state steps in ; the praetor, in the phrase * mittite ambo hominem,*
turns actual strife into peaceful arbitration. The plaintiff now
demands of the defendant the ground of his claim, and having heard

at a sum in excess of that actually due. Cicero speaks (in Verrem iii. 11. 27) of

* pnblicanus petitor ac pignenitor.'

^ Keller, however (Civil Process p. 77), regards indids arbitrive postulatio as
coeval with sacramentum.

640 EXCURSUS X.

it challenges him to lay a wager, the amount of which was fixed by
the Twelve Tables, on its justice ; a challenge which is repeated by
his adversary. It is from the stake in this wager (sacramentum) that
the action got its name ; it was forfeited by the loser to the aerarium,
and originally was deposited, pending trial, Mn sacro,' under the
custody of the gods ; subsequently immediate deposit was dispensed
with, the praetor taking security (praedes sacramenti) from both
parties for payment in the event of defeat. The wager having been
thus duly laid, the praetor proceeded 'vindicias dicere,' to award
interim possession to one or other of the litigants, taking sureties
(praedes litis et vindiciarum) for the restoration of the property in
dispute, and its mesne profits, if the other proved his title. A iudex
was then appointed by agreement to try the question at issue,
namely, which was the winner of the wager : behind which the real
matter in litigation — the ownership of the slave — lay in the back-
ground. Before this judge the case was first laid in a succinct
narrative form (causae collectio), which was followed by evidence
and arguments in detail ^

Both the remaining legis actiones are in personam. Of iudicis
arbitrive postulatio we have no records, save the formula, preser\'ed
by Valerius Probus, in which the judge or referee was applied for.
But it seems to have been a sort of modification of the sacramentum,
designed for the settlement of unliquidated claims. The employment
of sacramentum itself was conditional upon the applicability of the
wager, and this clearly depended on precise knowledge of the pecu-
niary value of that which was claimed by the plaintiff. In other
words, sacramentum, as an action in personam, lay only on literal
contracts, on such stipulations as were for a certum, and on delicts
in which the pecuniary penalty was fixed by law ; and iudicis arbi-
trive postulatio seems to have been the remedy on fiducia and on
certain quasi contractual relations, in which the plaintiff demands,
not something ascertained, but that it shall be ascertained to what he
is in equity entitled from his adversary '. Of condictio we have fuller

^ For the significance of wagers in early jadicial proceedings see Maine, Early
History of Institutions p. 359.

The procedure in sacramentnm after the praedes litis et vindiciarum had been
taken is very obscure, owing to a lacnua in the MS. of Gains, iv. 15. Before the
enactment of a lex Pinaria Gaius says (iv. 15) that a judge was appointed to try
the case at onoe : but that statute required the parties to appear before the praetor
for that purpose after an interval of thirty days.

' e.g. the actio tutelae and the actio familiae erciscundae. See Voigt, zii.
Tafeln i. § 63. This is the point of contact between this legis actio and the later

EARLIER HISTORY OF ROMAN CIVIL PROCEDURE. 64I

knowledge. It is said by Gaius (iv. 19) to have been established by
the lex Silia* for the recovery of liquidated money claims, and to
have been extended later by a lexCalpurnia to res certae of all other
kinds. He adds that the reason of its introduction was hard to see,
there being already a satisfactory remedy in such cases, viz. the
sacramentum in personam. One possible explanation is the increase
in judicial business. If the lex Pinaria had not yet been enacted,
and Keller's account of it is the true one, we may ascribe the intro-
duction of condictio to a desire to relieve the centumviri of a number
of suits which could very well be tried by a single judge ; and even
if that statute were already in existence, it perhaps only made refer-
ence of the cause to a single index optional to the praetor, whereas
the lex Silia absolutely required him to send condictiones to be tried
in this manner. It is not improbable, however, that the condictio
was really designed in the interests of creditors and the money-
lending class, to whom, as will be seen, it was far more favourable
than the older procedure by sacramentum ■. The plaintiff having
got the defendant before the praetor by in ius vocatio, challenged
him to a wager by stipulatio (sponsio poenalis) of a sum equivalent
to a third of the value in dispute, while the defendant, by resti-
pulatio, bargained for payment of a similar sum by him in the event
of his failing to establish his case. This wager did not go, like the
sacramentum, to the state, but to the party victorious in the action.
Then followed the 'condictio* proper', viz. notice by the plaintiff to
the defendant to reappear after an interval of thirty days for the
appointment of a index to try the case, the subsequent procedure
being much the same as in sacramentum. It does not seem that
the sponsio and restipulatio, by which the wager * tertiae partis ' was
entered into, ever formed part of the condictio to recover * certa res,'
which was subsequently called condictio triticaria.

The defects of the legis actio procedure in general lie upon the
surfece. Gaius (iv. 30) refers only to its * nimia subtilitas * or ex-

bonae fidei indicia. The equitable balancing of conflicting claims seems to be
characteristic of both.

^ Voigt (Ins Natnrale iv. 401) believes that it was through the introduction of
condictio that stipulation acquired binding force, and dates it between 443 and
435 B.C. The lex Calpumia he places between 358 and a88 B.C. : but other
writers consider them to have been much later.

' So too Professor Muirhead, Roman Law p. 331. For another ezplanaticMi see
Maine, Early History of Institutions p. 360.

' Gains iv. 18 *et haec quidem actio propria condictio vocabatur : nam actor
adversario denuntiabat, ut ad indicem capiendum die xxx adesseL*

Tt

64% EXCURSUS X,

cessive formalism. Things came, he says, to such a pass, that he
who committed the smallest error failed altogether. Sir H. Maine ^
cites a passage of Blackstone in which precisely the same remark is
made of the English law of Distress, and which is curious, as he says,
because the later of the two writers could not possibly have read the
earlier. It was not so much the ' nimia subtilitas ' as the lack of safe-
guards against errors of form which gave the l^is actio its two-edged
character. Any such error^ however trivial it might be, entailed com-
plete and irrevocable loss of action, for the maxim ' nemo de eadem
re bis experiri potest ' forbade the bringing of a second suit : and yet
the chances of such mistake were so innumerable, the path of the
litigant was so beset with the pitfalls of formalism, that justice must
have been only too often defeated. Thus, in manus iniectio, and
pignoris capio, the proceedings took place to a large extent, if not
entirely, out of court,; and yet the slightest slip, even in an ignorant
creditor, brought upon him irremediable defeat. In the succeeding
system, as is remarked by Mr. Poste', no litigant could commit a
suicidal error before the final moment at which the suit was trans-
ferred from praetor to iudex. In the same note he calls attention to the
rigidity of Statute-Process — its want of power of expansion. The
forms of action were crystallised in the law, and incapable of multi-
plication; the right presupposed the remedy, not the remedy the
right ; the praetor himself had his hands tied, and was a mere piece
of machinery. A new order of things was inaugurated by the lex
Aebutia '.

With a few reservations ^ this statute abolished the legis actio pro-

' Early History of InstitatioDs p. 273.

' Note on Gains iv. 30.

' The date of the lex Aebntia is qnite nnknown t but the fact that the latest
collection of legis actiones was made abont the middle of the sixth oentniy of the
city by S. Aelins Paetns seems to support Bethmann-Holiweg*s conjecture that the
statute was passed between 300 and 150 B.C. A T. Aebntius Cams was prooii.
nent at Rome between 183 and 173 B.C. (Livy xxxix. 55 : xli. 5, 15 : xlii. 4), and
in 168 B.C. a M. Aebutius was praetor in Sicily (Livy xliv. 17): either of these
may have been its anthor. Cf. note on p. 30 supr.

* The cases in which Statute-Process was allowed to survive were (i) those
which had to be tried in the decemviral and centnmviral courts, where the pro-
cedure was by sacramentum ; (a) danmum infectum (note on Bk. iii. 18. a sapr.),
where, according to Mr. Poste, it ¥ras by indicis arbitrive postnlatio, though Beth-
mann-Hollweg is more probably right in supposing it to have been a case of pignoris
capio; and (3) the voluntary jurisdiction, such as datio in adoptionem, manumissio
vindicta, and in iure cessio : see Keller, Civil Process § 34. Gaius says (iv. 30)
that the two leges Inliae (passed in the reign of Augustus) assisted in the over-
throw of Statute-Prooess. AU that they seem to have done^ however, was to

EARLIER HISTOR Y OF ROMAN CIVIL PROCEDURE. 643

cedure, though we do liot know whether its action Was exclusively
destructive. It is usual to speak of it as having * introduced ' the
formulary system ; but it is quite imcertain whether the outlines of
the latter were sketched in the statute, or whether it left the praetor
to devise and apply a new procedure at his own discretion. But,
whatever its source, the new system has two leading features. One is
the universal division of every judicial proceeding or action into two
portions, one which took place before the praetor, in iure, and the
other which took place before the iudex, in iudicio. We have seen
the growing tendency towards this in the legis actio period. So long
as litigation was tolerably scanty, we may, perhaps, believe that the
praetor decided most suits in person, but the lex Silia made reference
to a single judge obligatory in a large class of actions, and an impulse
must also have been given to the practice by the introduction of
iudicis arbitrive postulatio. But after the lex Aebutia, the distinction
between ius and iudicium is strongly emphasised, the latter acquiring
more prominence as the former became less formal. The main
object of the proceedings in iure, as of the pleadings in an English
action, was to determine the issues to be tried; their actual trial
took place in iudicio. The other and more characteristic feature of
the new system is the commencement of the action, after summons
and appearance, by a written document (formula, concepta verba)
addressed by the praetor to the iudex who was to try the action, and
containing his authority, and a brief statement of the issues, with
sometimes the principle upon which he was to decide them. The
praetor stated in his edict the circumstances under which he would
grant an action, e.g. 'if Aulus assaults Titius, or if Titius refuses to
repay a loan given him by Seius, iudicium dabo ; ' and the skeleton of
the formula was taken from the edict, or from some special depart-
ment of it known as the album, and filled out with flesh and muscle
from the allegations of the parties. It was no part of the praetor's
duty to construct the formula. It was incumbent on the plaintiff to
see that it contained every word and letter which was essential to his
case ; it was the defendant's business to see that any defence which
he had, and which by technical rules of pleading was required to be
referred to in the formula, should there be alluded to accordingly.
In a word, the skilful ' building up ' of a perfect formula was a task

abolish the decemviri as an independent coart, combining them in some way with
the centnmyiri, and to limit the jurisdiction of the latter. Pnchta, Inst. § 163, cf.
Keller, Civil Process f 23.

1t%

644 . EXCURSUS X.

of much nicety, in which a litigant frequently required considerable
technical assistance. When the parties had finally agreed upon its
structure, it was ' settled ' by the praetor, and the business in iure
was over. Thus, the formula might, and usually did, contain a
number of clauses, some of them due to and containing, as it were,
the case of the plaintiff; others due to and to a certain extent con-
taining the defence of the defendant

At the head of the formula stood the appointment of the iudex ;
e.g. Aulus Agerius iudex esto ^ The other possible portions, though
never all found together, usually followed in much the same relative
order. We will first examine those inserted in the interest of the
plaintiff.

The Demonstratio, when found in a formula, immediately follows
the appointment of the iudex, and contains the allegation of fact upon
which the plaintiff bases his claim. It invariably begins with *quod,'
* whereas;' e.g. in Gaius iv. 39 *quod Aulus Agerius Numerio Ne-
gidio hominem vendidit ; ' or ' apud Numerium Negidium homtnem
deposuit.' Occasionally the place of the demonstratio is taken by a
praescriptio (pro actore), and sometimes even the latter is prefixed to
or worked into the former; its use is confined to formulae upon
actions in which the plaintiff is entitled from the defendant to a number
or variety of acts prima facie hanging together, but of which one only,
or at least not all, are claimed in the present action. By the prae-
scriptio, beginning * ea res agatur, let the present trial relate exclusively
to so and so,' the plaintiff reserved his right of action upon the other
acts, or those subsequently to fall due, which would otherwise have
been consumed; it being a presumption of Roman law (capable,
however, of being rebutted by the insertion of a praescriptio in the
formula) that when a man instituted an action, it comprised all his
claims against the defendant, prospective no less than present, so far

^ For purposes of convenience it is assumed that the case is sent for trial before
a single index. Often, however, it was heard by a nnmber of indices sitting toge-
ther, who were then called recnperatores ; though it is quite uncertain vfiaX kinds
of cases were usually treated in this manner. It is hardly necessary to warn the
reader against confusing the Roman iudex with an English judge. The former was
merely a private citizen, appointed by the praetor after amicable selection by the
parties, to determine certain issues of law and fact in accordance with the evidence
laid before him. Towards the end of the republican period the office, which had
previously been thought an honour, came to be regarded as a burden ; and this led
to the institution by Augustus of an * album iudicnm selectorum,' from whom the
judge had to be chosen, and who were compellable to hear cases sent to them by
the praetor.

EARLIER HISTOR Y OF ROMAN CIVIL PROCEDURE. 645

at least as they related to the present ground of action, and aheady
had at least a potential existence. Two examples are given by Gaius.
In the one, a man to whom an annuity is payable, say, every six
months, sues for a half year's instalment, using the praescriptio ' ea
res agatur cuius rei dies fuit ; ' in the other, the purchaser of an estate,
claiming that it shall be conveyed to him by mancipation, reserves to
himself the right of subsequently demanding its mere traditio by a
praescriptio in the form ' ea res agatur de fiindo mancipando.'

The Intentio, which follows the Demonstratio if there be one, is the
part of the formula * qua actor desiderium suum concludit,' in which
the plaintiff either affirms the legal right which he claims against the
defendant, or else states a fact or facts (in which latter case there is
never a demonstratio) from which the right is to be inferred. It is
easily to be distinguished from the other parts of the formula by the
term paret (si paret, quicquid paret) ; and if it afiirms a right, it is
said to be ' in ius concepta,' if it merely implies a right by directing
the judge to decide for or against the plaintiff according as he finds
certain alleged facts to be true or untrue, it is said to be Sn factum
concepta.' The numerous divisions of Roman actions found in the
fourth book of Gaius are based almost entirely on the structure of
the intentio ; for this being the part of the formula in which we find,
expressly or impliedly, the right alleged by the plaintiff, it is by
reference to it that we are enabled to distinguish actions according
to the rights which they are designed to protect. If the intentio of
one formula differs substantially in structure from that of another, we
know at once that the actions themselves, and the rights which they
respectively protect, are substantially different as well.

The principal divisions of actions, so far as they arise from differ-
ences of structure in the intentio, are as follow.

i. The intentio is either directed against the person of the defend-
ant, and names him as well as the plaintiff (e.g. si paret Aulum
Agerium Numerio.Negidio sestertium x millia dare oportere), or it
merely specifies the object to which the plaintiffs claim relates and
names the plaintiff only (e.g. si paret Auli Agerii hominem, fundum,
hereditatem, ius utendi fruendi, esse). In the first case the action is
in personam, and brought to enforce an obligation ; it is called * actio '
jcar* i^xn^ (p. 346 supr.). In the second case it is in rem, and asserts
either ownership or a ius in re aliena as belonging to the plaintiff;
its specific name is vindicatio or petitio. A real action claiming a
servitude was called actio (in rem) confessoria ; one denying the right
of another person to a servitude was called negativa or negatoria«

646 EXCURSUS X.

ii. Actions in personam lie for the enforcement of an obligation.
Of the formulae of those brought upon delict little is known * : but
those which lay on contractual or quasi-contractual relations fall into
distinct and familiar classes, viz« iudicia stricti iuris and iudicia bonae
fidei. The intentio of both can always be recognised by the presence
of the word *oportet* or * oportere ' (*is bound'). Iudicia stricti iuris
are the same as condictiones : the cases in which they were the
appropriate action are pointed out in the note on p. 552 supr. So
far as the intentio is concerned, they are of three kinds, viz. {a) con-
dictio certi, which corresponds tolerably closely with the old legis actio
introduced by the lex Silia : it lies for the recovery of certa pecunia.
The intentio ran * si paret A. A. : N. N. x milia sestertium dare
oportere:' and if the claim was for pecunia certa credita (i.e. due
under a mutuum, a verbal or a literal contract), there might be a
wager (sponsio and restipulatio poenalis) between the parties amount-
ing to one third of the sum in dispute (Gaius iv. 171). {p) Condictio
triticaria (which derives its name from triticum, grain, a loan of which
no doubt in early times most frequently gave rise to it) corresponds
with the legis actio as extended by the lex Calpurnia : it lies for the
recovery of certae res (Dig. 13. 3), and its intentio runs * si paret A. A. :
N. N, fiindum [hominem, tritiei x modios] dare oportere.* {c) Con-
dictio incerti is the remedy where the obligation is to perform some
act other than a conveyance, and as it is most usually brought on a
stipulation it is commonly called actio ex stipulatu (Bk. iiL 15. pr.
supr.). The formula contained a demonstratio, and the intentio ran
* qujcquid dare facere .... oportet.'

The bonae fidei iudicia, which are sometimes called arbitria *, are
enumerated in Gaius iv. 62, Bk. iv. 6. 28 supr., the most common of
them being the actions on contracts iuris gentium exclusive of
mutuum. The name is derived from the addition of the words * ex
fide bona' in the intentio (e.g. quicquid ob eam rem A. A. : N. N.
ex fide bona dare facere oportet), which indicate that the plaintiflfs
demand is of something more 'incertum ' even than in condictio in-
certi : its value is to be ascertained only by a careful balancing and
adjustment of conflicting claims, and consequently the judge is here

^ Some evidenoe as to the actio furti is fonnd in Gaius iv. 37.

' The term arbitrinm in Roman law, in the sense of an action, means either an
actio arbitraria, p. 561 snpr., or a bonae fidei iudidnm ; and the person who tries
an action of either of these classes is called arbiter as often as index.

EARLIER HISTOR Y OF ROMAN CIVIL PROCEDURE. 647

allowed a far greater latitude of discretion ; the procedure is that of
equity rather than of law *.

iii. Another division of actions based upon structural difference of
intentio is that into actio directa and actio utilis, which grew out of
the practice of extending an action to cases which did not come within
its original scope by the introduction of a fiction into the intentio,
whereby the iudex was instructed to decide the case as if the con-
ditions under which (in ordinary circumstances) the action would lie
existed, whereas in point of fact they did not. Such an action was
called actio fictitia, and is described by Gains as one ' quae ad aliam
actionem exprimitur, which is moulded upon a pre-existing and
independent remedy,' the latter being said 'sua vi ac potestate
constare.' Of fictitious real actions an example may be found in
the actio Publiciana*, in which it was feigned that the period
of usucapio had run its full course; personal actions containing
some similar fiction may be illustrated by the actio Serviana
(Gains iv. 35), in which the bonorum emptor fictitiously represented
himself as the insolvent's heir, and by the condictio furtiva against
a peregrinus, where the latter was represented as a civis (ib. 37),
Where there was no fiction whatever, nor the slightest trace of one,
the action was said to be directa ; where there either was a fiction or
some covert reference in the intentio showed that the action lay on
the case in question in virtue not of the substantive law, but of the
praetor's quasi-legislative authority as exercised through the edict, it
was said to be utilis. An actio utilis was thus always modelled on an
actio directa ; where this was clear upon the fece of the formula, it
was actio fictitia ; where not, but the derivation was less patent, it was
actio utilis pure and simple. As examples of the latter may be cited
the actions brought by the fidei commissarius under the SO. Trebel-
lianum, by the assignee of a chose in action (p. 482 supr.), and that
referred to in Gains iii. 219.

iv. The difference between an intentio in ius and one in factum
concepta has already been pointed out The one afiirms hypotheti-
cally or indefinitely a right belonging to the plainti£f by the civil law%

^ For the principal specific points of difference between stricti inrU and bonae
fidei indicia see on Bk. iv. 6. a8 snpr.

