The Institutes of Justinian
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Title: The Institutes of Justinian
Translator: John Baron Moyle
Release date: June 1, 2004 [eBook #5983]
Most recently updated: April 11, 2009
Language: English
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*** START OF THE PROJECT GUTENBERG EBOOK THE INSTITUTES OF JUSTINIAN ***
Produced by Howard Sauertieg
THE INSTITUTES OF JUSTINIAN
Translated into English by J. B. Moyle, D.C.L. of Lincoln's Inn,
Barrister-at-Law, Fellow and Late Tutor of New College, Oxford
Fifth Edition (1913)
PROOEMIVM
In the name of Our Lord, Jesus Christ.
The Emperor Caesar Flavius Justinian, conqueror of the Alamanni, the
Goths, the Franks, the Germans, the Antes, the Alani, the Vandals, the
Africans, pious, prosperous, renowned, victorious, and triumphant, ever
august,
To the youth desirous of studying the law:
The imperial majesty should be armed with laws as well as glorified
with arms, that there may be good government in times both of war and
of peace, and the ruler of Rome may not only be victorious over his
enemies, but may show himself as scrupulously regardful of justice as
triumphant over his conquered foes.
With deepest application and forethought, and by the blessing of God, we
have attained both of these objects. The barbarian nations which we have
subjugated know our valour, Africa and other provinces without number
being once more, after so long an interval, reduced beneath the sway of
Rome by victories granted by Heaven, and themselves bearing witness to
our dominion. All peoples too are ruled by laws which we have either
enacted or arranged. Having removed every inconsistency from the sacred
constitutions, hitherto inharmonious and confused, we extended our care
to the immense volumes of the older jurisprudence; and, like sailors
crossing the mid-ocean, by the favour of Heaven have now completed a
work of which we once despaired. When this, with God's blessing, had
been done, we called together that distinguished man Tribonian, master
and exquaestor of our sacred palace, and the illustrious Theophilus and
Dorotheus, professors of law, of whose ability, legal knowledge, and
trusty observance of our orders we have received many and genuine
proofs, and especially commissioned them to compose by our authority and
advice a book of Institutes, whereby you may be enabled to learn your
first lessons in law no longer from ancient fables, but to grasp them by
the brilliant light of imperial learning, and that your ears and minds
may receive nothing useless or incorrect, but only what holds good in
actual fact. And thus whereas in past time even the foremost of you were
unable to read the imperial constitutions until after four years, you,
who have been so honoured and fortunate as to receive both the beginning
and the end of your legal teaching from the mouth of the Emperor, can
now enter on the study of them without delay. After the completion
therefore of the fifty books of the Digest or Pandects, in which all
the earlier law has been collected by the aid of the said distinguished
Tribonian and other illustrious and most able men, we directed the
division of these same Institutes into four books, comprising the
first elements of the whole science of law. In these the law previously
obtaining has been briefly stated, as well as that which after becoming
disused has been again brought to light by our imperial aid. Compiled
from all the Institutes of our ancient jurists, and in particular from
the commentaries of our Gaius on both the Institutes and the common
cases, and from many other legal works, these Institutes were submitted
to us by the three learned men aforesaid, and after reading
and examining them we have given them the fullest force of our
constitutions.
Receive then these laws with your best powers and with the eagerness of
study, and show yourselves so learned as to be encouraged to hope that
when you have compassed the whole field of law you may have ability to
govern such portion of the state as may be entrusted to you.
Given at Constantinople the 21st day of November, in the third consulate
of the Emperor Justinian, Father of his Country, ever august.
BOOK I.