' Gains iv. 56. Cf. the description of this action given in Bk. iv. 6. 4 tnpr.

' £. g. si paret fhndmn . . . Anli Agerii esse^ if it be proved that the title to the
estate is in Anlus Agerios ; si paiet . . . Anlnm daze oportere, if it be proved that
he is under an obligation to convey; quicqaid paret . » . dare ^cere oportere^ what-
ever it be proved is the content of his obligation.

648 EXCURSUS X.

though (in actiones ficdtiae) belonging to him thus only by a fiction.
By the other, the iudex is directed to inquire, not, whether so and so
belongs, as of right, to the plaintiff, or whether the defendant is under
a civil obligation to do so and so for him ; but whether certain alleged
facts are true, and (if so) to find for the plainti£f; and such an Intentio
is said to be in factum concepta because it does not directly afiirm a
right, but only a state of facts, though, if the affirmation is found to
be true, the implied right is as clearly brought out by the instructions
to the iudex as if express reference had been made to it in the
formula.

Actions of this kind — in factum conceptae — form the great illus-
tration of the praetorian development of Substantive through Adjective
Law. The earliest mode in which the praetor conferred rights un-
known to the ius civile was by the employment of fictions. His
instructions to the iudex might be paraphrased thus : * The plaintiff
has, by the civil law, no right whatever against the defendant ; but i^
supposing so and so were the fact, he would be entitled iure civili, then
find for him in any case.' Sir Henry Maine has shown^ why this ex-
pedient was at first adopted in preference to openly altering the law.
* Fictions satisfy the desire for improvement, which is not quite want-
ing, at the same time that they do not offend the superstitious disrelish
for change which is always present At a particular stage of social
progress they are invaluable expedients for overcoming the rigidity of
law.' Eventually, however, the praetor discarded his original method,
and began to boldly grant independent actions in cases which bore no
analogy whatsoever to other relations already protected iure civilL The
intentio of such new actions could not allege a right in the plaintiff,
for there was, ex hypothesis no right by the civil law at all : but it could
allege a fact or facts, and the judge could be instructed to find for or
against the plaintiff according as he ascertained the allegation to be
true or untrue*. Actiones in factum conceptae, in short, are not
civil law actions at all : they are all derived from the impenum of the
magistrate'. The formulae of those which were of most frequent
occurrence were permanently incorporated in the album ; on these

^ Ancient Law pp. 26, 27.

' For examples of foimnlae in factum conceptae see Gains iv. 46, 47, and Keller,
Civil Process § 33 d.

' Hence the division of actions into civiles (or legitimae) and honorariae (Bk.
iv. 6. 3supr), the latter being those which were referable solely to the imperinm, and
had no foundation in the civil law at all ; they consist of the two classes of actioaes
utiles and in factum conceptae.

EARLIER HISTORY OF ROMAN CIVIL PROCEDURE. 649

others were modelled, and thus we get actiones in factum directae, and '
actiones in factum utiles. AU, however, so far as we know them, are
in personam, forming a third class of personal actions, co-ordinate with
stricti iuris and bonae fidei iudicia. The two latter are easily dis-
tinguishable from actiones in factum by their having an intentio in
ius concepta — ^which contains, i. e. the word *optorterej' but Savigny
is of opinion that the more equitable rules and free procedure of
bonae fidei actions were applied, so far as was possible, to actiones in
factum as well Under some circumstances, indeed, a plaintiff might
proceed either in ius or in factum ; Gaius points out (iv. 47) that this
was the case in depositum and commodatum, and possibly pignus
was equally privileged. Finally, an ordinary actio in factum, which
was always of purely praetorian origin, must carefully be distinguished
from the actio in £actum civilis (or praescriptis verbis), the remedy on
an innominate contract This was one of the bonae fidei actions, all
of which, having an intentio incerta {quicquid paret), had a demon-
stratio as well. But it was the function of a demonstratio to tech-
nically designate the actual ground of an action (sale, hire, etc.) ; and
it was the very essence of an innominate contract that it had no
technical name, so that the ground of an action upon it could not be
thus shortly set forth. The result was that for a demonstratio was
substituted a summary statement of the facts upon which the plaintiff
relied, praescripta verba, and the name of the action— civilis in factum
— related to this, though the intentio was still in ius concepta.

A third and rare part of a formula (to whose constituent elements
we now return) is the Adiudicatio (Gaius iv. 42), which is found only
in the formulae of iudicia divisoria, actions demanding a partition of
jointly-owned property on behalf of one of the co-owners. Its form
is given in the passage of Gaius referred to — quantum adiudicari
oportet, iudex Titio adiudicato — and it empowered the iudex not only
to divide the subject-matter of the action, but also, where an exact
division was impracticable, to establish usufructs and other partial
rights in order to redress the inequality. As, however, it could never
be certain, a priori^ that an equal partition would be possible, the
adiudicatio seems never to have stood by itself, but in loose com-
bination with a far more important and universal element in a formula,
viz. a condemnatio, by which the judge was enabled to impose a
pecuniary payment upon one joint owner in favour of another, to
whom a smaller than his due portion of the joint property had been
awarded.

The Condemnatio is, with very few exceptions, found in every

650 EXCURSUS X.

formula, being the clause in which the iudex is instructed to condemn
or absolve the defendant according to the truth or falsehood of the
plaintiff's allegations. The formulary procedure provided no direct
machinery for enforcing on a defendant delivery of specific property,
or specific performance of a contract, and consequently the gist of
the condemnatio alWays lay in a money payment (Gaius iv. 48). If
the object of the action was a liquidated debt, the condemnatio was
said to be certa (ib. 50), and the judge was instructed to condemn
the defendant in exactly that amount ; if he awarded a sum either
greater or less, he became liable quasi ex delicto, ' ut qui litem suam
fecerit ' (Bk. iv. 5. pr. supr.). This kind of condemnatio, mentioning
a specific sum, is found in condictio certi and in actions in factum
conceptae, which claim a liquidated penalty (as in Gaius iv. 46). In
all other actions thQ condemnatio was said to be incerta, and it was
the judge's duty 'litem aestimare,' to fix the sum payable by the
defendant if the plaintiff succeeded in establishing his case. Even
in condemnatio incerta a distinction has to be drawn. It may be
absolutely incerta (or, as Gaius calls it in iv. 51, infinita), the judge's
discretion in the litis aestimatio being completely unfettered ^ : or,
secondly, a maximum may be fixed in the formula, below which the
iudex may assess the damages, but which he cannot exceed without
exposing himself to the action quasi ex delicto ; here the condemnatio
was said to be incerta cum taxatione'.

Under the head of condemnatio it seems convenient to describe
the actio and formula arbitraria. As a general rule, the condem-
nation of the defendant depends upon one condition only, and that a
positive one, vjz. satisfactory proof of the plaintiffs right, or of the
facts alleged in the intentio : si paret . . . , condemna. But some-
times it was made to depend further on a second negative con-

' The following are examples, (i) In Real action— si paret . . . Auli Agexii
esse, qnanti ea res est, tantam pecpniam A. Agerio N. Negidiom condemna : si
non paret, absolve, (ii) In Personal action— quod . . ., qnicqnid paret ob earn
rem dare facere oportere, eius rei tantam pecuniam condemna: si non paret,
absolve.

' £. g. Index A- Agerio N. Negidinm duniaxat sestertipm 1^ millia condemna.
The commonest form of taxatio is where the maximum is fixed in lure by the
plaintiff subject to the praetor's approval, as was the case in the actio iniuriae
(Gaius iii. 334), and in penal actions in which the penalty depended on the valae
of an object, e.g. in furtum and rapina. There was, however, a different kind of
taxatio in those cases where the defendant was not personally liable for the whole
of what is properly the object of the action, but (e.g.) only so far as he has boen
enriched at the plaintifiTs cost, or only so far as a peculium extends (actio de
peculio).

EARLIER HISTOR V OF ROMAN CIVIL PROCEDURE. 6St

dition, viz. non-perfonnance by the defendant of some specific act,
which was introduced into the formula by the word nisi \ Such a
formula was called arbitraria, because, if the plaintiff established his
right against the defendant, the latter had the option of performing
the specific act, or in default of being condemned in damages : if he
did the former, he was entitled to absolution. Though no defendant
could be compelled by this form of action to deliver specific property,
or to perform his contracts, yet it was the nearest approach to a
specific enforcement made by the formulary system. The mode,
however, in which the damages were assessed was specially adapted
to induce a defendant to perform the act demanded in preference to
paying damages ; for the plaintiff was allowed to depose on oath
(iusiurandum in litem) as to the value to him of the object claimed,
or the pecuniary loss which he would suffer through the other's
breach of contract. The tendency seems to have been to favour
plaintiffs, and to accept their estimate without qualification, unless it
was outrageously unfair, so that the system may be conjectured to
have worked with tolerable success.

So far we have been concerned entirely with actions in personam.
Excluding the old procedure by sacramentum before the centumviral
court, there were two forms of real action, known respectively as
formula petitoria and the action per sponsionem. The first was the
great type of actio arbitraria, the intentio running ' si paret eam rem
Titii esse ex iure Quiritium neque eam rem Gaius arhitratu tuo
restituet [quanti ea res erit tanti Gaium Titio condemna,' etc.]. Here
the disputed right was tried directly and in the open light, instead, as
in sacramentum and the action per sponsionem, of being hidden
behind a wager; and the proceedings in iudicio, if the plaintiff

^ For examples of fonnulae arbitrariae see Mr. Poste's note on Gaius iv. 47. What
actions were arbitrariae is somewhat nncertain. Under them we may place without
hesitation real actions tried by formula petitoria and of remedies in personam those
praetorian actions which were brought to obtain restitution (e. g. doli, metus) :
for noxal actions see on Bk. iv. 8 supr. From the fact that bonae fidei actions
were sometimes called arbitria, it has been supposed that their formula was always
arbitraria. Mr. Poste thinks that only such of them as aimed at restitution (e. g.
deposit!, commodati, locati, rei uzoriae) were of this character. Thb view is to
some extent supported by the formula (in ius concepta) of the actio depositi in
Gaius iv. 47, if NR there may be taken to mean 'nisi restituat ;* but it may be
argued with some force that the formula of a bonae fidei action was not arbitraria,
because the index in such a suit had already, in virtue of his commission to decide
the matter ' ex fide bona,' all the power which such a formula could give him,
including that of absolving the defendant if he satisfied the plaintiff before
judgment.

652 EXCURSUS X.

succeeded in proving his case, consisted of a pronunciatio by the
iudex in his favour, and an arbitratus (ut reus rem restituat) based
thereon : if the defendant refused or was unable to make restitution,
there followed a iuramentum in litem and condemnation. The action
per sponsionem was closely modelled after the old sacramentum, the
existence of the right in rem which was at issue being tried as inci-
dental to a right in personam based upon a wager : but here the
wager was laid by a double stipulation, whereas in sacramentum it
was effected originally by actual deposit of the money. The claimant
of property challenged his opponent to a bet upon the title : si homo,
quo de agitur, ex iure Quiritium meus est, sestertios xxv nummos dare
spondes ? (Gaius iv. 93) ; and it was upon this promise that the suit
was brought, so that the action, though its proper and ultimate object
was a real right, in form was in personam. To secure delivery of
the object, along with its fruits and accessions, in the event of the
plaintiff's success, the defendant had personally to give security (pro
praede litis et vindiciarum), and the amount of the wager, being
merely trifling, was never exacted, whence its name sponsio prae-
iudicialis. For the same reason there was no restipulatio by the
defendant, as in condictio for recovery of pecunia certa credita*.

It remains to notice certain clauses which were sometimes inserted
in the formula at the instance of the defendant, viz. exceptiones and
praescriptiones pro reo. It was a peculiar rule of the formulary

^ This was the form of action employed in hereditatis petitio, in praetorian real
actions (e.g. Fubliciana), in suits relating to servitudes (confessoria and negatoria),
and perhaps in the actio finium regnndorum. It differed from the procedure per
sponsionem in the form of satisdatio entered into by the defendant. Gains iy. 91-

' It was but seldom, as has been observed above, that a formula consisted of all
the four ordinary elements (demonstratio, intentio, adiudicatio, condemnatio)
already described. The composition of the different classes of formula may be
summarised thus : —

(a) Those of (i) real actions, (a) personal actions which are certae and in ins con*
ceptae, and (3) actions in factum conceptae, have only intentio and condenmatia

(^) Those of personal actions which are in ins conceptae, but incertae, have, as a
general rule, demonstration intentio, and condemnatio ; the indicia divisoria, which
belong to this class, have an adiudicatio as well.

{c) Praeiudicia (for which see Gaius iv. 44) have only an intentio. Thus

The Demonstratio never stands alone ; it occurs only in personal actions which
have an intentio incerta in ius concepta, and a civile nomen (for in default of this
its place is supplied by praescripta verba, p. 649 supr.).

The Intentio is found in every formula.

The Adiudicatio occurs only in formulae of indicia divisoria ; and

The Condemnatio concludes every formula except those of praeiudicia, but can-
not stand alone.

EARLIER HISTOR Y OF ROMAN CIVIL PROCED URE. 653

system that the defendant was not allowed to plead some grounds
of defence in iudicio unless they had been alleged in iure, and the
judge's attention expressly called to them by an addition to the
formula. Exceptiones are pleas of this character : dbfences which
do not actually traverse the allegation of the plaintiff, but set up a
countervailing right, rendering the former of at least no present value,
and which, if they are to be successfully pleaded, require (though to
a larger extent in some classes of actions than in others) to be tersely
embodied in the formula, by an addition to the intentio, instructing
the iudex to condemn the defendant only on the fulfilment of two
conditions instead, as usual, of one, viz. {a) a positive condition, si
paret, etc. : {b) a negative condition, non-proof by the defendant of
his plea in defence. Thus the material nature of an exceptio is that
it is a plea of a countervailing right ; its form is that of a negative
condition of the condemnatio, introduced by the words ' si non ' or
an equivalent ; and its place in the formula is between the intentio
and the condemnatio. A simple illustration is found in the exceptio
pacti (Gains iv. 116) ; e. g. Aulus owes Titius money, for which the
latter promises not to sue, and then nevertheless brings his action ;
Aulus would repel him by the exceptio * si inter Aulum et Titium non
convenit ne ea pecunia peteretiu:.' The usual Roman classifications
of exceptiones are noticed in the text (Bk. iv. 13) and commentary ;
the answer to the question, in what classes of actions this peculiar rule
had the widest operation, depends on the character of the intentio.
The more special and definite the intentio, the more likely was it
that the defence would consist in the allegation of a countervailing
right rather than in a direct traverse of the plaintiffs claim. In real
actions, accordingly, it was the rule that defences other than a simple
denial of the intentio must be expressed in the formula. In personal
actions a distinction must be drawn. In condictio the same rule
applied ; but in bonae fidei indicia the intentio claimed only what the
defendant owed ex fide bona, so that any defence which alleged want
of good faith on the plaintiff's part was practically a complete traverse
of the tatter's claim, and so need not be introduced into the formula
as an exceptio. This the Romans expressed in the maxim 'doli
exceptio bonae fidei iudiciis inest ; ' which may perhaps be expanded
into a general rule, that in bonae fidei actions defences by way of
countervailing right need not be alleged in iure so far as they were
grounded on equity and bona fides, but only where they were based
on the ius civile, or on rules of procedure ^.

' See Keller, Civil Process % 25. In this respect actions with a formnla in

654 EXCURSUS X.

Sometimes the plaintiff could meet an exceptio by an answer of
the same kind; he did not deny its truth, but set up a second
countervailing right of his own — an exceptio to an exceptio. This
was called a replicatio, and was inserted in the formula by the words
* aut si/ or an equivalent And this kind of sparring between the
parties might lead further to a duplicatio, a triplicatio, and so on ;
illustrations of which will be found in Gaius iv. 126-129.

Praescriptiones pro reo do not differ substantially from exceptiones.
In the earlier part of the formulary period many defences by way of
countervailing right were clothed in a peculiar form, being placed at
the head of the formula, after the appointment of the iudex, whence
their name praescriptiones. This was frequently the case when the
defendant's contention was that the action ought not to be tried at
all, because it would prejudge a 'causa maior' (praescriptio prae-
iudicii) ; and the purpose of thus placing the objection in the fore-
ground was to indicate to the iudex that he was first to examine into
its truth or falsehood, and if he found it well grounded, to suspend
the hearing until it was removed by the decision of the larger suit.
Other objections of the same character were that the action was
beyond the competence of the court (praescriptio fori), or was barred
by lapse of time (praescriptio temporis) ; and the actual form they
took was the same as that of praescriptiones pro actore (p. 644 supr.),
viz. ea res agatur, etc. ; see Gaius iv. 133. The practice of formu-
lating such objections merely as exceptiones had commenced as
early as Cicero (de invent, ii, 20), and Gaius tells us (iv. 133) that in
his time praescriptiones of this kind were entirely obsolete : in speciem
exceptionis deducuntur. The change was material ; for now, if the
defence was established, the defendant was entitled to acquittal ;
whereas before, when it took the form of a praescriptio, the hearing
was only suspended, and he might be condemned after all.

The proceedings in iure may now be imagined at an end. Their
object was to formally define the issues to be tried in the action ; to
give a legal form to a dispute which had hitherto existed only as a
matter of fact When this had been done, and the formula finally
drawn up, the magistrate had no more to do ; he was said ' iudicium
dare,' the ' res ' was ' in iudicium deducta ;' iudicium takes the place
of ius. This stage in the proceedings, at which the action passed
from praetor to iudex, or, according to Roman ideas, at which it first

factum concepta do not seem to have been on the same footing with those which
were bonae iidei.

EARLIER HISTOR V OF ROMAN CIVIL PROCEDURE. 655

became an action at all, was called litis contelstatio ; no longer 4
solemn appeal to witnesses, but merely a name retained for con-
venience sake from the older system to mark a moment most eventful
for the parties, and attended by important consequences which are
described in detail by Mr. Poste ^

Of the proceedings in iudicio Gaius gives us no information ; they
consisted, of course, of evidence and argument, and may be passed
over in favour of matters of which we have more accurate knowledge.
Assuming, however, that they terminate in a sententia for the plaintiff
(condemnatio), two new questions present themselves. Firstly, is
the judgment final? or is there any system of appeal? And,
secondly, how is the defendant compelled to pay the money in
which he has been condemned ? in other words, what are the pro-
ceedings in a Roman execution ?

The strictly co-ordinate authority of the 'magistratus maiores' in
republican Rome excluded the possibility of a true appellate juris-
diction in the pre-imperial period. At that time, in fact, the sententia
of a iudex did not admit of revocation or alteration save by the
process of in integrum restitutio (note on Bk. iv. 6. 33), though it
must be remembered that judgment in an ordinary action was not
absolutely final; for the defendant, who was presumptively con-
demnatus, could contest its validity by refusing to pay the sum in
which he had been condemned, and defending himself, at the risk
of condemnatio in duplum, against the actio iudicati brought for its
recovery. This, however, was not an appeal, which implies the
rehearing of the suit by a higher tribunal. With the fall of the Re-
public a regular appellate jurisdiction was rapidly developed, and the
privilege of 'appealing unto Caesar' was soon understood to be
common to citizens of Rome all over the empire, Under Augustus
the praefectus urbi was judge of appeal for Rome, and a vir con-
sularis, though sitting in the capital, bore the same relation to each

^ Note on Gaius iii. 180. Briefly, the effects of litis contestatio in the formulary
period are as follow : —

(i) It in effect consumes the plaintiff^s right of action : res in indicium deducta
est, and de eadem re bis experiri non licet, (a) It operates quasi-contractually to
engender an obligation, binding on them, to abide by the indicium whatever its
result. (3) It interrupts prescription of the right of action. (4) It affects the
amount of the condenmation by being supposed to be followed immediately by
judgment : see Poste, p. 450. (5) It converts the object of the suit into ' res
litigiosa,* and thus makes its alienation unlawful pendente lite, Gaius iv. 117.
(6) It prevents any subsequent change in the parties without complete reconstruction
of the formula (Translatio).

656 EXCURSUS X.

of the provinces. Nero invested the Senate with a supreme appel-
late jurisdiction co-ordinate with his own, and by the time of M.
Aurelius the right had been established of appealing from the sen-
tentia of a iudex to the magistrate who appointed him. Thus the
tribunals had gradually arranged themselves in a definite series of
higher and lower instance, and a suit might be carried from iudex to
Emperor through the appointing municipal magistrate, the praetor
or praeses, and the praefectus urbi or praetorio in succession. The
procedure on appeal was that which will shortly be described as
* extraordinaria,' dispensing, in its commencement, with the ordinary
institution by formula, and terminating in a decretum, not a sen-
tentia ; definite periods of time were prescribed within which the
appeal must be lodged, and its various stages completed. A power-
ful check on rash appeals was the obligation of the appellant to pay
quadruple costs to his opponent if he failed, in addition to a penalty
equal in value to one third of the object in dispute.

The simplest mode of executing a judgment for a liquidated sum
would seem to be to seize, by state agency, a sufficient amount of the
debtor's property, and from the proceeds of its sale to satisfy the
creditor's claim ; should his property be insufficient, to make him a
bankrupt Putting aside the exceptional application of pignoris capio
in the legis actio period, this distinction between execution for debt
and execution in bankruptcy was not recognised by the Romans
until the Empire. If a man would not satisfy a judgment which had
been recovered against him, there was no alternative but to proceed
as in a case of genuine insolvency. For a very long while indeed
the Romans did not even allow at all that direct and immediate
execution upon a debtor's property which seems the natural and
reasonable mode of satisfying a creditor's claims : with true legal
conversatism they clung closely to the conception of an obligation
as a personal right, a right which availed only against the debtor's
person, and not against property of any kind : for immediately it
conferred any right against the property, it ceased, /n> tanto^ to be
an obligation. It is the person, they said, who is obligatus, and it is
the person to whom the creditor must look to be paid ; there is no
execution except personal execution, and it is for the debtor to say
whether he will save himself by sacrificing his property *.

The earliest execution procedure is that of manus iniectio as regu-

^ As to the greater antiquity in the Roman system of personal ezecation, which
is denied by Savigny, see note on Bk. iii. la snpr.

EARLIER HISTOR V OF ROMAN CIVIL PROCEDURE. 657

lated by the Twelve Tables, which is described at length by Mr. Poste
in his note on Gaius iii. 77. As has already been observed, its seve-
rity was mitigated by a lex Poetelia, and, though abolished as a legis
actio by the lex Aebutia, it was retained in its milder form by the
praetor under the formulary system, during which the damnatus in an
actio iudicati, if the debt remained unpaid for thirty days, was brought
before the magistrate, and unless he discharged it at once, or gave
security * iudicatum solvi ' through a vindex who undertook his de^
fence, he was * addictus ' to the creditor, and remained in a condition
of quasi-servitude until by his own labour or the intervention of
friends the debt was extinguished.

As distinct from this personal execution, execution against the
property was first employed only in the case of debts owed to the
state. If a man were condemned upon a criminal charge to a pecu-
niary penalty, and refused or was unable to pay, the praetor would
grant possession of his estate to the quaestors, who sold it to the
highest bidder (sector). This principle was first extended to private
debts by a praetor called, according to Gaius (iv. 35), Publius Ruti-
lius, apparently the Rutilius who was consul b.c. 105, after whose
reform * Proprietary ' execution was called bonorum emptio or ven-
ditio \ The procedure is fully described by Mr. Poste in the note
already referred to. The creditor or creditors were put in possession
of the bankrupt's estate by the praetor ; then, at fixed intervals, fol-
lowed three decrees ; the first advertising the sale, the second autho-
rising the creditors to choose from among themselves a ' magister ' to
superintend it, and the last enabling them to publish the leges of
conditions under which it would take place. Finally, after a third
interval, the estate or universitas iuris was put up to auction, and
knocked down to the highest bidder, i. e. the person who practically
offered the creditors the highest percentage on their claims, and who
was regarded, by a fiction, as the bankrupt's heir, in which character
he sued the debtors of the estate; or, as an alternative for this
fiction, he might employ the formula Rutiliana (Gaius iv. 35), in
which he was represented as the insolvent's agent, the insolvent being
named in the intentio, and himself in the condemnatio. These
proceedings did not exempt the after-acquired property of the
bankrupt from the claims of his creditors, who could take action

^ The acts of bankruptcy, as they might be called, upon which bonorum yenditio
lay are specified by Galas (iii. 78), the cases being those of a debtor absconding
(latitans) or indefensus, a judgment debt unsatisfied for thirty days, and decease of
the debtor leaving no lawful successor civil or praetorian.

U U

658 EXCURSUS X.

against bim repeatedly until they had been satisfied in full ; and in
consequence of them he became infarais. For many years creditors
seem to have had the privilege of choosing between the two systems,
the debtor having no means of saving himself from the semi-servitude
of the older procedure if his adversary preferred it to bonorum ven-
ditio ; but by the introduction of cessio bonorum, under one of the
first two Caesars, this ceased to be the case under ordinary circum-
stances. The nature of cessio bonorum has already been described
in the note upon Bk. iii. 12 supr.

It has been observed that (apart from certain exceptional cases
under the legis actio procedure) we meet with no execution for de^t
proper until the empire. It then became usual for the magistrate,
upon the application of a judgment creditor, to send an officer of
the court (apparitor, viator) to seize as much of the debtor's property
as would cover the debt. This was held for two months by way of
pledge or security, at the end of which, in default of payment, it was
sold, the debt discharged, and the surplus, if any, returned to the
debtor. This is not unfrequently called pignoris capio (e. g. Cod.
viii. 23 ' si in causa iudicati pignus captum sit '). Another change in
this department of law is found in the procedure in actiones arbi-
trariae for exhibition or restitution. The defendant was no longer
allowed to retain the object on condition of paying damages ; the
plaintiff could demand direct execution of the judicial arbitratus
manu militari, the defendant being condemned only in a sum equi-
valent to fruits and accessions consumed or wasted. We read of
this first in Ulpian, and it seems to have come into use only quite at
the end of the formulary period : how fer the principle was applied
to the specific performance of contracts is uncertain.

Though the * ordo iudiciorum privatorum,' or system under which
judicial proceedings were divided between magistrate (ius) and iudex
(iudicium) was the regular mode of trying suits for centuries after
the abolition of Statute-Process, cases not unfrequently occurred
which the praetor reserved altogether for his own cognisance, and
heard throughout and determined without reference to a iudex ; in
these the cognitio was said to be ^ extraordinaria,' i.e. outside the
* ordo ' or usual procedure. At first such cases were those only in
which a iudicium proper was impossible, or at any rate would in
some degree have shocked the Roman sense of what was fit and
proper, on account either of the nature of the application, or of the
relation between the parties; e.g. complaints of slaves against their
masters, freemen against their patrons, children against their pater-

EARLIER HISTOR Y OF ROMAN CIVIL PROCEDURE. 659

familias, and pupils against their guardians, especially in respect of ^
maintenance, claims for fees (honoraria) irrecoverable at law, and
fideicommissa. A petition addressed to the praetor on any of these
matters was properly called persecutio ; the other party was sum- "^
moned before him by one of his lictors, and, though incidental points
(e.g. aestimationes and questions of account) were often referred to
arbitri for examination and report, he heard and determined the
matter in person. The decision was called decretum, not sententia, ,
a distinction whose significance will be readily comprehended ; a
decretum depended for its effect and validity on the imperium, not
the iurisdictio, of the magistratus decemens ; accordingly it was not
necessarily binding on any other magistrate who was not his political
subordinate, and therefore was in effect subject to revocation and
revision by others as well as by himself*.

The constant tendency of the praetor to enlarge the sphere of his
extraordinaria cognitio, after the establishment of the empire, at the
expense of the regular procedure by formula, paved the way to the
total abolition of the latter. An even stronger influence, which was
perpetually working against the ordo iudiciorum privatorum, was the
new appellate jurisdiction ; for, as has been observed, formulae were
employed only in courts of lowest instance '• Eventually the formu-
lary procedure was abolished by Diocletian, a.d. 294, magistrates
being compelled to hear and decide suits themselves through all their
stages ; and even when, from stress of business, they were obliged to
refer an occasional action to a iudex, their relation to the latter was
no longer that of the older system ; the proceedings were no longer
divided between ius and iudicium, but the whole of them were dele-
gated ; magistratus and iudex, so far as the administration of justice
is concerned, are interchangeable terms. As is observed by Mr. Poste',
the libellary procedure in use in the time of Justinian was essentially
the same as cognitio extraordinaria ^

^ For one very important branch of the extraordinaria cognitio (in integrum
restitutio) see note on Bk. iv. 6. 33 snpr.

' A sure index of the increasing activity of the extraordinaria cognitio is the
frequent use of the expression * index pedaneus * (xa/MuScMtar^s, Theophilus) by the
classical jurists. This originated in the practice of calling the magistrate himself v
' iudcx,* which was only natural when he took to personally hearing and deciding
many actions ; ' iudex pedaneus ' is the index instructed by formula.

* Gaius p. 657.

^ Cf. Bk. iv. 15. 8 supr. Several topics which are of importance in the formulary
procedure have been omitted in this excursus because they demand discussion under
the later system as well, and consequently are touched upon in the notes to the text of
Bk.iv: e.g. Processual Agency, Title 10; Satisdatio, Title 11 ; Prescription and Pen-
dency, Title 12 ; Interdicts, Title 15 ; Restraints upon reckless Litigation, Title i6«

U u a

INDEX TO THE TEXT.

{The references are to the respective Books ^ Titles, and Sections.)

aooeptilatio, iii. 29. i.

aooessio, title to young of domestic
animals, ii. i. 19 ; to island rising in
river, ib. 23: by river changing its
course, ib. 23 : of purple woven into
a garment, ib. 26 : by maedificatio, ib.
29: of plants to soil, ib. 31, and of
crops, lb, 32 : of writing to parch-
ment, ib, 33: but by an anomaly
' tabula picturae cedit,* ib. 34.

acquisition through slaves, i. 8. i :
ii. 9. 3 : iii. 17. i : through usufruc-
tuary slaves, ii. 9. 4 : through alienus
servus bona fide possessed or free
man bona fide serviens» ii. 9. 4:
through children in power; the old
law modified by Justinian, ii. 9. i :
cf. iii. 17. I : through eztraneae per-
sonae, ii. 9. 5 : acquisition of contrac-
tual rights through slaves and chil-
dren in power, iii. 28. pr. : through
free men and alieni servi bona fide
possessed, ib. i : through usufructuary
slave, ib. 2 : through slave jointly
owned, ib. 3*

acta, i. II. 12: i. 12. 8: ii. 7. 2 : iv.

II. 3.
aotio, defined, iv. 6. pr. : divided into in
rem and in personam, ib. 1 : actions
in rem are for recovery of property,
ib., or of iura in re aliena, tb.2: ac-
tions relating to the latter either af-
firmative or negative, ib. : real actions
introduced by the praetor, ib. i\ ex-
emplified by actio Pnbliciana, ib. 4 :
the converse action, ib. 5 : actio Ser-
viana and quasi-Serviana, ib. 7: prae-
torian actions in personam exempli-
fied by actiones recepticia, de pecunia
constituta, de peculio, etc., ib. 8 : prae-
torian penal actions, ib. 1 2 : praeiudi-
cial actions, ib. 13: ownersoip can-
not be claimed by actio in personam,
ib. 14: actions divided into rei per-
secutoriae, poenae peisecutoriae, and
mixtae, ib. 16 : actions rei persecuto-

riae exemplified, ib.i*j\ so with those
poenae persecutoriae, ib. 18, and mix-
tae, ib. 19 : actions called mixtae be-
cause partly in rem, partly in perso-
nam, e. g. actio fiuniliae erciscundae,
ib. 20 : actiones in simplum conoep-
tae, ib. 22 : in duplum, ib, 23 : in
triplum, ib. 24: in quadruplum, ib.
25: actiones bonae fidei and stricti
iuris ; the former enumerated, ib. 28,
and characterised, ib. 30: actiones
arbitrariae, ib. ^i\ actions in which
the whole debt is sometimes not re-
covered, e. g. de peculio, ib. 36 : de
dote, ib. 37 : actions by child against
parent, fieedman against patron, part-
ner against partner, etc., ib. 38 : con-
currence of actions de eadem re, iv.
9. 1 : actions perpetual and temporal,
iv. 12. pr.: penal actions, how far
they can be brought against the of-
fender's heir, ib. i : may be brought
by heir of injured person, except actio
iniuriarum, tb. : cases in which actions
ex contractu cannot be brought ar
gainst the heir, ib. : defendant entitled
to absolution if he satisfies the plain-
tiff ante rem iudicatam, ib. 2.

actio ad exhibendum, iv. 6. 31.

bonorum vi raptoram, iv. 2 : who

can bring it, ib. 2.

calumniae, iv. 16. i,

communi dividundo, iii. 27. 3 ; iv.

6. 20: iv. 17. 5.

de eo quod oerto loco promissum

est, iv. 6. 31 : ib. 33.

de eo quod metus causa, iv. 6. 25 ;

ib, 27 : ib. 31.

deiecti aut effusi, iv. 5. i.

de peculio, iv. 6. 8 : tb. 10.

de peculio et in rem verso, iv. 7.

4: »^. 5-
de pecunia constituta, iv. 6. 8

and 9.

exercitoria, iv. 7. 2.

ex stipulatn, iii. 15. pr.

familiae erciscundae, iii. 27. 4:

iv. 6. 20 : iv. 17.4.

662

INDEX TO THE TEXT.

actio finiam regandorum, iv. 6. 20 : iv.
17.6.

furti, ii. I. 34: iv. I : iv. la. pr.:

who can bring it, iv. i. 13-17: is
purely penal, U>. 19.

in fectum, iv. 3. 16 : iv. 5. 3.

institoria, iv. 7. 2.

noxalia, iv. 8. pr. : caput sequitur,

i^.*5 : in cases of pauperies, iv. 9. pr. :
form of condemnation in, iv. 17. x.

petitoria, iv. 15. 4.

poenalis, in heredem non transit,

iv. 3. 9: iv. 12. I.

positi aut suspensi, iv. 5. i.

praescriptis verbis, iii. 24. i and 2.

Publiciana, iv. 6. 4: ib, 31.

qua quaeritur an actor iuraverit,

iv. 0. 8: ib, ii.

quasi Serviana, iv. 6. 7 : 1^, 31.

quod iussu, iv. 7. i : ib. 5.

reccpticia, iv. 6. 8 and 9.

rei uxoriae, formerly bonae fidei :

merged by Justinian in actio ex sti-
pulatu (de dote exigenda), to which he
gives a bonae fidei character, iv. 6. 29.

servi corrupti, iv. i. 8 : iv. 6. 23.