TITLES
I. Of Justice and Law
II. Of the law of nature, the law of nations,
and the civil law
III. Of the law of persons
IV. Of men free born
V. Of freedmen
VI. Of persons unable to manumit, and the
causes of their incapacity
VII. Of the repeal of the lex Fufia Caninia
VIII. Of persons independent or dependent
IX. Of paternal power
X. Of marriage
XI. Of adoptions
XII. Of the modes in which paternal power
is extinguished
XIII. Of guardianships
XIV. Who can be appointed guardians by will
XV. Of the statutory guardianship of agnates
XVI. Of loss of status
XVII. Of the statutory guardianship of patrons
XVIII. Of the statutory guardianship of parents
XIX. Of fiduciary guardianship
XX. Of Atilian guardians, and those appointed
under the lex Iulia et Titia
XXI. Of the authority of guardians
XXII. Of the modes in which guardianship
is terminated
XXIII. Of curators
XXIV. Of the security to be given by guardians
and curators
XXV. Of guardians' and curators' grounds
of exemption
XXVI. Of guardians or curators who are
suspected
TITLE I. OF JUSTICE AND LAW
Justice is the set and constant purpose which gives to every man his
due.
1 Jurisprudence is the knowledge of things divine and human, the science
of the just and the unjust.
2 Having laid down these general definitions, and our object being
the exposition of the law of the Roman people, we think that the most
advantageous plan will be to commence with an easy and simple path, and
then to proceed to details with a most careful and scrupulous exactness
of interpretation. Otherwise, if we begin by burdening the student's
memory, as yet weak and untrained, with a multitude and variety of
matters, one of two things will happen: either we shall cause him wholly
to desert the study of law, or else we shall bring him at last, after
great labour, and often, too, distrustful of his own powers (the
commonest cause, among the young, of ill-success), to a point which
he might have reached earlier, without such labour and confident in
himself, had he been led along a smoother path.
3 The precepts of the law are these: to live honestly, to injure no one,
and to give every man his due.
4 The study of law consists of two branches, law public, and law
private. The former relates to the welfare of the Roman State; the
latter to the advantage of the individual citizen. Of private law then
we may say that it is of threefold origin, being collected from the
precepts of nature, from those of the law of nations, or from those of
the civil law of Rome.
TITLE II. OF THE LAW OF NATURE, THE LAW OF NATIONS, AND THE CIVIL LAW
1 The law of nature is that which she has taught all animals; a law not
peculiar to the human race, but shared by all living creatures, whether
denizens of the air, the dry land, or the sea. Hence comes the union
of male and female, which we call marriage; hence the procreation and
rearing of children, for this is a law by the knowledge of which we see
even the lower animals are distinguished. The civil law of Rome, and
the law of all nations, differ from each other thus. The laws of every
people governed by statutes and customs are partly peculiar to itself,
partly common to all mankind. Those rules which a state enacts for its
own members are peculiar to itself, and are called civil law: those
rules prescribed by natural reason for all men are observed by all
peoples alike, and are called the law of nations. Thus the laws of
the Roman people are partly peculiar to itself, partly common to all
nations; a distinction of which we shall take notice as occasion offers.
2 Civil law takes its name from the state wherein it binds; for
instance, the civil law of Athens, it being quite correct to speak thus
of the enactments of Solon or Draco. So too we call the law of the Roman
people the civil law of the Romans, or the law of the Quirites; the law,
that is to say, which they observe, the Romans being called Quirites
after Quirinus. Whenever we speak, however, of civil law, without any
qualification, we mean our own; exactly as, when 'the poet' is spoken
of, without addition or qualification, the Greeks understand the great
Homer, and we understand Vergil. But the law of nations is common to the
whole human race; for nations have settled certain things for themselves
as occasion and the necessities of human life required. For instance,
wars arose, and then followed captivity and slavery, which are contrary
to the law of nature; for by the law of nature all men from the
beginning were born free. The law of nations again is the source of
almost all contracts; for instance, sale, hire, partnership, deposit,
loan for consumption, and very many others.
3 Our law is partly written, partly unwritten, as among the Greeks.
The written law consists of statutes, plebiscites, senatusconsults,
enactments of the Emperors, edicts of the magistrates, and answers of
those learned in the law.
4 A statute is an enactment of the Roman people, which it used to make
on the motion of a senatorial magistrate, as for instance a consul. A
plebiscite is an enactment of the commonalty, such as was made on the
motion of one of their own magistrates, as a tribune. The commonalty
differs from the people as a species from its genus; for 'the people'
includes the whole aggregate of citizens, among them patricians and
senators, while the term 'commonalty' embraces only such citizens as are
not patricians or senators. After the passing, however, of the statute
called the lex Hortensia, plebiscites acquired for the first time the
force of statutes.
5 A senatusconsult is a command and ordinance of the senate, for when
the Roman people had been so increased that it was difficult to assemble
it together for the purpose of enacting statutes, it seemed right that
the senate should be consulted instead of the people.
6 Again, what the Emperor determines has the force of a statute, the
people having conferred on him all their authority and power by the
'lex regia,' which was passed concerning his office and authority.
Consequently, whatever the Emperor settles by rescript, or decides in
his judicial capacity, or ordains by edicts, is clearly a statute: and
these are what are called constitutions. Some of these of course are
personal, and not to be followed as precedents, since this is not the
Emperor's will; for a favour bestowed on individual merit, or a
penalty inflicted for individual wrongdoing, or relief given without
a precedent, do not go beyond the particular person: though others are
general, and bind all beyond a doubt.
7 The edicts of the praetors too have no small legal authority, and
these we are used to call the 'ius honorarium,' because those who occupy
posts of honour in the state, in other words the magistrates, have given
authority to this branch of law. The curule aediles also used to issue
an edict relating to certain matters, which forms part of the ius
honorarium.
8 The answers of those learned in the law are the opinions and views of
persons authorized to determine and expound the law; for it was of old
provided that certain persons should publicly interpret the laws, who
were called jurisconsults, and whom the Emperor privileged to give
formal answers. If they were unanimous the judge was forbidden by
imperial constitution to depart from their opinion, so great was its
authority.
9 The unwritten law is that which usage has approved: for ancient
customs, when approved by consent of those who follow them, are like
statute.
10 And this division of the civil law into two kinds seems not
inappropriate, for it appears to have originated in the institutions of
two states, namely Athens and Lacedaemon; it having been usual in the
latter to commit to memory what was observed as law, while the Athenians
observed only what they had made permanent in written statutes.
11 But the laws of nature, which are observed by all nations alike, are
established, as it were, by divine providence, and remain ever fixed and
immutable: but the municipal laws of each individual state are subject
to frequent change, either by the tacit consent of the people, or by the
subsequent enactment of another statute.
12 The whole of the law which we observe relates either to persons, or
to things, or to actions. And first let us speak of persons: for it is
useless to know the law without knowing the persons for whose sake it
was established.
TITLE III. OF THE LAW OF PERSONS
In the law of persons, then, the first division is into free men and
slaves.
1 Freedom, from which men are called free, is a man's natural power of
doing what he pleases, so far as he is not prevented by force or law:
2 slavery is an institution of the law of nations, against nature
subjecting one man to the dominion of another.
3 The name 'slave' is derived from the practice of generals to order the
preservation and sale of captives, instead of killing them; hence they
are also called mancipia, because they are taken from the enemy by the
strong hand.
4 Slaves are either born so, their mothers being slaves themselves; or
they become so, and this either by the law of nations, that is to say
by capture in war, or by the civil law, as when a free man, over twenty
years of age, collusively allows himself to be sold in order that he may
share the purchase money.
5 The condition of all slaves is one and the same: in the conditions
of free men there are many distinctions; to begin with, they are either
free born, or made free.
TITLE IV. OF MEN FREE BORN
A freeborn man is one free from his birth, being the offspring of
parents united in wedlock, whether both be free born or both made free,
or one made free and the other free born. He is also free born if his
mother be free even though his father be a slave, and so also is
he whose paternity is uncertain, being the offspring of promiscuous
intercourse, but whose mother is free. It is enough if the mother be
free at the moment of birth, though a slave at that of conception: and
conversely if she be free at the time of conception, and then becomes a
slave before the birth of the child, the latter is held to be free born,
on the ground that an unborn child ought not to be prejudiced by the
mother's misfortune. Hence arose the question of whether the child of a
woman is born free, or a slave, who, while pregnant, is manumitted, and
then becomes a slave again before delivery. Marcellus thinks he is born
free, for it is enough if the mother of an unborn infant is free at any
moment between conception and delivery: and this view is right.