Serviana, iv. 6. 7 : lA 31.

suspecti tutoris, i. a6. 3 : ib. 8.

tributoria, iv. 7. 3 : ib, 5.

utilis, ii. I. 34: ii. 23. 4: legis

Aquiliae, iv. 3. 16.

aotor tutoris, i. 23. 6.

addictio bonorum libertatis causa, in-
troduced by M. Aurelius, iii. 11. pr.
and I : advantages of, ib. 2 : allowed
where slaves are manumitted by codi>
cils only, ib. 3: limitations on its
application, ib. 4: effect upon, of in
integrum restitutio of non-accepting
heir, ib. 5 : extension of it by inter-
pretation, ib. 6: Justinian*s consti-
tution on the subject, ib. 7.

ademptio of legacies, ii. 21. pr.

adgnatio, iuris nomen, i. 15. 3, cf. iii. i.
1 1 : effect of capitis deminutio on, I .
15- 3 .* degrees of, how reckoned, iii.
6.8.

aditio of inheritance, ii. 19. 5 : how
made, ib. 7.

adiudicatio, iv. 17. 4-7.

adoptio, its two forms, i. 11. i : Jus-
tinian's changes in the law of, ib. 2,
and their effect on the law of intestate
succession, iii. 1. 14: imitates nature,
i. II. 4 : its extent and limits, ib, 4-7 :
effects of, ib. 8 : who cannot adopt,
ib. 9 and 10: adoption of slave, ib.
12 : adoptio plena extinguishes patria
potestas, i. 12. 8: confers agnatic
rights, iii. 2. 2.
adoptivi liberi, are in potestas, i. 11.

pr. : contrasted with natural es liberi
m respect of intestate succession, iii.
T. 12.
adquisitio per adrogationem, intro-
duced by custom, iii. 10. pr. : see
adrogatio.
adquisitio rerum singularum iure na-
tural!: occupatio, ii. I. 12: accessio,
ib. 19: alluvio, ib. 20: specificatio,
ib, 25 : confusio, 1^. 27 : commixtio,
ib. 28 : traditio, ib, 4a
adquiaitio rerum singularum iure d-
vili : usucapio, ii. 6. pr. : donatio, ii.
7. pr.: per ius adcrescendi, ii. 7 4.
adquisitio per universitatem, the four

kinds of, ii. 9. 6.
adrogatio, i. 11. i : of impubes, id. 3 :
i. 22. I : effect of, upon children of
adrogatus, i. 11. 11 : rights of adro-
gatus on intestacy of natural ftither,
iii. I. 10: effect of, on property of
adrogatus, iii. 10. i : change in the
law by Justinian, ib. 2 : effect of, oq
debts owed by adrogatus, ib. 3.
adsignatio libertorum, iii. 8: introduced
by a senatusconsult, ib, pr. and 3:
who may be assigned, and to whom,
ib. I : case in which ' adsignatio evan-
escit,' ib. 2 : form of such assign-
ment, ib. 3.
Aediles ouroles, their edicts, i. a. 7 :

iv. 9. I.
aequitas, ii. i. 40: iii. i. 9.
agency, in acquisition of ownership
and possession : see aoqaiaition.

contractual : see mandatixm, and

iv. 7.

in procedure ; formerly permitted

only in four cases: introduction of
procurators as processual agents, iv.
10. pr.: mode of appointment, ib. 1.
agnates, who are, i. 15. i : iii. a. i and
2 : agnatorum curatio, i. 23. 3 : females
as agnates, iiL 2. 3 : their rights a-
bridged by the media iurisprudentia,
but the law of the XII Tables re-
stored by Justinian, ib., who also
gives agnatic rights to uterine bro-
thers and sisters and their children,
ib. 4 : all agnates in the same degree
succeed equally, ib, 5: no limits to
the distance at which they may claim
the relationship, iii. 5. 5.
alienation, by non-owners, e.g. of
pledge by pledgee, ii. 8. i : in some
cases forbidden even to owners, e. g.
with dotale praedium, ib. pr. : by
pupil without guardian's auctoritas,
ib, 2 : in fraud of creditors, iv. 6. 6.
alluvio, defined, ii. i. 20 : doubtful case
o( ib, ai.

INDEX TO THE TEXT.

663

animaU ferae naturae, ii. i. 12 : bees,
ib. 14: pigeons, ib. 15: domestic
fowls and geese, ib» 16.

anixnua domini, in connection with
renunciation of ownership, ii. i. 48.

aulmna revertendi, a test of domes-
ticity in animalsi ii. i. 15.

arra, iii. 33. pr.

Atilioinua, ii. 14. pr.

aactoritas tutoria, where and where
not necessary, i. 21. pr. and 1 : ii. 8. 2 :
required for aditio hereditatis and
such kinds of acts, ib. i : mode in
which it shonid be given, ib. 3.

▲usustus, i. II. II : it 12. pr.: ii. 23.
1, 1^. 12 : ii. 25. pr.

B.

bankraptey, avoided by institution of
a necessarins heres, ii. 19. i : by
addictio bonorum libertatis causa, iii.

11. I : form o^ under Justinian, ii!.

12. pr. : see bononun amptio* bo-
norum poMOisio, oeuio bonorum.

benelioium competentiae» iy. 6. 36-
38.

divisionis, iii. 20. 4.

separationis, ii. 19. I.

bona fide poaaeaaion, ii. i. 33. 34, 35 :
ii. 6. pr., ib. 3 and 7 : iv. 17. 2.

bona vacantia, ii. 6. 9.

bona vi rapta, iv. 2. pr. : the action on
the delict praetorian, ib.\ amount of
the penalty, ib.y cf. iv. 6. 19 : always
implies dolus malus, ib» 1 : constitu-
tions of earlier emperors as to the
violent taking of property on the plea
that it is one*8 own, ib, : iv. 15. 6 :
the thing raptnm need not be in bonis
of the plaintiff, iv. 2. 2.

bonorum emptio, obsolete under Jus-
tinian, iii. 12. pr.

bonorum poaaeaaio, as a preliminary
to bankruptcy proceedings, i. 26. 9 :
iii. 10. 3 : iii. 1 2. pr.

a form of inheritance introduced

by the praetor to amend the ius ci-
vile, iii. 9. pr. : or in some cases to
confirm or supplement it, ib. i : three
kinds of, ib, 3 : time fixed by the
praetor within which it must be
demanded, ib, 8 : dies utiles only
reckoned, ib, 9: imperial constitu-
tions made any expression of inten-
tion to accept sufficient, ib. 10 : bo-
norum possessio intestati, its degrees,
iii. 9. 3 : unde liberi, iii. 1.9: unde
cognati, iii. 1. 13: iii. 2. 3: iii. 3. pr. :
can be claimed only by relations

within the sixth degree, with one
exception, iii. 5. 5: certain of the
degrees or classes made unnecessary
by Justinian, viz. unde decem per-
sonae, iii. 9. 4, tnm quam ex familia
and unde liberi patroni. etc, ib, 5,
unde cognati mannmissoris, ib, 6:
bonorum possessio contra tabulas, ii.
13. 3 : iii. I. 12 : iii. 9. 3 : bonorum
possessio secundum tabulas, ii. 17. 6:
iii. 9. 3 : bonorum possessio ex lege,
uL 9. 7.

oalunmia, ii. 23. 12 : iv. 16. i.

oapitia deminutio, defined, i. 16. pr. :
its three kinds, ib. : maxima, defined
with examples, ib. i : minor or media,
ib. 2 : minima, ib. 3 : of tutor or
pupil, its effect, i. 22. 4: effect of*
on deminutns' will, ii. 17. 4 and 6 :
minima, no bar to succession under
SC*. Tertttllianum and Orfitianum,
iii. 3. 2.

Gaaaiua, iii. 24. 4^

Oato, i. II. 13.

oausa adrogationis, L 11. 3 : mannmis-
sionis, see iusta cauaa : tiaditionis,
ii. I. 40: possessionis, ii. 6. pr. :
falsa, in usucapio, ii. 6. 1 1 : in lega-
cies, ii. 20. 31 : lucrativa, ii. 20. 6 :
omnia causa (fruits, accessions, etc.),
iv. 17. 3.

cautio, as evidence of stipulation, iii.
19. 12, ib. 17 : of loan, iii. 21.

by usufructuary owner of res qnae

usn consumuntur; ii. 4. 2 ; in cases of
bonorum addictio libertatis causa, iii.
II. I and 2 : dedolo, de persequendo
servo, etc., iii. 18. i: iuratoria, iv. 11.
2 : see aatiadatio.

OelauB, ii. 20. 12.

oeaaio bonorum, iii. 25. 8 : iv. 6. 40 :
iv. 14. 4.

cburohf the, legislation in favour of,
iii. 27. 7 : iv. 6. 19, ib, 23, ib. 26 : iv.
16. I.

Olaudiua, iii. 3. i.

codex of Theodosius, iii. i. 16.

oodioilli, origin of, in Augustus* reign,
ii. 25. pr. : no necessity for preceding
will, ib, 1 : need not be expressly
confirmed in a will subsequently
made, ib, : hereditas cannot be given,
nor exheredatio be made in, though
both and other things may be done
by codicillary fideicomroissum, ib. 2 :
any number may be made, and no
solemn form required, ib. 3.

664

INDEX TO THE TEXT.

oognftU, distingaished from agnati, i.
15. I : Ui. 6. 1-3.

oognotio, effects of capitis deminutio
on, i. 15. 3 : i. 16. 6 : the degrees of,
redconed in the ascending, descending,
ukI collateral lines, iii. 6. pr. : enu-
merated, ib, 1-6 : each generation
removes the relationship by one de-
gree, ib. 7 : genealogical table of, ib,
9 : cognatio among slaves, ib. xo.

oelonus, ii. li 36 : iv. 6. 7 : iv. 15. 3.

oommixtio, ii. i. 28.

oommodatuiu, iii. 14. a : distinguished
from mutnnm, ib, : is gratuitous, ib. :
who can sue, if res commodata is
stolen, iv. i. 16.

eompenaatio, originally allowed only
in bonae fidei actions: extended to
those stricti iuris by a rescript of
M. Aurelius : Justinian's changes, iv.
6. 30: ib. 39.

Gondemnatio in an action : must be
certae pecuniae or rei, iv. 6. 3a.

oondicio, in connection with dies, i.
20. I : iii. 15. a : iii. 16. a : iii. 19.
5 : iii. 36. I a : iii. 39. 3 : iv. 6. 33.

eondictio, on mutuum, iii. 14. pr. and
I : on stipulatio, iii. 15. pr. : origin
and definition of, iv. 6. 15 : furtiva,
ii. I. 36 : iv. I. 19 : iv. 6. 14 : inde-
biti, iii. 14. i, cf. iii. 37. 6 : cases of
solutio per errorem in which it is
excluded, iii. 27. 7.

oonditiona in institution of heir, ii.
14. 9 : in legacies, ii. 3o. 33 and 35 :
impossible, in vrills, ii. 14. 10: in
stipulations, iii. 19. 1 1 : alternative
and conjunctive conditions in wills,
ii. 14. XI.

conitisio, ii. i. 37.

oonsilium, in manumissions^ i. 6. 4 :
distinguished from mandatum, iii.
a6.6.

oonsolidatio, ii. 4. 3.

oonstitutio Antonini, i. 8. a.

Justiniani, i. 5. 3 : i. 6. 2 : i. 7.

pr. : i. 10. pr. and 13: i. 11. 3 and
13 \ i. 13. 4, ib. 6 : i. 19 : i. ao. 5 : i.
33. pr. : i. 35. 13 : ii. i. 8 and 40: ii.
4. 3 : ii. 6. pr. and 14 : ii. 7. i. 3. 3
and 4 : ii. 8. I and 3 : ii. 9. i : ii. 11.
pr. and 6 : ii. 13. 3 : ii. 13. 5 : ii. 14.
pn : ii. 16. x : ii. 18. 3, 3 and 6 :
li. 19. 6 : ii. 30. 3, 33, 37, 34, 35
and 36: ii. 33. 13 : iii. x. 3, 14 and
16: iii. 3. 3. 4. 7 and 8 : iii. 3. 4: iii.
6. 10: iii. 7. 3 and 4: iii. 9. 4 and 5 :
iii. 10. 1 : iii. II. 7 : iii. 19. I3 : iii.
31. pr. : iii. 33. pr. : iii. 37. 7 ; iii.
38. pr. : iii. 39. 3 : iv. 6. 8, 34, 35,
30, 33: iv. 13. 3: iv. 16, i: iv. 18.8.

oonstitutio Leoniana, iii. 15. 1.

Seven, iL 6. 13 : iii. 9. 5.

Zenonis» ii. 6. 14 : iiL 34. 3 : iv.

4. 10 : iv. 6. 34 : iv. 13. 10.

oonstitutiones, defined, i. 3. 6 : gene-
rales and personales, ib.

constitutiim, the action on, iv. 6. 9.

oonstruction of terms in a will, i.

oontinuatio dominii, m suooession of
sui heredes ab intestato, iii. i. 13:
temporis, in usucapio, ii. 6. 13 and 15.

oontraotB, the four kinds of, iii. 13. 3 :
most of them originate in the ius gen-
tium, u 3. 3 : innominate, iii 24. i
and 3 : performance of, in respect of
place, iii. 15. 5, and of time, iii. 19.
36 and 37 : impossibility of perform-
ance, ib. 2". see obligatio.

contracts of slaves and children in
power, liability of master and pater
on, iv. 7 : the actio quod iussu, ib. i :
actiones exercitoria and institoria, ib.
3 : tributoria, ib. 3 : de peculio et in
rem versoj ib. 4 : plaintiff generally
has option between some of these
remedies: their respective advantages,
ib. 5 : sometimes can bring eondictio
as alternative, ib. 8.

oonttunaoia, iv. 17. 6.

correi promittendi and stipulandi, iii.
16.

costs of suit, iv. 16. I.

criminal prosecutions, see indicia
publica.

cura, a munus publicum, i. 35. pr.

curator, i. 31. 3 : who have curators:
minors, i. 33. pr. : furiosi and pro-
digi, ib. 3 : idiots, deaf, dumb, etc,
ib. 4: curator, where appointed, in
addition to tutor, ib. 5 : mode of
appointment, ib. 1 and 3 : cannot be
forced on a minor ' praeterquam in
litem,* ib. 2: can be appointed sd
certam causam, ib. : satisdatio of, i.
24 : iv. ii» pr. : competition for sole
administration between two or more
curators, i. 34. i : procedure where
none of several curators offers satis-
datio, ib. : magistrates responsible for
their appointments, ib. 3-4 : grounds
of excuse from serving the office of
curator or tutor, i. 35 : viz. having a
certain number of children, ib. pr. :
being employed by the fiscus, ib. i :
absence rei publicae causa, ib. 2 : lis
de omnibus bonis vel hereditate be-
tween ward and tutor or curator, ib.
4 : already serving three such offices,
ib. 5 : poverty, ib. 6 : extreme ill-
health, ib. 7 : want of education, i6.

INDEX TO THE TEXT.

66s

8 : malicious appointment by pater,
ib. 9: irreconcileable enmity with
pater, ^. 11, or 'status controversia/
ib, I a : old age or minority, ib. 13 :
being a soldier, ib. 14, or a gramma-
ticos, rhetorician or physician ' intra
nnmemm,' tb. 1 5 : allegation of ex-
cnse, how and when to be made, ib. 16.
oustomaiy Iiaw (ins non scriptum, di-
ntnmi mores), i. a. 9 : ii. 16. pr. : iii.
10. pr. : iv. 17. pr.

damnnm iniurla datum, governed by
the lex Aqnilia, iv. 3. pr. : its first
chapter (unlawful killing of slaves and
certain animals) and penalty, tb. :
animals hereunder included, ib. i :
' unlawful killing ' more precisely de-
fined, ib. 2 : illustrations, ib. 4-8 :
does not include accident, ib. 3 : lia-
bility for culpa nnder the statute, ib. :
meaning of the penalty, ib. 9 ; exten-
sion of the statute by construction, ib.
10 : plaintiff may elect between civil
remedy and a criminal prosecution,
ib. 1 1 : second chapter of the statute
obsolete, ib. i a : third chapter, relat-
ing to all other kinds of damnum, ib.
13 : penalty imder, ib. 14, 15 : iv. 6.
19 : actio utilis or in factum under,
iv. 3. 16.

dediticii, i. 5. 3 : iii. 7« 4.

deduotio de peoulio, iv. 7. 4.

defensor, iv. 11. 5 : defensores civita-
tum, i. ao. 5.

deportstio in insulam, i. la. i : i. aa.
I : iv. 18. a, 7, 8 and 9.

depoaitum, iii. 14. 3 : no set-off allow-
ed in action on, iv. 6. 30 : miserabile,
iv. 6. 17 and a3.

derelictum, what is, ii. i. 47 and 48.

dies, see oondicio : dies cedit, ii. ao.
ao and 3a: venit, iii. 15. a.

Digest, the, references to, i. 10. 11: iii.
a3. a : iv. 6. a, 5 and 37 : iv. 13. 6 :
iv. 14. 3: iv. 18. la.

dignitas, loss of, no capitis deminutio,
i. 16. 5.

diligentia, iii. 14. a. 3 and 4 : iii. a4.
5 : iii. a5. 9 : iii. a7. i : iv. i. 17.

dispensatoT, iii. a6. 10.

divi firatres, L a5. 6.

dolus and culpa, iii. a3. 3 : iii. 35. 9 :
iv. I. 17 ; iv. 3. 3 and 14.

donatio, inter vivos, differs from that
mortis causa in the difficulty of revo-
cation, ii. 7. a : necessity of tradilio
for, ib. : insinuatio in acta, how far

necessary, ib. : in certain cases revo*
cable, ib. : mortis causa, defined, ib.
I : assimilated in legal treatment to
legacy, ib. : propter nuptias, ib. 3.

dos, i. 10. la: ii. 7. 3: ii. ao. 15: iii.
I. a : iii. 19. 4 : iii. 34. 3 : actions for
recovery of, iv. 6. 39.

dotale praedium, lex lulia relating to,
ii. 8. or. ; new legislation of Justin-
ian, ib.

dotis exactio, i. 10. la.

retentio, iv. 6. 37.

duplioatio, iv. 14. i.

eleotio in legacies, ii. ao. 22, 33 : in
alternative stipulation, iv. 6. 33.

emanoipati, their rights in intestate
succession, iii. i. 9: rights of eman-
cipator, iii. a. 8.

emanoipation, old form of, i. i a. 6 :
by imperial rescript, ib. ; Justinian's
changes in the law of, ib. : rights of
emancipator over emandpatus, ib. :
cannot be enforced by children, ib. 9 :
its effect on the peculium, ii. 9. a :
pater allowed to retain usufruct of
half, ib. : emancipation under Justin-
ian always implies a fiducia, iii. a. 8.

emphyteusis, iii. 34. 3: the law of
Zeno confirmed by Justinian, ib,

emptio venditio, the contract con-
cluded as soon as the price is agreed
OD, iii. 33. pr., except where the par-
ties agree that it shall be in writing :
Justinian's change, ib.: vendor not
bound to convey unless the price is
paid, or security or credit given, ii.
I. 41 : where fixing of the price is
left to a third person, iii. 33. i : price
must be in money: former doubts
whether exchange was a distinct con-
tract, ib. 2 : periculum rei venditae,
ib. 3 : conditional sales^ ib. 4 : pur-
chase of things extra commercium :
remedy of purchaser if deceived by
vendor, ib. 5.

exceptio, a form of defence to an
action, iy. 13. pr« : in some cases
statutory, in others praetoriauj ib. 7 :
perpetua or peremptoria, ib. 9 : tem-
poralis or dilatoria, ib. 10 : effect of
prosecution of suit in face of the
latter, ib., iv. 6. 33 : ex persona di-
latoria, iv. 13. II : exceptio of prin-
oipal debtor usually available to his .
surety, iv. 14. 4.

exceptio doli mali, ii. i. 30, 32, 33
and 34: iv. 13. i.

666

INDEX TO THE TEXT.

exoeptio in factnm composita, It.