1 The status of a man born free is not prejudiced by his being placed
in the position of a slave and then being manumitted: for it has been
decided that manumission cannot stand in the way of rights acquired by
birth.
TITLE V. OF FREEDMEN
Those are freedmen, or made free, who have been manumitted from legal
slavery. Manumission is the giving of freedom; for while a man is in
slavery he is subject to the power once known as 'manus'; and from that
power he is set free by manumission. All this originated in the law
of nations; for by natural law all men were born free--slavery, and by
consequence manumission, being unknown. But afterwards slavery came in
by the law of nations; and was followed by the boon of manumission; so
that though we are all known by the common name of 'man,' three classes
of men came into existence with the law of nations, namely men free
born, slaves, and thirdly freedmen who had ceased to be slaves.
1 Manumission may take place in various ways; either in the holy church,
according to the sacred constitutions, or by default in a fictitious
vindication, or before friends, or by letter, or by testament or any
other expression of a man's last will: and indeed there are many other
modes in which freedom may be acquired, introduced by the constitutions
of earlier emperors as well as by our own.
2 It is usual for slaves to be manumitted by their masters at any time,
even when the magistrate is merely passing by, as for instance while the
praetor or proconsul or governor of a province is going to the baths or
the theatre.
3 Of freedmen there were formerly three grades; for those who were
manumitted sometimes obtained a higher freedom fully recognised by the
laws, and became Roman citizens; sometimes a lower form, becoming by
the lex Iunia Norbana Latins; and sometimes finally a liberty still more
circumscribed, being placed by the lex Aelia Sentia on the footing of
enemies surrendered at discretion. This last and lowest class, however,
has long ceased to exist, and the title of Latin also had become rare:
and so in our goodness, which desires to raise and improve in every
matter, we have amended this in two constitutions, and reintroduced the
earlier usage; for in the earliest infancy of Rome there was but one
simple type of liberty, namely that possessed by the manumitter, the
only distinction possible being that the latter was free born, while
the manumitted slave became a freedman. We have abolished the class of
'dediticii,' or enemies surrendered at discretion, by our constitution,
published among those our decisions, by which, at the suggestion of the
eminent Tribonian, our quaestor, we have set at rest the disputes of
the older law. By another constitution, which shines brightly among the
imperial enactments, and suggested by the same quaestor, we have altered
the position of the 'Latini Iuniani,' and dispensed with all the rules
relating to their condition; and have endowed with the citizenship
of Rome all freedmen alike, without regard to the age of the person
manuumitted, and nature of the master's ownership, or the mode of
manumission, in accordance with the earlier usage; with the addition of
many new modes in which freedom coupled with the Roman citizenship, the
only kind of freedom now known may be bestowed on slaves.
TITLE VI. OF PERSONS UNABLE TO MANUMIT, AND THE CAUSES OF THEIR
INCAPACITY
In some cases, however, manumission is not permitted; for an owner who
would defraud his creditors by an intended manumission attempts in vain
to manumit, the act being made of no effect by the lex Aelia Sentia.
1 A master, however, who is insolvent may institute one of his slaves
heir in his will, conferring freedom on him at the same time, so that
he may become free and his sole and necessary heir, provided no one else
takes as heir under the will, either because no one else was instituted
at all, or because the person instituted for some reason or other does
not take the inheritance. And this was a judicious provision of the
lex Aelia Sentia, for it was most desirable that persons in embarrassed
circumstances, who could get no other heir, should have a slave as
necessary heir to satisfy their creditors' claims, or that at least (if
he did not do this) the creditors might sell the estate in the slave's
name, so as to save the memory of the deceased from disrepute.