13. I.

iurisiiiTaDdi, iv. 13. 4.

metas causa, iv. 13. i.

nisi bonis cesserit, iv. 14. 4.

pacti conventi, iii. 15. 3 : iv. 13. 3.

pecuniae non nnmeratae, iii. 21 :

iv. 13. 3.

procuratoria, iv. 13. 11.

rei a fisco cmptae, etc., ii. 6. 13.

rei iudicatae, iv. 13. 5.

ezheredatio, of filinsfamilias, mnst be
made nomioatim, ii. 13. pr. : of
daughten, grandchildren, etc., in
power, may be made inter ceteros,
ib. : of postumi, ib. i : of persons
postumonim loco, ib, 2\ of emanci-
pati, required by the praetor, ^. 3
and 4 : of adoptive children, ib. 4 :
Justinian's changes in the law of,
ib, 5 : not necessary in a military tes-
tament, ib, 6 : nor in will of mother
or maternal ancestor, ib. 7.

eztinotae res, ii. i. 26.

fldeioommimaril, may witness will
under which they take, ii. 10. 11.

fldeicommiBSTun, impossible condition
in, taken pro non scripto, ii. 14. 10 :
at first less strictly interpreted than
legacy, ii. ao. 3 : to incertae personae,
ib, 35 : to be executed after heir's or
fideicommissarins' death, ib, 35 : ori-
ginally not binding in law, ii. 23. i :
made binding by Augustus, ib, : con-
ditions of, under a will, ib, 2 : fidei-
commissa pura, sub condicione, and
ex die certo, ib, : position of fidei-
commissarius, as quasi-heir or quasi-
legatee, ib, 3 : relation between heres
and fideicommissarins under the SC*.
Trebellianum and Pegasianum, ib, 5-
9: case of heres being directed to
retain some single thing, equal to,
more, or less than his fourth, ib. 9 :
fideicommissa ab intestato, ib, 10:
fideicommissarins may himself be
made fiduciarius, ib, 11 : method of
proving fideicommissa ab intestato,
ib, 1 2 : fideicommissa of res singulae,
may be imposed on legatee as well as
on heir, ii. 34. pr. : what may be
given in this way, ib, i : usual form
of fideicommissa, ib, 3.

•fldeiuBBio, can precede the principal
obligation, iii. 30. 3 : mode of creat-
ing m Greek, ib, 7 : document in evi-
dence of, proof of the contract, ib, 8.

fideiuaaora, iii. 30. pr. : can be added
to any obligation, civil or natural, ib.
1 : their contract binds their heirSt
ib. 3 : cofideiussors bound each in
solidum, ib. 4 : cannot be bound for
more than the principal debt, ib, 5 :
meaning of ' more,' ib. : paying 6de>
iussor has actio mandati against his
principal, ib. 6 : can generally plead
except iones open to his principal, It.
14.4.

flduoia, in emancipations, iii. 3. 8.

filiuafamilias, contracts of, iii. 19.6:
iv. 7 : delicts of, iv. 8. 7.

fiscna, usucapio of prop>erty of, ii. 6. 9 :
purchase of res aiienae from, ib. 14:
change in the law by 2Seno, ih.\
succession by, to reus perduellionis,
iii. I. 5: to intestate persons, iii.
II. 1.

freemen, either ingenui or libertini, i.

3-5.

fiructos, become property of usufruc-
tuary only by perceptio, iL i . 36 : what
the term comprehends, ib. 37 : fructas
consumpti, ii. i. 35 : iv. 17. 2 and 4:
fructus percepti, belong to bona fide
possessor, ii. i. 35 : cf. iv. 17. 2
and 4.

foriosua, consent of, not necessary for
his children*s marriage, i. 10. pr. : as
tutor, i. 1 4. 2 : cannot make a will,
except in a lucid interval, ii. 13. i :
cannot witness a will, ii. 10. 6 : con-
tracts of, iii. 19. 8: curator of, i-

33. 3-
f^irtum, derived, iv. i . 2 : defined, ih.
I : implies animus furandi, ii. 6. 5 : !▼.

1. 7 and 18 : the kinds of, ib, 3 : ma-
nifestum and nee manifestum, ih.\
conceptum, oblatum, prohibitum, and
non exhibitum, obsolete in Justinian's
time, ib, 4 : penalties for, ib. 5 : in
connection with commodatum and
pignns, ib, 6 and 7 : with sctstis
corruptus, ib, 8 : of free persons, ib, 9 :
of res sua, ib, 10 : of domestic ani-
mals, ii. I. 16 : law of, in relation to
res extinctae, ib, 26 : furtum of pro-
perty thrown out to lighten a vessel,
ib. 48 : usucapio in relation to, ii. 6.

2, 3, 4 and 6 : of immoveables, im-
possible, ib. 7: accomplices in fiir-
tum, iv. I. 11: assistance necessary
as well as advice to render an accom-
plice liable, ib. : by filiusfamilias or
slavey of property of pater or domi-
nuB, ib. 12: by impubes, ib. 18: the
different actions on, ib, 19 : iv. 6, 14
and 18.

INDEX TO THE TEXT.

667

Gaiofl, iv. 18. 5.

GalluB Aquilius, iii. 29. 3.

Qordian, ii. 19. 6.

H.

habitatioi a ius in re aliena distinct
from usQs and usasfmctas: its ex-
tent, ii 5. 5.

Hsdzian, ii. i. 39: ii. 10. 7: ii. la.
pr. : ii. 19. 6 : ii. 20. 25 : iii. 3. 1 :
epistola of, iii. 20. 4.

hereditaa, either ex testamento or ab
intestato, ii. 9.6 : mode of calculating
the shares in, ii. 14. 5-8 : damnosa,
ii. 19. 5 : legitima, ii. 19. 7 : iii. 2.

herea, his obligation to discharge lega-
cies quasi contractual, iii. 27. 5.

extraneua, ii. 19. 3 : must have tes-

tamentifactio at three times, ih. 4 : is
entitled to an interval for deliberation,
ib, 5 : after aditio made cannot re-
linquish unless a minor, ib. : certain
earlier exceptions to this rule, ib, 6,
which is much modified by Justinian*s
introduction of the inventory, ib. :
modes of acceptance and refusal, ib. 7.

necesaarius, ii. 14. i : defined, ii.

19. 1 : his^ beneficium separationis,'ii^.

8U118 et neoessariuB, defined, and

the name explained, ii. 19. 2 : iii. i. 2
and 8 : permitted by the praetor to
abstain from the inheritance, but not
after immixtio, ib. 5 : need not make
aditio on intestacy, but succeeds ipso
iure, iii. 1.3: females as sui, repre-
sented by their children after decease,
iii. I. 15 and 16: suus heres iure
postliminii, iii. 1.4: suus heres bar-
red from the succession where the
ancestor has been adjudged guilty of
treason, ib. 5.

houaeholda of the emperor and em-
press, ii. 6. 14.

hypotheca, ii. 6. 14 : distinguished
from pignus, iv. 6. 7 : tacit, of wife,
for restoration of dos, ib. 29 : of
dotale praedium, ii. 8. pr. : as security
in an action, iv. 11. 4,

I.

inaedifioatlo, a species of accessio, ii.

I. 29 and 30.
inoertae personae, defined, ii. 20. 25 :

traditio to, ii. i. 46: sub certa dc-

monstratione, iL ao. 25.
Iniiuiiia, of tutor removed for dolus, i.

36. 6 : the penalty of condemnation
in certain actions, iv. x6. 2.

InDuitia, iii. 19. 10.

ingentii, who are, i. 4. pr.

ingenuitaa, intermediate slavery no
bar to, i< 4' !•

iniuria, dehned, iv. 4. pr. : comprises
abuse, libel, etc, ib. i : through
whom it may be suffered : children in
power and wife, ib. 2 : slaves, ib. 3 :
to joint-owners through servus com-
munis, ib. 4 : iniuria through usufruc-
tuary slave, ib. 5 : to free man or
alienus servus bona fide serviens or
possessed, ib. 6 : penalty of, accord-
ing to the XII Tables, altered by the
praetor, ib. 7 : lex Cornelia on, ib. 8 :
iniuria atrox, defined, ib. 9 : plaintiff
can choose between civil and crimi-
nal remedy, ib, 10: viri illustres may
bring or defend criminal prosecution
through a procurator, ib. : accessor-
ies, ib. X I : right to sue extinguished
by dissimulatio, ib. 12.

in lua Tooatio of parent or patron
without praetor's permission, iv. 6.
la : iv. 16. 3.

inainuatio, see acts.

inatitatio of heir, ii. 14 : who may be
instituted, ib. pr. and 12 : institution
of servus proprius and alienus, ib. pr. :
effect of manumission and alienation
on institution of slave, ib, i : institu-
tion of servus hereditarius, or one
belonging to an unknown person, ib.
2 : of slave owned in oommon, ib. 3 :
of postumus alienus, ii. 20. 28 : of
the emperor for improper purposes,
ii. 17. » : any number of htiis may
be in^tituted, ii. 14- 4 : institutio sub
condicione, ex tempore, and ad tem-
pus, ib. 9: impossible condition in
institution taken pro non scripto, ib.
10: institution preceded by legacies
or manumissions^ ii. ao. 34 : poenae
nomine, ib, 36.

interdicts, their nature> iv. 15. pr. :
most usual in disputes about posses-
sion, ib. : prohibitory, restitutory and
exhibitory, ib, I : adipisoendae pos-
sessionis, ib, 3 : retinendae posses^i-
onis, ib, 4: recuperandae possessionis,
ib. 6 : simple and double, ib. 7 : pro-
cedure, ib. 8.

interdictum quorum bonomm, iv. 1 5 . 3 .

Salvianum, iv. 15. 3.

unde vi, iv. 1 5. 6.

uti possidetis, iv. 15. 4 and 7.

utrubi, iv. 15. 4 and 7.

Interpretatlo of the XII Tables, i. 17 :
iv. 18. 5 : of the lex Aquilia, iv. 3. 10.

668

INDEX TO THE TEXT.

intestaoy, defined, iii. i. pr. : sacces-
sion OD« given by the XII Tables first
to sui heredes, iii« 1. 1, diyision among
them being per stirpes, ib, 6 : time to
ascertain who is suns heres, ib» 7 ;
given by the XII Tables after sni to
the nearest agnate, iii. 2. pr. : time to
ascertain who is nearest agnate, ib. i
and 6 : no successio gradnnm among
agnates till Justinian, ib, 7 : succes-
sion of mother to children under SC.
Tertulliannm, iii. 3: her rights en-
larged by Justinian, ib. 4 and 5, sub-
ject to her duty of procuring them
tutors if impnberes, ut. 6 : succession
of children to mother under SC. Orfi-
tianum, iii. 4: succession after sui
and agnates or those adgnatorum loco
given by the praetor to cognates, iii.
5. pr. : meaning of intestacy in con-
nection with tntela legitima adgna-
torum, i. 15. 3.

inundatio, effect of on title to land, ii.
I. 34.

inventory, the, ii. 19. 6.

index, his duties, iv. 5. pr.: iv. 17 : to
decide according to law and custom,
ib, pr. : in noxal actions, ii^. 1 : in
real actions, ib, 2 : in actio ad exhi-
bendum, ib. 3 : in actio familiae er-
ciscundae, ib. 4 : communi divtdundo,
ib. 5 : finium regundonim, ib, 6.

indicia, omnia absolutoria, iv. 13. a :
omnia hodie extraordinaria, iii. la.
pr. J iv. 15. 8.

indioia pnbllca, contrasted with civil
suits, iv. 18. pr. : meaning of the
term ' public,* ib. 1 : some of them
are capital, ib. 3*

inria praeoepts, i. 1.3.

ixirisprndentia, defined, i* i. I4

ins, divided into publicum and priva-
tum, i. I. 4 ; publicum defined, ib. :
privatum defined, ib. : is tripertitum,
ib. : naturale, defined, i. a. pr. : civile,
distinguished from ius gentium, i. a.
I : its two species, ib. 10 : subject to
change, ib. 11 : gentium, proceeds
from naturalis ratio, i. a. i j is com-
mon to all men, ib, a, and unchange-
able, ib, 1 1 : identified with ius natu-
nde, ii. I. II : older than ius civile,
ib. : scriptum and non scriptum, i. a.
3 : six sources of the former, ib. :
honorarium, i. a. 7 : Romanum, its
three main heads, personarum, rerum
and actionum, i. 3. pr.

iuB adoresoendi, a civil mode of ac-
quisition, ii. 7. 4: the law relating
to, altered by Justinian, ib, : under a
willy in consequence of praeteritio of

sous heres, iL I3.pr. : among l^timi
heredes on intestacy, liL 4. 4.

inaiurandnxn taken by litigants, iY«
16. I : de calnnmia, tb.

iuata oanaa manumissionis, i. 6. 4-6 :
adquisitionis, ii. i. 55 : iL 6. pr. :
poKessionis, ii. 6. pr. and 10.

Instinns, ii. 7. 3 : ii. la. 4.

inatitia, defined, i. i. pr.

Labeo, ii. 35. pr.

Iiatini luniani, i. 5. 3 : succession to,
iii. 7. 4 : modified by the SC. Largi-
anum and an edict of Trajan, ib. :
Latinitas abolished by Justinian, ib.

legacy, wrongly placed in the Insti-
tutes, ii. 30. pr. : defined, ib. i : the
four old forms of, ib. a : all assimi-
lated, and made recoverable by iden-
tical femedies, ib. : placed by Justin-
Ian on the same footing with fidei-
commissa, ib. ^: iii. 37. ^ : what
things may be bequeathed, li. ao. 4 :
burden of proof on legatee, ib. : le-
gacy of thmg in pledge, and heir*s
Obligation to redeem, ib. 5 : of res
aliena, when legatee becomes its owner
vivo testatore, ib. 6 : legacy of same
thing to same person in two different
wills, ib. : of non-existent thing, ib.
7 : of the same thing to two persoins
coniunctim and disiunctim, ib.^: of
fundus alienus, in which legatee al-
ready has usufruct by causa lucrativa,
ib. 9 : of res legatarii, void, ib. 10 :
of res sua quasi aliena, ib. 11 : ali-
enation or mortgage in whole or part
by testator of thing previously be-
queathed, ib, 13 : legacy of release
from a debt, or of extension of time
for payment, ib.i^: of money already
owed, whether pur&, in diem, or sub
condicione, ib. 14 : of dos from hus-
band to wife, ib, 15: destruction or
deteriomtion of res legata, without
fault of the heir, ib, 16 ! manumission
by heir of slave bequeathed by testa-
tor, ib. ! legacy of andlla witii diil-
dren, of slave with peculium, of farm
with stock, of ordinarius senrus with
vicarii, ib, ij : of flock of sheep, ib.
18 : of house with fixtures, sA. 19: of
a peculium, ib. ao : of res incorpor-
ales, e. g. a nomen, ib, ai : election in
legacies, ib.29: legatum optionii, »6.
33 : the law chanied by Justinian,
ib. : legacies void from want of tes-
tamenti&ctio in legatee, ib, 34 : so

INDEX TO THE TEXT.

669

too formerly if legatee were an in-
certa persona, ib. 25, or a postmnus
alienus, ib. a6 : Justinian's change in
the law, ib. 27 : mistake in name of
heir or legatee, ib. 39 : falsa demon-
stratio in legacy, ib. 50 : fidsa cansa,
ib. 31 : legacy to slave of the heir, ib.
32 : to master of instituted slave, ib,
33: legalisation by Jnstinian of legacy
before institution of the heir, ib» 34 :
legacy to be paid after death of heir
or legatee, not lawful before Justin-
ian, ib. 35 : legacy given or transfer-
red poenae nomine, tb. 36 : impossible
condition in legacy, taken pro non
scripto, ii. 14. 10 : ademptio of lega-
cies, ii. 21. pr. : translatio, ib. i : li-
mitation of legacies by leges Furia,
Voconia, and Falcidia, ii. 22. pr. : in
singulis heredibus ratio legis Falci-
diae ponenda est, ib. i : time of esti-
mating the Falcidian fourth, ib. 2 :
funeral expenses, etc. first deducted
from the estate, ib. 3 : legacy per
damnationem, iii. 27. 7.

legatees, can witness the will under
which they take, ii. jo. 11 : partiary,
ii. 25. 5.

legitima pars : see quvrta e lege Fal-
cidia.

legitimation, modes of, i. 10. 13 :
effect of, in making children sui he-
redes, iii. I. 2.

LentuluB, ii. 25. pr.

Iieo, iii. 15. I : iii. 19. 14.

lex, defined, L 2. 4.

Aelia Sentia, i. 5. 3 : i. 6. pr. : ib.

4 and 7 : Anastasiana, iii. 5. 1 :
Aqnilia, iii. 27. 7 ; iv. 3 (see damnniu
inioria datum): Atilia, i. ao. pr.
and 3 : Atinia, iL 6. 2 : Cornelia, de
fidsis, ii. 12. 5 : iv. 18. 7 : de iniuria,
iv. 4. 8 : de sicariis, iv. 18. 5 and 6 :
duodecim Tabularum, see Twelve
Tables : Fabia de plagiariis, iv. 18.
10 : Falcidia, ii. 17. 3 : ii. 22 : ii. 23.

5 : iv. 6. 33 : Furia testamentaria, ii.
22. pr. : Fufia Caninia, i. 7. pr. :
Hortensia, i. 2. 4 : Hostilia, iv. 10.
pr. : lulia, de ambitu, iv. 18. 11 : de
adulteriis, ib. 4 : de annona, ib, 11 :
de praedio dotali, ii. 8. pr. : de resi-
duis, iv. 18. II : de vi publica aut
privata, iv. 15. 6 : iv. 18, 8 : maies-
tatis, iv. 18. 3 : peculatus, iv. 18. 9 :
repetundarum, ib. 1 1 : lulia et Plau-
tia, ii. 6. 2 : lulia et Titia, i. 20. pr.
and 3 : lunia Norbana, i. 5. 3 : iii. 7.
4: Innia Velleia, ii. 13. 2 : Papia
Poppaea, iii. 7. 2 and 3 : Pompeia, de
pamcidiis, iy. 18. 6 : regia, i. a. 6 ;

Voconia, ii. 22. pr. : Zenoniana, iii.
24. 3 : iv. 6. 33.

libellus conv-entionis, iv. 6. 24.

Uberatio legata, ii. 20. 1 3.

libertas, defined, i. 3. i : legacy of, to
incerta persona, onoe void, ii. 20. 25 :
given poenae nomine, by will, ib, 36 :
given per fideicommissum, ii. 24. 2.

libertini, defined, i. 5. pr. : formerly of
three kinds, ib. 3 : liberti cives, ib. :
intestate succession to, under the XII
Tables, iii. 7. pr. ; as amended by
the praetor, ib, i, and by the lex
Papia, ib.2: as finally settled by
Justinian, ib. 3 : adsignatio of, see
adsignatio.

lis oresoens, cases of, iii. 27, 7 ; iv. 6.
26: iv. 16. I.

locatio conduotio, analogy of its rules
to those of sale : contract concluded
as soon as merces is agreed upon, iii.
24. pr. : same rule as in sale if merces
is left to be fixed by a third person,
iii. 23. 1 : iii. 24. i : cases resembling
locatio conduclio, but really innomi-
nate contract, ib, 1 and 2 : cases
doubtful whether belonging to sale
or locatio conductio, S. 3 and 4:
duties of conductor, ib. 5 ; they de-
scend to his heirs, ib. 6.

lucrativae causae, concurrence of, ii.
20. 6.

manoipitim, i. 3. 3.

mandatum, a gratuitous contract, iii.
26. 13 : its five modes, ib, pr. : man-
datum for sole benefit of mandator,
ib. I : for joint benefit of mandator
and agent, ib. 2 : for sole benefit of
third person, ib. 3 : for joint benefit
of mandator and third person, ib. 4 :
for joint benefit of agent and third
person (mandatum qualificatum), ib.
5 : for benefit of agent alone, con-
silium rather than mandatum, ib, 6 ;
mandatum contra bonos mores, not
obligatory, ib, 7 : agent must not
exceed the terms of his commission,
ib. 8 : revocation of mandatum before
execution, ib. 9 : death of either party
terminates the commission, except
where subsequently executed through
ignorance, ib. 10: mandatum need
not be undertaken, but if accepted
must be executed, ib. 11 : mandatum
in diem and sub condidone, ib, 1 2,

manumissio, defined, i. 5. pr. : its
modes, ib. i : time of, ib. 2 : in fraud
of creditors, avoided by lex Aelia Sen*

670

INDEX TO THE TEXT.

tia, L 6. pr. : implies animus frand-
andi, ib, 3 : change in law of manu-
mission by minors, ib. 7: by will,
limited by lex Fuiia Caninia, i. 7.
pr. : not a capitis deminntio, t 10.
4 : of slave jointly owned, ii. 7. 4 :
impossible condition in testamentary
mannmission, taken pro non scripto,
ii. 14. 10 : who cannot manomit, i. 6.
pr. and 4.

Marcellua, i. 4. pr. : ii. 5. 5.

matrimonium, defined, i. 9. x: pro-
hibited degrees, i. xo. x sqq.

merx peouliaris, iv. 7. 3.

method of the Institutes, i. i. a.

military testament, does not require
the usual number of witnesses, ii. 11.
pr., or other ordinary forms, ib. : may
be made only while on actual service,
ib. and 3 : if oral, a witness necessary,
ib. 1 : may be made by a deaf or
dumb man, ib. 2 : remains in force
only a year after discharge;, except in
case of unfulfilled condition, ib. 3 :
confirmation on actual service of a
non-military will irregularly made, ib.
4 : effect of capitis deminutio on, ib.
5 : not invalidated by absence of ex-
heredatio, ii. 13. 6 : legacy in, to
incerta persona, once void, ii. ao. 35 :
legacy poenae nomine in, ib. 36.

minor, as tutor, i. 14. a.

minua petitio, iv. 6. 34.

mistake, in wills, ii. ao. 39 : in con-
tracts, iii. 19. 33 : in statement of
claim in an action, iv. 6. 35.

mntuum, deimed, iii. 14. pr. : by pupil
without tutor's auctoritas, iL 8. a.

N.

neoessarios heres, i. 6. i : institution
of slave as, equivalent to manumis-
sion, ib. a : see heres.

negotiornm ge8tio,iii. 37. i.

Nero, ii. 33. 4.

Nerva, ii. i a. pr.

nomexi, in literal contract, iii. ai.

noYatio, iii. 39. 3.

nozae datio. iv. 8. pr. : justified in
principle, ib. a : ownership of surren-
dered slave passes to surrenderee, but
slave may demand manumission if he
can get the damages paid, ib. 3:
some actions noxal legibus, others
edicto praetoris, ib. 4 : actio noxalis
caput sequitur, ib. 5 : effect of noxia
committed by slave against his own
master, ib. 6 : noxae datio as applied
to children in power obsolete under

Justinian, ib. ';: its application in
cases of pauperies, iv. 9.
nuptiae, ^fined, i. 9. 1 : instae, con-
ditions of, i. 10. pr. : see maftrimo-
nium.

O.

obligatio, defined, iii. 13. pr. : divided
into civil and praetorian, ib. 1 : into
contractual, quasi-contractual, delic-
tual, and quasi-delictual, ib. a : re
contracta, iii. 14: verbis contiacta,
iii. 15 (see stipulatio) : litteris ccn-
tracta, iii. ai : consensu contracta, iii.
33. pr. : naturalis and dvilis, iii. aow
I : quasi ex contractu, ilL 37: ex
maleficio or delicto, four species, iv.
I. pr. : quasi ex maleficio or delicto,
iv. 5 : obligations, how extinguished,
iii. 39 : solutio, ib. pr. : acceptila-
tio, ib. I : novatio, ib. 3 : contraria
voluntas, in consensual contracts,
ib.j^.

oocnpatio of wild animals, ii. i. la:
when complete, ib. 13, cf. iv. 9. pr.:
of bees, ii. I. 14: of pigeons, f^. 15 :
of enemies and their property, ib, ij i
of gems and stones found on the sea-
shore, ib. 18 : of island rising in the
sea, f^. 33 : of treasure trove, ib. 39 :
of res derelicta, ib. 47.

optio, legacy of, ii. 30. 33.

oroinuB, ii. 34. 3.

ordinaria and extraordinaria indicia,
iii. 13. pr. : iv. 15. 8.

Papinian, i. 35. 3 : i. a6. 7 : ii. i. 8 :
ii. 6. 9: ii. 3o. 14: ii. 35. i : iiL

parentea, as tutores l^tim]« i. 18.

partitio, ii. 33. 5.

patriciatus, i. 13. 4.

patroni, as tutores legitlmi, i. 17.

FauluB, ii. 14. pr.

pauperies, iv. 9.

peouliujn, Justinian's changes in the
law of, ii. 9. 1 : iii. 10. 2 : iii. 38. pr. :
legacy of, ii. 30. ao : castrense, ii. 9.
I : ii. 13. pr. : quasi-castrense, iL 11.6.

peroeptio nuotunm, see fmctua per-
oepti.

performance of contract, impossi-
bility of, iii. 19. 3.

permutatio, a contract distinct from
emptio venditio, iii. 33. a.

peraonarom ius, all men free or slaves.

INDEX TO THE TEXT.

671

i. 3. pr. : sni or alieni inris, i. 8. pr. :
those alieni iuris in either dominica
or patria potestas, ib. : those sai
inris sometimes in tntcla or cura,
i. 13. pr.

Fertinax, ii. 17. 7.

pignoris capio, i. 24. 3.

plgnoTum diatraotio, ii. 8. i.

pignuB, ii. 8. i : iii. 14. 4: iii. 19. ao :
iv. I. 14 : iv. 6. 7 : iv. 15. 3.

Fiua Antoninus, i. 8. a : i. 25. 8 and
z8 : i. 26. 3. 4 and 9 : ii. 6. 9 : ii. 15.
3 : ii. ao. 4.

plebisoitum, definedi i. a. 4.

plebfl, distinguished from populns, i.
2.4,

plus petitio, formerly had the effect of
losing plaintiff his case, iv. 6. 33 :
plus petitio re, tempore, loco and
causa, ib. : law of, as settled by Zeno
and Justinian, ib,

poenae, in stipulations, iii. 15. 7: te-
mere litigantium, iv. 16.

poenae aervxu, modes of becoming, i.
la. 3.

Fomponitts, ii. 10. 5.

posaesaio, meaning of the term, iv. 15.
5 : acquisition o?, through slaves and
children in power, ii. 9. 3 : through
usufructuary slaves, alieni servi bona
fide possessed, and free man bona
fide serviens, ib, 4 : through extraneae
personae, ib. 5 : possession bona and
mala fide, ii. i. 33-35 : ii. 6. 3 and
7 : pro herede, iv. 15. 3 : pro pos-
sessore, ib. : possessio or praescriptio
longi temporis, ii. 6. pr. : ii. 9. 5.

postliminium, i. la. 5 : i. ao. a : ii. i.
17: ii. I a. 5.

postumns, exheredatio of, ii. 13. i and
a : persons postumorum loco, ib» a :
in substitutions, ii. 16. 4 : alienusi, de-
fined, ii. ao. 26 : when a suus heres,
iii. I. a.

potestas dominica, is iuris gentium,
i. 8. I : limited by Pius Antoninus,
ib. a.

patria, 1. 9 : peculiar to Rome, ib.

3 : over whom it extends, ib. : modes
in which it is extinguished : death of
paterfamilias, i. 12. pr. : deportalio
of parent or child, ib. i : parent's be-
coming poenae servus, ib. 3: child's
being elevated to patiiciate, ib. 4:
capture of parent or child and death
in captivity, ib. 5 : emancipation, ib.
6: adoptio plena, t^. 8: case of grand-
child conceived before, but bom after,
son*s emancipation, i. la. 9.

praeteritio of sui heredes, etc., ii. 13.
pr.

praetor, heredem facere non potest, iii.
9. a : fideicommissarius, iL 33. 3 :
praetor's edict, i. a. 7 : i. la. 6 : con-
trasted with lex, iii. 9. 2.

principum plaoita^ have the force of
law, t a. 6 : their ^)ecies, ib.

proourator, acquisition through, ii. 9.
5 : mode of appointing, iv. 10. x :
satisdatio by, iv. 11. pr.

prodigus, cui bonorum suorum admi-
nistratio interdicta est, under a cura-
tor, i. 33. 3 : cannot make a will, ii.
13. a.

proTOoatio, iv. 11. 4.

pubertas, age o^ exactly fixed by Jus-
tinian, i. 33. pr.

pnblioatio, iii. 35. 7 : iv. 1 8-^8.

pupillus, loan by, without auctoritas,
ii. 8. a : payment to, without aucio-
ritas, ib. : payment by, without auc-
toritas, ib. \ solutio per errorem to.
iii. 14. I : contracts of, iii. 19. 9 and
10.

quarts Antonina, i. 1 1. 3.

quarta e lege Falcidia, ii. 17. 3: ii. 22.

pr. and i.
querella inoffioiosi testamenti, ii. 18.

pr. : who may bring it, ib. i : iii. 1.

14: may be brought only as a last

resource, ii. 18. 2, 3 and 6.
Quirites, Quirinus, i. 2. 3.

ralegatio, in insulam, i, 13. 3.

replicatio, iv. 14. pr.

repraesentatio, ii. 30. 14.

rerum ius, ii. i. pr.

res, in pAtrimonio or extra patrimo-
nium, ii. i. pr. : conmmnes, ib. i :
publicae, ib. 3: nniversitatis, ib. 6:
res of which the use is public, ib. 4 :
res nullius, ib. 7, 13 sq. 17, 18, 33 :
res sacrae, ib. 8: rel^osae, ib. 9:
sanctae, ib. 10: res lingulorum, be-
come so either iure gentium or inre
dvili, ib.w. res corporales, ii. 3. i :
incorporales, ib. 2 and 3 : legacy of,
ii. 30. 31 : res mobiles and immo-
biles, different treatment of, ii. 6. pr.,
3 and 7 : iv. 15. 4 : res fungi biles, iii.
14. pr. : quae usu consumuntur, iL 4. 3.

responsa prudentium, i. i. 8.

restitutio in integrum, iv. 6. 33.

restitutio of inheritance under a fidei-
commissum, ii. 33. a.

67*

INDEX TO THE TEXT.

Babinians and Fro<raliaixfl, ii. i. 25 :
iii. 25. 2 : iii. 26. 8.

saBotio, meantng of the^erm, ii i. 10.

satiadatio, the old ''law of, in real
actions, ir. n. pr. r in personal ac-
tions, ib, I : the law in Justinian*s
time, when the parties appear in per-
son, ib, 2 : where there is a procura-
tor, tb, 3, or a defensor, id, 5 : satis-
datio iudieattfm solvi, td. pr., i, 4
and 5: ratam rem dominum habitu-
rum, id. pr. and 2.

Soaevola,!. 25. 16.

seashore, common: property, ii. i/ i :
its use public, id. 5 : defined, id. 3.

semestria, i. 25. i.

senatusoonsnHiiin, defined, - i. 2. 5 :
Afinianum, iii. 1. 14: Claudianum, iii.
12. I : Largianum, iii. 7. 4: Mace-
donianum, iv. 7. 7: Orhtianum, iii.
4: Pegasianum, ii. 23. 4 and 7 :
Rufi et Scapulae, iii. 8. pr. and 3:
TertuUianum, iii. 3 : Trebellianum,
ii. 23. 4 and 6.

servitudes, are res incorporales, ii. 2.
3 : rustic, ii. 3. pr. and 2 : urban, id.
I : meaning of * praedial * servitudes,
id. 3 : modes of creating servitudes,
id. 4.

Servius, i. 13. i.

servus, nullum habet caput, i. 16. 4:
as heir or legatee, ii. 9. 3: adultery
of, with free woman, ii. 14. pr. : iii.
1 1 : ordinarius and vicarius, ii. 20.
17 : iv. 7. 4 : stipulations of, Iii. 17.

Severus, i. 25. 18: i. 26. 3. 4 and 9:
ii. 6. 9 and 13: ii. 9. 5 : ii. 10. 7:
ii. 14. pr.: ii. 17. 3 and 8: ii. 20. 5,
12, 15 and 20: ii. 25. i.

slavery, originates in ins gentium, but
contrary to ius naturale, i. 2. 2 : i. 3.
2 : modes in which persons become
slaves, id. 4 : slaves all of one con-
dition, id. 5 : see servus.

sooietas, either totorum bonorum or
unius alicuius negotiationis, iii. 25.
pr. ; shares of profit and loss, how
ascertained, id. 1-3 : modes in which
societas terminates : renunciation, id.
4: death of sodus, id. 5 : completion
of the business for which the partner-
ship was formed, id. 6 : publicatio of
the property of a partner, id. 7, or
his insolvency, id. 8 : obligations of
partners inter se, id. 9: beneficium
competentiae, iv. 6. 38.

solidary obligation, iii. 20. 4.

■olnm Italioam, it 6. pr. : ii. 8. pr.

•olutio, iii. 29. pr. : per errorem, a case

of real, iii. 14. i, or rather quasi-con-
tractual obligation, iii. 27. 6 : solctio
per errorem of legacies, ii. 20. 25.

•peoiflcatio, ii. i. 25.

sportulae, iv. 6. 24.

spurii, i. 10. 2 : have cognates, but not
agnates, iii. 5. 4.

status, see capitis deminutio : status
controversia, i. 25. 12.

stipendiaria praedia,'ii. -i. 40.

stipulatio, defined, iii. 15. pr. : form
of, under the older law, id. i : greater
freedom introduced by Leo, id., cf. iii
19. 5 and 7 i puri, in diem, and sub
condicione, iii. 15. 2 : stipulation for
periodical parent, theoretically pura,
id. 3 : conditional, defined, id. 4 and
6: for factio, as distinguished from
dado, best secured by a penalty, id.
7 : correi stipulandi and promittendi,
iii. 16: stipulation of slave, iii. 17.
pr. : personal to slave, if for a ' fac>
tum,' id. 2 : stipulation of slave jointly
ovmed, id. 3 : iii. 28. 3 : stipulatiooes
iudiciales, iii. 18. i : praetariae and
aediliciae, id. 2 : conventionales, id.
3: communes, id. 4: what may be
stipulated for, iii. 19. pr. : stipula-
tions, why void : on account of non-
existence of their subject, id. i, or
performance being otherwise impos-
sible in nature or law, id. 2 : because
performance is promised from a per-
son not a party to the contract, id. 3,
or to a person not a party to the
contract, nor having promisee in his
potestas» id. 4: on account of want
of c6rrespondence between question
and aftswer, id. 5, cf. 18 : because
made between master and slave, or
pater and filiusfamilias, id. 6 : be^
cause a party is deaf or dumb, f^. 7,
or insane, id. 8, or impubes in potes-
tas, id. 10 : because of impossible
condition, id. 11: because inter ab-
sentes, id. 12: on account of mis-
understanding between the parties, id,
23: because immoral, »^. 24: stipu-
lation for performance to stipulator
or a third person, or to stipulator
ami a third person, id. 4: tor per-
formance after death of promisor
or promisee, made valid by Justinian,
id. 13: for performance after death
of third person, fi^. 16: at death of
promisor or promisee, id. 15: prae-
postera, id. 14: on behalf of third
person, void unless secured by a
penalty, id. 9, or unless promisee has
an interest in performance, id. 20:
promise on behalf of third person.

INDEX TO THE TEXT.

673

not binding unless secured by a
penalty, id. ai : for conveyance of pro-
perty on its becoming promisee's
own, id. 22 : death of promisor before
fulfilment of condition, id. 25 : sti-
pulatio Aqniliana, iii. 29. a.

snbstltutlo pupillariB, ii. 16. pr. : an
institution of customary lawr^ id. :
unifm testamentum duarum heredi-
tatum, id. a : precautions to be taken
in, id. 3 : allowable even when the
child is disinherited, id^ 4: not al-
lowed, unless testator makes a will
for himself, id. 5: flexibility of, id.
6 : form of, id. 7 : avoided by child*8
reaching puberty, id, 8: effects of,
how far producible where an extra-
nens or pubes filius is instituted,
id. 9.

substitntio Quasi-pupillaria, ii. 16. i.

snbstitntio vulgaris, its nature, ii. 15.
pr.: flexibility, id. i. 2 and 3: to
servus alienus believed to be sui iuris,

a. 4.

suspecti crimen, i. 26. pr. : see tutor.

telum, defined, iv. 18. 5.

te^/ritamentifaotio, ii. 10. 6 : ii. 14. 2 :
/ ii. 19. 4: ii. 20. 24.

yestamentum, derived, ii. 10. pr. :
comitiis calatis and in procinctu, id.
I : per aes et libram, id. : praetorian
will, attested by seals of seven wit-
nesses, id. 2 : testamentum triperli-
tum, id. 3 : further requirement of
Justinian, id. 4 : any seal sufficient,
id. 5 : material on which will may be
written, id. 12: duplicate copies, id.
13 : nuncupative will, id. 14 : will of
quasi-castrense peculium, ii. 11. 6:
who cannot make a will : filiifamilias,
except of castrense or quasi-castrense
peculium, ii. 12. pr. : impuberes and
furiosi, id. 1 : prodigi, id. 2 : deaf,
dumb, and blind persons, except
under prescribed special forms, id.
3 and 4 : captivi, while in captivity,
id. 5 : how a testament becomes rup-
tum : by quasi-adgnatio of suus heres,
ii. 17. I : by execution of a later will,
id, 2, even if the heir of the latter be
instituted only ex certis rebus, id. 3 :
will becomes irritum by capitis de-
minutio of testator, id. 4, though in
some cases upheld by the praetor, id.
6 : not avoided by mere intention to
revoke, id. 7 : will of libertus, iii. 7.
I sq. : testamentum iaofficiosum, see

querella: militare, see military
testaUMiLt. -

Tiberius, i. xi. 11 : ii. 15. 4.

tifirnuxn, meaning of, ii. i. 29.

traditio, a natural mode of acquisition,
ii. I. 40 : the universal mode of con-
veying r^s corporales, id. : may be
made by an agent with owner's con-
sent, id. 43 : e. g. by a general ma-
nager, id. 43: wl^ere not necessary
for transfer of ownership, id, 44 and

, 45: to incerta penona, id. 46.