2 The law is the same if a slave be instituted heir without liberty
being expressly given him, this being enacted by our constitution in
all cases, and not merely where the master is insolvent; so that in
accordance with the modern spirit of humanity, institution will be
equivalent to a gift of liberty; for it is unlikely, in spite of the
omission of the grant of freedom, that one should have wished the person
whom one has chosen as one's heir to remain a slave, so that one should
have no heir at all.
3 If a person is insolvent at the time of a manumission, or becomes so
by the manumission itself, this is manumission in fraud of creditors.
It is, however, now settled law, that the gift of liberty is not avoided
unless the intention of the manumitter was fraudulent, even though his
property is in fact insufficient to meet his creditors' claims; for men
often hope and believe that they are better off than they really are.
Consequently, we understand a gift of liberty to be avoided only when
the creditors are defrauded both by the intention of the manumitter,
and in fact: that is to say, by his property being insufficient to meet
their claims.
4 The same lex Aelia Sentia makes it unlawful for a master under twenty
years of age to manumit, except in the mode of fictitious vindication,
preceded by proof of some legitimate motive before the council.
5 It is a legitimate motive of manumission if the slave to be manumitted
be, for instance, the father or mother of the manumitter, or his son
or daughter, or his natural brother or sister, or governor or nurse or
teacher, or fosterson or fosterdaughter or fosterbrother, or a slave
whom he wishes to make his agent, or a female slave whom he intends to
marry; provided he marry her within six months, and provided that the
slave intended as an agent is not less than seventeen years of age at
the time of manumission.
6 When a motive for manumission, whether true or false, has once been
proved, the council cannot withdraw its sanction.
7 Thus the lex Aelia Sentia having prescribed a certain mode of
manumission for owners under twenty, it followed that though a person
fourteen years of age could make a will, and therein institute an heir
and leave legacies, yet he could not confer liberty on a slave until he
had completed his twentieth year. But it seemed an intolerable hardship
that a man who had the power of disposing freely of all his property
by will should not be allowed to give his freedom to a single slave:
wherefore we allow him to deal in his last will as he pleases with his
slaves as with the rest of his property, and even to give them their
liberty if he will. But liberty being a boon beyond price, for which
very reason the power of manumission was denied by the older law to
owners under twenty years of age, we have as it were selected a middle
course, and permitted persons under twenty years of age to manumit their
slaves by will, but not until they have completed their seventeenth
and entered on their eighteenth year. For when ancient custom allowed
persons of this age to plead on behalf of others, why should not their
judgement be deemed sound enough to enable them to use discretion in
giving freedom to their own slaves?
TITLE VII. OF THE REPEAL OF THE LEX FUFIA CANINIA
Moreover, by the lex Fufia Caninia a limit was placed on the number of
slaves who could be manumitted by their master's testament: but this
law we have thought fit to repeal, as an obstacle to freedom and to some
extent invidious, for it was certainly inhuman to take away from a man
on his deathbed the right of liberating the whole of his slaves, which
he could have exercised at any moment during his lifetime, unless there
were some other obstacle to the act of manumission.
TITLE VIII. OF PERSONS INDEPENDENT OR DEPENDENT
Another division of the law relating to persons classifies them as
either independent or dependent. Those again who are dependent are in
the power either of parents or of masters. Let us first then consider
those who are dependent, for by learning who these are we shall at the
same time learn who are independent. And first let us look at those who
are in the power of masters.
1 Now slaves are in the power of masters, a power recognised by the
law of all nations, for all nations present the spectacle of masters
invested with power of life and death over slaves; and to whatever is
acquired through a slave his owner is entitled.