Trajan, ii. 11. 1 : ii. 12. pr. : iii. 7. 4.

translatio of legacies, ii. 21. i. .

Trebatius, ii. 25. yr,

trespMSj-in pnismt of wild animals,
ii. I. 12.

Tribonien, .proem : i. 5. 3 : ii. 8. 2 :
ii. 23. 12.

tributoria praedia, ii. x. 40.

triplicatio, iv. 14. 2.

tutela, i. 13. pr. : defined, id. 1 : ad-
gnatorum, i. 15 : belongs only to the
nearest degree, i. 16. 7 : patronorum,
i. 17 : parentium, i. 18 : fiduciaria, i.
19 : impuberum, based on natural
law, i. 20. 6 : modes in which tutela
terminates,!. 22 : by pupil's attaining
puberty, id. pr. : adrogatio, deporta-
tio, capture in war, etc., id. i : fulfil-
ment of condition, etc., id. 2 and 5 :
death of pupil or tutor, id. 3 : capitis
deminutio, td. 4 : removal on suspi-
cion, grounds of excuse, etc., id. 6 :
tutela a munus publicum, i. 25. pr.

tutor, i. 13. a : may be appointed by
will, id. 3, even to postumi, id. 4 :
to an emancipated child only with
magistrate's approval, id. 5 : who
may be appointed, i. 14 : incertae
personae cannot, ii. ao. 25 and 27 :
appointment ad tempus, ex tempore,
sub condicione, etc, i. 14. 3: ap-
pointment certae rei or causae not
good, id. 4: tutor Atilianus, i. 20.
pr. : ex lege lulia et Titia, id. : tutors
of these latter kinds often appointed
temporarily, id. i and 2 : later mode
of appointment in default of testa-
mentary tutor, >^. 3 : in Justinian's
time, id, 4 : responsibility of tutor at
end of term of office, id. 7 : case of
action between tutor and pupil : lat-
ter must have a curator ad litem, i.
21.3: tutoris actor, i. 23. 6 : tutorum
satisdatio, i. 24: iv. 11. pr. : what
tutors are exempted from giving sa-
tisdatio, i. 24. pr. : offer of satisdatio
to secure sole administration, id. i :
iii. 19. 20 : procedure where none of
several tutors offers, i. 24. i : liability

X X

674

INDEX TO THE TEXT.

of magistrates who appoint, ib, 2-4 :
grounds of excuse from serving the
office, see onrator : tutor cannot be
compelled to become curator to same
ward, i. 35. 18, or man to his own
wife, ib. 19 : removal of tutor on sus-
picion, i. 26 : who can remove, ib. i,
and be removed, ib. 2 : the actio sus*
pecti tutoris quasi-publica, ib. 3, but
cannot be brought by an impubes,
ib. 4 : meaning of suspectus, ib. 5. 9
and 13 : interdiction of administration
during the action, ib. 7 : tutor's obli-
gation to maintain pupil, ib. 9 and
10: punbhment of, by praefectus
urbis, ib. 10 and 11 : offer of security
by tutor, no bar to his removal on
suspicion, ib. 12: tutor and pupil,
relation between is quasi-contractual,
iii. 27. a.
Twelve Tables, the, on tutela, i. 15.
pr. : i. 1 7 : on ouratio adgnatorum, i.
23. 6 : on suspecti crimen, i. 26. pr. :
on the actio de tigno iniuncto, ii. i.
29 : on sale, ii. |. 41 : on usucapio of
res furtivae, ii. 6. 2 : on legacy, ii. 22.
pr. : on intestate succession, ii. 13. 5 :
lii. I. X. 9 and x 5 : iii. 2. pr., 3 and 5 :
iii. 3. pr. and 2 : iii. 5. i and 5 : iii. 7.
pr. : iii. 9. 2 : iii. 10. pr. : on iniuria,
iv. 4. 7 : on pauperies, iv. 9. 4 : Gains'
work on, iv. 18. 5.

U.

usuoapio, a civil mode of acquisition,
ii. 6. pr. : Justinian's changes in the
law of, ib. : what cannot t^ acquired
by, ib, I and 2 : of moveables, rare,
ib. 3 : cases of it, ib. 4, 5 and 6 : of
immoveables, easier : how effected, ib.
7 : of res furtivae or vi possessae, how
possible, ib. 8 : of res fisci, ib. 9 : the
thing to be acquired must have no

vitium, ib. 10 : error falsae causae,
fatal to, ib. 1 1 : continuatio temporis
in, ib. 12 and 13.

uaus, a personal servitude created and
extinguished in same ways as usas-
fructus, ii. 5. pr.: a lest right thin
the latter, ib, 1 : rights of usuaiy of
a house, i&. 2 : nsus intiansferable,
ib. 3 : usus of slave, i^. : of cattle, iS.
4 : not extinguished by capitis deni-
nutio minima, iii. 10. i.

uBUBfiraotua, ii. i. 36 : duty of csd-
fructuary to act as bonus paterfami-
lias, ib. 38 : defined, ii. 4. pr. : modes
of creating, ib. 1 : modes of extinc-
tion, ib. and 3 : of things quae ipso
usu consumuntuf, ib. 2, only a quasi-
usufruct, f^. : effect of determination
of usufruct, ib. 4 : rights of usuftvc-
tuary, ii. 5. 1 : he has not possessioo,
ii. 9. 4 : usufrnct not extinguished by
capitis deminutio minima, iii. 10. 1.

Vespasian, ii. 23. 5.

▼iatores, iv. 6. 24.

▼indioatio, defined, iv. 6. 15: in caso

of theft, iv. I. 19.
▼is maior, iii. 14. 2.

W.

witnesses to a will, must have testa-
menti factio, ii. 10. 6 : who cannot
be, in any case, ib. and 7: others
excluded on grounds of relationship,
ib. 9 and 10.

Xenophon, iv. 18. 5.

GENERAL INDEX.

{The references are to the pages,)

AcoeptilatiOi 464-466.

Aooessio, 202, 203, 208, 209.

temporis or possessionis, 232, 233.

Aoomal between co-legatees, 295 ; be-
tween co-heirs, 308, 368.

Aoqnisition, modes of, 200; civil
modes, 227.

Acta Intervenlentia, 143, 555, 585.

Aotio, meaning of the term, 506, 544 :
Jnstinian^s divisions of actions, 508 sq.

AoUo ad exhibendum, 562.

ad snpplendam legitimam, 28a.

aestimatoria, 437.

bonornm vi raptorum, 526.

calomniae, 616.

confessoria, 545, 645.

de dote, 296.

dc effusis et deiectis, 542.

de eo qnod certo loco, etc., 406.

de in rem verso, 503, 574.

de pauperie, 580, 581.

de peculio, 574.

de pecnnia constitnta, 550.

dc rationibns distrahendis, 166.

de tigno iniuncto, 206.

doli, 566.

ex stipulatn, 646.

exercitoria, 503, 572.

familiae erciscundiae, 458, 620.

fidnciae, 329.

fininm regnndornm, 554.

furti, R2I.

hypothecaria, 549, 610.

in factum civilis, 400, 401, 649.

institoria, 503, 572.

legis Aqniliae, 530, 553, 555.

nc^toria, 546, 645.

Pauliana, 548.

positi aut sizspensi, 542.

praescriptis verbis, 400, 40 J, 649.

Pnbliciana, 200, 220, 325, 341,

546, 547, 598, 647. 652.

quasi-institoria, 503.

quasi -Serviana, 549.

quod iussu, 571.

quod metus causa, 557, 566.

recepticia, 550.

redhibitoria, 437, 553.

rei uxoriae, 559.

X

Actio send corrupt i, 555.

Serviana, 549, 610, 647.

suspecti tutoris, 180.

tributoria, 572.

tutelae, 166, 458.

Actiones adiectitiae qualitatis, 493,

503, 509* 571.
arbitrariae, 561, 562, 646, 650,

651.

bonae fidei, 557, 558, 646, 649.

■ civiles and honorariae, 648.

directae and utiles, 534, 647 sq.

fictitiae, 647.

in bonum et aeqnum conceptae,

559-

in factum, 533, 534.

in ius and in factum conceptae,

646 sq.

in rem and in personam, 545.

legitimae, 647, 648.

noxales, 577 sq.

perpetuae and temporales, 589,

590-

populares, 180, 542, 590, 591.

praeiudiciales, 551, 652 : see prae-

iudicia.

stricti juris, 557, 558.

Actionis editio, 555.

Addictio, 227.

Aditio hereditatia, 167, 247. 26S :

how made, 290, 291 : effects of, 287,

288.
Adindioatio, 227, 621, 649.
Adoptio naturam imitatur, 141.
Adoption, 138 sq.: form of, 140.
Adrogation, 139, 345, 385, 386: of

impuberes, 141.
Adsignatio libertorum, 377, 378.
Adatiptdatio, 532.
Aedile, 22, 107, 411, 436, 581.
Aequitas as a source of Roman law, 29.
Aeatimatam, 401.
Affirmatores, 174.
Agenoy in the acquisition of ownership

and possession, 241 sq. : as a species

of contract, 449 sq. : how far the

agent entitles or binds his principal,

500-503 : agency in the conduct of

actions, 583-585.
Agnates, defined, 155.
Agnitio bonornm possessionis, 381.

X 2

6^b

GENERAL INDEX.

Agri veotigales, 326.

Albi coTTuptio, 551.

Animus domini, 335.

Appellate Jurisdiction under the Re-
public and the Empire, 655, 656.

Apprehensio, 337.

Aquae et igiiis interdiotio, 144.

Aquilian stipulation, the, 465, 466.

Arbitration, its place in the history of
Roman civil procedure, 635.

Arbitria, cf. actiones arbitrariae.

Arra, 431, 432.

Assignment of contractual rights, 481
sq.

Auotoratus, 114.

Austin, Mr., on the law of Persons,
86, and of Things, 188, 192 ; on
Customary law, 109.

Bankruptcy, 388-390, 656 sq.
Beneflciumi abstinendi, 284, 285, 352.

cedendarum actionum, 427, 493.

competentiae, 391, 470, 569.

divisionis, 426, 490, 493.

inventarii, 289.

ordinis sive excussionis, 427, 490,

549.

separationis, 285.

Bona fide possessor, 209.
Bona fides (in usucapion), 328.
Bona vacantia, 232.
Bona vi rapta, 505, 524 sq.
Bonorum addictio libertatis causa,

387.

Bonorum cessio, 391, 057.

Bonorum distractio, 390.

Bonorum possessio, in general, 380
sq. : origin and development of, 471-
475 : ab intestate, 379 sq. : contra
tabulas, 263, 264 : cum and sine
re, 280, 382 : secundum tabulas, 249,
280.

Bonorum venditio, 284, 389, 390,

657-
Breach of promise of marriage, 1 30.

O.

Caduca, 267.

Calumnia, 616.

Capitis deminutio, 157 sq., 183-185,

379. 368, 446, 567.
Capture in war, 113, 202.
Casus, 487.

Causa civilis in contracts, 393.
Causae probatio, 137.
Cautio (bond attesting a contract),

484, 408.
Cautio damni infecti, 410.

Cautio de dolo, 410.

de persequendo servo, etc., 410.

de rato, 411, 586 sq,

legatomm, 411.

Mudana, 271.

rem salvam fore pupilli, 41 1.

Censors and the Census, 21, 117.

Centumviri, 641, 643.

Centuries, 8.

Cessio bonorum, 391, 657.

Cessio nominum or actionum, 482.

Chirographa, 496.

Christianity, influence of, on Roman

law, 62.
Clausula codicillaris, 323.
Clientes, 5.
Code of Justinian, 70, 71, 78. 79 : of

Theodosius II, 68.
Codex Alaricianus, 69.

Gregorianus, 67.

Hermogenianus, 67.

repetitae praelectionis, 78, 79.

Codicilli, 31 1 , 322-324.

Codification, 79.

Coemptio, 124, 150.

Cognatio spiritualis, 134.

Cognitio extraordinaria, 312, 658,

659-
Cognitors, 584.
Coheirs, 288.

CoUatio bonorum, 289, 355.
Colonatus, 114.
Coloniae Latinae, 27.
Colonus, 114, 209.
Comitia calata, 3, 24S.

centuriata, 8, 23-25.

curiata, 3, 25.

tributa, 20, 21, 23, 25.

Conmieroium, 26, 199.
Conmiodatum, 396, 397.
Commodum repraesentationia, 297.
Compensatio, 559-561.
Composition for wrong, idea of, 632,

633-
Compromissum, 470, 635.
Concilia plebis, 10, 20.
Concubinatus, 136.
Concurrence of actions de eadem re,

581-583.
Concurrence of causae lucratiirae,

294.
Condemnatio, 649, 650.
Condicio, 162-164 ; in wills, 270, 271,

299* .^04-306 ; in contracts, 405.

impossibilis, 271, 41 8.

Condictio, 402, 495, 552, 640, 641,

645, 646.

causa data causa non secuta, 400.

furtiva, 524, 591.

indebiti, 395, 396, 460, 480.

Confarreatio, 124, 125.

GENERAL INDEX.

677

ConftiAio, 2a I, 387, 469.

Oonnnbiuixi, 139.

ConBistoriuzn, 107.

OonBolidatio, aai.

Oonstitutions of the Emperors, 104 sq.

Oonstitutuxn, 439, 496, 550.

possessorium, 339.

OonBiils, 8, 9.

Oontraot, development of, 347 sq., 393:
Roman notion of, 39a : place of per-
formance, 406 : time of performance,
433, 433: how far third persons
bound or entitled under contracts,
413 sq. : contract and obligation,
19a.

Oontraotoal deoision of disptites,
' 634, 635.

Oontraria YOlnntaa as a mode of dis-
charging consensual contracts, 468.

Oontributory negligence, 539.

Oontnbemium, 136.

Correal obligation, 407, 408, 491 sq.

Costs, 617.

Cretio continna and ynlgaris, 386,
387.

Culpa, 485 sq., 529.

Cura of minors, 1 69-1 71 : of furiosi
and prodigi, 171.

Curators, 169 sq.

Customary law, 3, 108.

Damage to property^ law of, 537 sq.

Damages, measure of, in actions, 531.

Damnum indireotum, 531.

Damnum iniuria datum, 505, 537 sq.

Dare, faoere, praestare, 477.

Datio in solutum, 464.

Decemviri, 11, 640.

Deoreta, 105 sq.

Decuriones, 137.

Deditioii, 119: succession to, 377.

Deduotio de pecnlio, 481.

Defensio, 481.

Defensor, 588.

Delatio hereditatis, 347.

Delict, nature of, 504, 513.

Demonstratio, 644.

Deportatio in insulam, 144.

Depositum, 397-399»

irregulare, 398.

miserabile, 398,

Dereliction, 314.

Detention, 334, 335.

Dies, 164: in wills, 371 : in contracts,

403-405.
Dies oedit and venit, 399, 300,
Dies interpellat pro homine, 433.
Dies nefasti and fasti, 48.
DifClEtrreatio, 133.
Digest of Justinian, 71-73.

Diligentia, 485 s^.

Distress, law of, in primitive societies,

631-633* 637, 638.
Division of inheritance among coheirs,

369.
Divorce. 131, 133.
Dolus, 485 sq., 539, 566.
Dominium, Roman conception of, 189,

190, 199, 300.
Donatio, 334 sq.

inter vivos, 336 sq.

mortis causa, 334, 335, 307, 310.

propter nuptias, 337, 338.

Dos, 133 sq., 569.
Dotis dictio, 401.
Duplicatio, 603, 603.

B.
Sdict of the Praetor, 30-43.
Sdiots of the Bmperors, 105.
ISdiotum Carbonianum, 381.

provinciale, 33.

Theodorici, 69.

Emancipation, 147.

Emperors, their legislative authority,

45, 104-107.
Emphyteusis, 336, 337, 439.
Empire, establishment of, 42.
Emptio sub corona, 337.
Emptio venditio, 213, 431 sq.: see

Bale.
Epistola Hadriani, 436, 599.
Epistolae, 106.
Ereption, 367.

Exoeptio doli, 497, 566, 595, 599.
— ^ in factum composita, 595, 599.
— iurisiurandi, 596.

legis Cinciae, 336, 599.

legis luliae (de bonorum cesaone),

599-

legis Plaetoriae, 599.

litis dividuae, 568, 601.

litis residuae, 568, 601.

longi temporis, 594.

pacti, 596, 600, 653.

pecuniae non numeratae, 497-499.

praeiudicii, 594.

procuratoria, 594, 601.

quod metus causa, 566, 595, 600.

rei in indicium deductae, 593, 597.

rei iudicatae, 593, 597-598-

SCi. Macedoniani, 576, 599.

SCi. Trebelliani, 599.

SCi. Velleiani, 430, 599, 600.

Exoeptiones, 511, 593 sq., 653, 653;
perpetuae and temporales, 594 : pre-
scription of, 601 : exceptions opposed
to ipsum ius, 463.

Execution for debt and in bankruptcy,
388-391, 656 sq.

Exheredation, 358-364.

XX3

678

GENERAL INDEX.

Bxiatimatio, 159, 617.
IDzpenBllatio, 495 sq.
EzpromiAsio, 481.

Bztension of the Boman fhmohise,
37.

Faloidian fonrthy 308 sq.

Fiotio legiB Comeliae. 358, 279.

IPiotionB, 31, 647.

Fideloomznissa, 311 sq. : differences
between, and legacies, 31a, 319 :
proof of, 319, 330.

FideiooznnuBsaria hereditas, 313 :
tnmsferof, how regulated, 313-316.

Fideiuoaio, 424 sq.

Fidepromiasio, 424, 435.

Fiduoia, 328, 329, 394, 398 : in eman-
cipation, 147, 364.

FiliuafamiliaB, his position in respect
of contract, 128, 416, 460: of pro-
perty, 241-243 : of capacity to sue,
"8, 537.

Forgery, penalties for, 625.

Formula, the, 643 sq. : parts of, 643-

654-

Formulary prooedure, 643 sq. : abo-
lition of, 659.

Freedom, modes of obtaining other
than manumission, 1 1 6.

Fruotus civiles and naturalea, 210.

Fructus lioitatio, 606.

Fructuum peroeptio,-209.

Fruits, title to, 209.

Furiosua, his capacity to bind himself
by contract, 416.

Furtum, 504, 505, 514-524: concep-
tum, 516 : lance et licio conceptum,
517 : manifestum, 516: non exhibi-
tum, 517 : oblatum, 516 : prohibi-
a,5i6.

tum.

G.

Oaius, 54, 55, 67.

Gentiles, 369.

Gifts between husband and wife, 236.

Glossators, 8a

Guardianship, 149 sq. : by women,
149: over women, 149-151: over
impuberes, 151 sq. : duties of guar-
dian, 152, 460.

H.

Habitatio, 226.

Heredes neoessarii« 284, 285.

sui et necessarii, 285.

Heredltas, 246, 247.
jacens, 246.

Hunter, Dr., on the Gaian classiBca-
tion of law, 192, 193 : on Posaessioo,

341, 342-
Husband and wife, their proprietary

selations, 132 sq.
Hypotheoa, 331, 332, 610.

Ignominia, 159.

Imperium, 30.

Impossibility of performanoe, effect
of, on validity of contract, 411,412.

In bonis habere, 199, 200.

In integrum restitutio, 386, 548,
565-568, 604.

In iure oessio, 227 : of hereditas,
268, 391.

In ius Yooatio, 555, 639.

In libertate esse, 114.

Inaediiloatio, 206.

Inoertae personae, 260, 266, $01.

Tnfamia, 159, 617.

Infantia, 417.

Ingenuitas, modes of acquiring, lao.

Iniuria, 506, 535-540-

Innominate contract, 400, 401.

Institutes, the, composition of, 73.

Institution of heres, 264 : of servus
alienus, 268, 269 : of postumus alien-
us, 302 : who could not be instituted,
266 : institution ex re certa, 318.

Intentio, 645, 650.

Interdiots, 32, 340. 511, 604 sq. :
Interdict procedure under the Formu-
lary system, 604-607 : under Jus-
tinian, 607.

Interdiotum de arboribus caedendis,
607.

de homine libero, eta, 607.

de liberis exhibendis, 607.

de mortuo inferendo, 608.

de superficie, 325.

de vi armata, 614.

fraudatorinm, 548, 607.

ne vis fiat, etc., 607.

possessorium, 607, 6ii.

quorum bonorum, 380, 472, 609,

610.

Salvianum, 550, 610.

sectorium, 607, 6ii.

unde vi, 607, 614.

uti possidetis, 605, 608, 611, 61 a,

614.

utrubi, 605, 611, 612, 614.

Interpellatio, 423.

Interpretatio, 49.

Interusurium, 297.

Intestate suocession, law relating to,
343-345 • to freedmen, 344, 374 so. :
the law as regulated by the XII

GENERAL INDEX.

679

Tables; of sni, 351 : agnates, 360 :
gentiles, 369 : as regulated by the
Edict: of liberi, 354: legitimi, 362,
363 : cognati, 369 sq. : under novel
cxviii, 384, 385.

Intestate •ueoession, to emancipatns,
358, 359.

to filiusfamilias with pecnlium, 358.

Intimidation, effect of, on validity of
dispositions, 557, 566.

Invects at illata, 333, 441.

Inventory, Justinian's introduction of,
289, 311.

Index, original conception of, 635 ;
pedanens, 659.

Indicia divisoiia, 554, 649.

legitima, 593.

pnblica, 621 sq.

qnae imperio continentnr, 593.

Indicis arbitrive postulatio, 640.

Indicium Cascelliannm, 606.

contrarinm, 6i6.

Inra in re aliena, 216.

lurats i>romi88io liberti, 404, 609.

luridici, 46, 165.

luriB Quaai posseaflio, 221, 335.

Ins, signification of, 100 ; ins and indi-
oinm, 642, 654.

luB adcrescendi, 238.

annlonim, 1 20.

civile, 28.

edicendi, 30.

gentinm or naturale, 28, 37-42,

102, III.

• Papiriannm, 3.

praetorinm, 30 sq.

quod ad actiones pertinet, 506 sq.

quod ad personas pertinet, 86 sq. :

changes in, between Gains and Jus-
tinian, 94.

quod ad res pertinet, 187 sq. :

changes in, between Gains and Jus-
tinian, 193. 194.

respondendi, 56.

scriptum and non scriptum, 103.

luBinrandum, 550, 551 : see Oath.

in litem, 562, 651.

Insta oansa traditionis, 212.

or iustus titulus in usucapio, 228.

in in integrum restitutio, 5^.

lustae nnptiae, 129.

J.

Joint and several liability, 488 sq.
Joint gnarantOTs of right, 634.
Joint tntors and onrators, 173.
Judgment, effect of, on rights of

action, 597-599-
Judicial fimotions, how acquired by

the state, 636.

JuriBta, their influence on Roman law,
47 sq. : schools of, 51 : defect in their
method, 58.

Kings of Borne, 4 : expelled, 8.

L.

Laesio enormia, 433.

Iiatinitas, 27, 28.

Iiatini luniani, 118, 119: saccesdon

to, 376, 377-

Iiaw of Citations, 04, 65.

Iiegaoy, nature of, 291 : form of, 291,
292 : conjunctive and disjunctive, 294,
295 : remedies for recovery of, 293 :
ademption and transference of, 306 :
to be paid after death of heir, etc.,
305 : given poenae nomine, 306 : le-
gatum partitionis, 315, 316.

Legal education at Borne, 49, 59, 60,
78.

Legal terminology of the Bomans,
its evidence as to their original con-
dition, 629-631.

Leges curiatae, 3.

luliae iudidariae, 642.

Liciniae, 22.

Publiliae, 23, 24.

r^ae, 2.

Valeriae, 20, 2i.

Legis actiones, 30, 636-^41 : defects
of, 641, 642 : limited survival of,
642.

Legitimation of children, 137, 138.

Letting and hiring, contract of, 438
sq. : rights and duties of the parties,
440-442.

Lex as a mode of acquisition, 227.

Lex Aebutia, 30, 35, 642 sq., 656.

Aelia Sentia, 119-121, 136, 284.

Anastasiana, 484.

Apuleia, 425, 426.

Aquilia, 505, 520, 527 sq., 541,

582.

Atilia, 162.

Atinia, 230.

Calpumia, 584, 641, 646.

Canuleia, 21.

Cassia, 11.

Cicereia, 425, 551.

Cincia, 234 sq., 599.

commissoria, 329.

Cornelia, 33.

de falsis, 250, 258, 279, 625.

de iniuriis, 539.

de sicariis, 112, 532, 539,

540> 623.

maiestatis, 62 a.

68o

GENERAL INDEX.

Iiex de imperio, 45.

decimaria, 267.

Fabia de plagiariis, 519, 540, 6a6.

Falcidia, 253, 378, 3o»-3", 3i3>

318.

Fufia Caninia, 123.

Furia de sponsu, 425, 426, 589.

Furia testamentaria, 235, 236,

307-

Horatia Valeria, 20. ai.

Hortensia, 23, 104.

Hostilia, 583.

lulia cadncaria, 380.

de adnlteriis, X18, 13^1 136,

339> 265, 540, 622.

de ambitn, 020.

de annona, 627.

de bonorum cessione, 391,

599- , . .

de civitate, 26.

de fundo dotali, 134.

de maritandis, 235, 618.

de residuis, 627.

de vi, 230, 527, 540, 614,

maiestatis, 022.

: peculatus, 626.

repetundarum, 627.

Mia et Titia, 162.

lunia Norbana, 28, 118, 119, 256,

267, 376.

lunia Velleia, 261.

Maenia, 26.

Mamilia, 554.

Menenia, 11.

Ovinia, 23.

Papia Poppaea, 46, I30> I33» I5i»

334* 335, 3^7> 395» 299, 313, 344.

365, 374, 380.

Papiria, 11.

Petronia, 112.

Pinaria, ii, 640, 64 1, 643.

Plaetoria, 170, 599.

Poetelia, 389, 657.

Pompeia de parricidiis, 127, 624.

Publilia, 23, 425.

Rbodia de iactu, 214.

Rubria, 389.

Scribonia, 2 21.

Servilia, 584,

Silia, 641, 646.

Tarpeia, 11.

Voconia, 235, 267, 307, 313, 362.

Libel and Slander, 536, 539.
Iiibellary procedure, 555, 556, 659.
Ijibellus oonventionia, 545, 555, 556.
Libertini, 23, 115 sq., 344, 374 sq.,

402, 609.
Iiimitation of actions, 589, 590 : of

exceptions, 601.
Ztia oresoens, 459.

Ztiteral Contract, 495 aq.

IiitiB conteatatio, 634, 655 : as a mode

in which obligations are dischaxged,

469.
Iiocatio oondnotio, 438 sq.
Iiongi temporia possessio or pne-

soriptio, 229.
Laoruin oeMans, 531.

Magiatratus maiorea and minores,

Mala flde posseaaor, 206, 210.
Manolpatio, 227, 580.
Manoiplum, 125.
Mandata, 105.
Mandatum, 449 aq.

qualificatum, 429, 451, 452.

Iffanua, 124.

Manus iniectio, 389, 390, 637, 638,

656.
Marriage, 129 sq.
Iffeasure of damages in an action,

531.

MetuB, 557, 566.

Minus petitio, 568.

Missio in possessionem, 390.

Mistake, efTect of, on validity of testa-
mentary dispositions, 302, 303: of
contracts, 421, 422 : as a ground for
in integrum restitutio, 567.

Mora, 423, 424.

Mutuum, 395.

K".

Natural and Civil, opposition be-
tween, 40, 102, 103.

Naturalis obligatio, 478 sq.

Negotiorum gestio, 456, 457.

Nexi liberatio, 462.

Nexum, 347, 380.

Nomina aroaria, 496.

Nominatores, 174.

Novatio, 466-468, 491: necessan*,
469.

Nov-ellae oonstitutiones, 69, 79*

Nozal surrender of slaves, etc., 577
sq.

O.

Oath, the, as a mode of deciding dis-
puted questions, 550, 551, 59^»/34-

ObUgatio, meaning of, 345, 2A\A1^
sq. : relation to actio, 346 : obliga-
tions civil and praetorian, 391 : c^^'^j.
and natural, 478 sq. : the sources of
obligations, 346, 347, 392, 393» 5?4-
modes of discharge, 461 sq. : obliga-
tio a persona heredis incipere non
potest, 419.

GENERAL INDEX.

68l

Occupatio, 20 1, 211.
Omnia iudicia absolutoria, 592.
Operae locari non solitae, 442.
Operae serForuxn and aniinaHiiin,

226.
Orationes, 105.
Ordinarii and vioarii send, 298, 574.

P.

Pacta nuda and vestita, 392.
Pactum de non petendo, 470, 492.
Fapian, 69.

Partition of the Empire, 61.
, Fartnership, contract of, 443 sq. :

rights and duties of partners inter se,

447 : in relation to third person, 44S.
Patria potestas, 126 sq. : modes of

origination, 129 : of termination, 144

sq.
Patriciate, the, 145.
Pauperiea, 580, 581.
Fecnlium, 242, 460 : will of, 256 :

succession to, on intestacy, 358.
Penalties, use of, in stipulation, 407.
Pendency of actions, 592, 593.
Peroeptio, 210.
Perduellio, 352.
Pericnlam rei in contracts of sale,

435-

Permutatio, 401.

Perpetua mulierom tutela, 149-15 1.

Persona, meaning of, 86 sq.

Pignoris capio, 636, 642, 658.

Pignus, 240, 339-331, 399-

Flebiscita, 21, 23.

Flebs, 5 : its influence on Roman law,
ib. : secessions of, 9, 20 : disabilities
of, 10.

Pledge, 329-332 : right of, how ex-
tinguished, 332.

Plus petitio, 564-566.

Poena, original meaning of, 632, 633.

Poenae temere litin^tium, 511,
615-618.

Pontifioes, 2.

Possessio pro herede and possessore,
333, 610.

Possession, 334-342, 612-613: deri-
vative or representative, 337 : how
acquired, 337-339* 5^3 : through
agents, 241 sq., 338 : how retained
and lost, 339, 340, 513: why pro
tected by law, 340, 341.

Postliminium, 146.

Postumi, 153, 260: insUtution of pos-
tumus alienns, 302.

Fraedia stipendiaria and tributaria,
212.

Fraeiudioia» 177, 551, 552, 652.

Fraescriptio longi temporls, 229.

Praescriptio pro actore, 644.

pro reo, 654.

Praetor, 22, 30 sq. : his influence on

law through control of procedure,

648.

peregrinus, 33, 35, 36.

Pragmatic sanctions, 107.

Preoarium, 329, 401.

Prescription : see Limitation of

actions.
Private law, its original relation to

Public law, 15 sq.
Procurators, 584-588.
Prodigi, interdiction of, 171.
Prudentes, 47 sq.
Pubertas, 168, 417.
Public law, 1 01.
Publica indicia, 621 sq.
Publioatio, 446.

Q,uanti ea res est, 531.
Q,uarta Antonina, 141, 282.
Quasi-contractual obligation, 392,

456 sq.
Quasi-delictual obligation, 393, 541-

543.
Quasi-usufruct, 224.
Querella inof^ciosi testament!, 281

sq., 590, 591-

Quinquaginta decisiones, 71.

Beal actions, forms of, under the

formulary system, 651, 652.
Beal and Personal security, 328.
Beal contracts, 394 sq.
Beoeptum nautarum, etc., 543.
Becuperatores, 35, 643.
Begressus, 491, 493.
Begula Catoniana, 296, 304.
Belegatio in insulam, 145.
Beplicatio, 602, 603, 653.
Bepraesentatio, 297, 404.
Bes, classiBcarions of, 187.
Bes communes, 195.

corporales and incorporales, 215.

fungibiles, 395, 398.

in and extra commercium or patri-

monium, 195, 411.
mancipi and nee mancipi, 17,

199.

publicae, 196.

religiosae, 197.

sanctae, T98.

sacrae, 197.

Bes iudicata, 597-599.

Bes iudicatae as a source of Roman

law, 29.
Bes perit domino, 435.

68z

GENERAL INDEX.

Besoxipta, io6.

Besponsa pradentiam, 47, 108 : en-
actment of Hadrian relating to, 57,
64 : Law of Citations respecting,
64-66.

Bobbery, 505, 5^4-527-

Boman franchise, extension of, 26.

Boman Law before the Twelve Tables,
2 : history of, after Justinian, 80.

Boman populus, original constitution
of, 3, 4.

Sabiniana and Frooulians, 51, 5a.

Saoramentum, 639, 640.

Sacrilege, penalties for, 626.

Bale, contract of, 213, 431 sq. : ven-
dor's obligation to compensate on
eviction, 435, 436 : sales on approval,

437.
Balvius lulianuB, his edictnm per-

petuum, 46.
Batlo, 207.
Satisdatio, 585 sq.
Savigny, his arrangement of Private

Law, 74-77.
Seotio bDnomm, 227.
Security real and personal, 328.
Security required from parties to an

action, 585 sq.
Self-redress, 630-632.
Semel heres semper bores, 247, 269,

271, 288, 314.
Senate, 4, 9, 22, 24, 26, 43, 44.
Senatosconsulta, question as to their

original force, 44.
Senatnsoonsultum Afinianum, 356.

Claudianum, 112, T13, 345, 391.

luventianum, 233, 456, 559, 610.

Largianum, 377.

• Libonianum, 153, 250.

• — Macedonianum, 44, 395, 428, 480,

510, 575-577* 599.

Neronianum, 292, 295.

Orfitianum, 343, 359, 365, 368,

37o» 379-

Pegasianum, 278, 3 15-31 7*

Silanianum, Ii6.

TertuUianum, 343, 363, 365, 370,

379-

Trebellianum, 314-317, 599, 647.

Velleianum, 149, 430, 576, 599,

601.
Separatio bonorom, 288.
Sequestration, 398.
Servi poenae, 113.
Servi vioarii and ordinarii, 298, 574.
Servitndos, 216: praedial, 217 sq. :

modes of origination, 219 sq. : modes

of extinction, 221, 222 : inalienability

of, 222.

Senrios Tnllius, 6, 7.
Set-off, 559-561.
Slavery, 103, 111-114.
Social Oompaot Theory, 628.
Societas, 443 sq. : omnium bonoium,

212, 5^: leonina, 445.
Solidary Obligation, 407, 408, 589-

591-
Solutio, 464.
Specifloatio, 204, 205.
Sponsalia, 130.
Sponsio as a form of suretyship, 424.

poenalis, 641, 646.

praeiudicialis, 652.

Sportulae, 556.

Statnliberi, 114.

Status, 87 sq., 157: of civitas, 89:

of children, 112,115, H^ : of familia,

90: oflibertas, 88.
Status oontrorersia, 177.
Stipulation, derivation, 402 : nature

of, 402 : form of, 357, 348, 402, 403.
Stipulations judicial and praeto-
rian, 409.
Stoicism, influence of, upon Roman

law, 37-39.
Subsoriptiones, 106.
Substitutio exemplaris or quasi-pupil-

laris, 27.1;.

pupillaris, 274-277.

vulgaris, 272, 273.

Superficies, 325.

Suretyship, law of, 424 sq., 451, 452,

603, 604 : by women, 429.
Ssmgraphae, 496.

TaUo, 538, 631.

Tazatio, 650.

Tempus utile and continuum, 383,

548.
Testamentifkctio, 250, 255, 313.
Testamentum in comitiis calatis, 248,

634.

in procmctu, 248.

inofRciosum, 281 sq.

militare, 253 sq.

per aes ct libram, 248, 251, 634,

praetorium, 248.

tripertitum, 249.

Testis, original meaning of, 633, 634.

Theft, 504, 514-534-

Thesaurus, 211.

Titulus putativus, 232.

Traditio, 21 1-2 14 : brevi mann, 337.

Transactio, 401, 470.

Transoriptio, 495.

Transfer of inheritance, 268, 269.

of rights of action, 482 sq.

Transmission of rights of action, 590-

59»-

GENERAL INDEX.

683

Tribal Constitution of the Romans,

3, 6, 7, 10-

Triboni militam, 22.

Tribiinl plebis, 10.

Triplioatio, 602, 653.

Tutor, Atilianus, 150, 162 : cessiclus,
150 : dativus, i6a : ex lege lulia et
Titia, 16 a : fidaciarius, 150, 161 :
honorarins, 173 : legitimus, 150, 155,
160, 161, 169: optivus, 150: testa-
xnento datus, 150, 15 a : duties of
tutor, 458 : see Quardian.

Tutor personae non rei datur, 154.

Tutoris auctoritaa, when required,
153. 166, 417.

Twelve Tables, 11 sq.

Universal suooession, 245 sq.
Universitates, 196, 197.

Usucapio, aar, 237 sq., 630.

lucrativa, 333.

pro heiede, 333, 471.

Usufruot, 333-235.
Usureceptio, 333.
IJsuB, 134, 335, 226.

Vatican fragments, 67.
Vindicatio, 645.
Vis ex conventu, 605.
Votnm, 403.

W.

Wills, forms of, 348 sq. : oral, 353 :
public, 353 : soldiers*, 353 sq. : how
privileged, 353 : of dea^ dumb and
blind persons, 354, 357 : how wills
are or become void, 377 sq.

c/

THE END.

\