2 But in the present day no one under our sway is permitted to
indulge in excessive harshness towards his slaves, without some reason
recognised by law; for, by a constitution of the Emperor Antoninus Pius,
a man is made as liable to punishment for killing his own slave as for
killing the slave of another person; and extreme severity on the part of
masters is checked by another constitution whereby the same Emperor, in
answer to inquiries from presidents of provinces concerning slaves who
take refuge at churches or statues of the Emperor, commanded that on
proof of intolerable cruelty a master should be compelled to sell his
slaves on fair terms, so as to receive their value. And both of these
are reasonable enactments, for the public interest requires that no one
should make an evil use of his own property. The terms of the rescript
of Antoninus to Aelius Marcianus are as follow:--'The powers of masters
over their slaves ought to continue undiminished, nor ought any man to
be deprived of his lawful rights; but it is the master's own interest
that relief justly sought against cruelty, insufficient sustenance, or
intolerable wrong, should not be denied. I enjoin you then to look
into the complaints of the slaves of Iulius Sabinus, who have fled for
protection to the statue of the Emperor, and if you find them treated
with undue harshness or other ignominious wrong, order them to be sold,
so that they may not again fall under the power of their master; and the
latter will find that if he attempts to evade this my enactment, I shall
visit his offence with severe punishment.'
TITLE IX. OF PATERNAL POWER
Our children whom we have begotten in lawful wedlock are in our power.
1 Wedlock or matrimony is the union of male and female, involving the
habitual intercourse of daily life.
2 The power which we have over our children is peculiar to Roman
citizens, and is found in no other nation.
3 The offspring then of you and your wife is in your power, and so too
is that of your son and his wife, that is to say, your grandson and
granddaughter, and so on. But the offspring of your daughter is not in
your power, but in that of its own father.
TITLE X. OF MARRIAGE
Roman citizens are joined together in lawful wedlock when they are
united according to law, the man having reached years of puberty, and
the woman being of a marriageable age, whether they be independent or
dependent: provided that, in the latter case, they must have the consent
of the parents in whose power they respectively are, the necessity of
which, and even of its being given before the marriage takes place, is
recognised no less by natural reason than by law. Hence the question has
arisen, can the daughter or son of a lunatic lawfully contract marriage?
and as the doubt still remained with regard to the son, we decided that,
like the daughter, the son of a lunatic might marry even without the
intervention of his father, according to the mode prescribed by our
constitution.
1 It is not every woman that can be taken to wife: for marriage with
certain classes of persons is forbidden. Thus, persons related as
ascendant and descendant are incapable of lawfully intermarrying; for
instance, father and daughter, grandfather and granddaughter, mother and
son, grandmother and grandson, and so on ad infinitum; and the union of
such persons is called criminal and incestuous. And so absolute is
the rule, that persons related as ascendant and descendant merely by
adoption are so utterly prohibited from intermarriage that dissolution
of the adoption does not dissolve the prohibition: so that an
adoptive daughter or granddaughter cannot be taken to wife even after
emancipation.
2 Collateral relations also are subject to similar prohibitions, but
not so stringent. Brother and sister indeed are prohibited from
intermarriage, whether they are both of the same father and mother, or
have only one parent in common: but though an adoptive sister cannot,
during the subsistence of the adoption, become a man's wife, yet if the
adoption is dissolved by her emancipation, or if the man is emancipated,
there is no impediment to their intermarriage. Consequently, if a man
wished to adopt his son-in-law, he ought first to emancipate his
daughter: and if he wished to adopt his daughter-in-law, he ought first to
emancipate his son.
3 A man may not marry his brother's or his sister's daughter, or even
his or her granddaughter, though she is in the fourth degree; for when
we may not marry a person's daughter, we may not marry the granddaughter
either. But there seems to be no obstacle to a man's marrying the
daughter of a woman whom his father has adopted, for she is no relation
of his by either natural or civil law.
4 The children of two brothers or sisters, or of a brother and sister,
may lawfully intermarry.
5 Again, a man may not marry his father's sister, even though the tie
be merely adoptive, or his mother's sister: for they are considered to
stand in the relation of ascendants. For the same reason too a man may
not marry his great-aunt either paternal or maternal.
6 Certain marriages again are prohibited on the ground of affinity, or
the tie between a man or his wife and the kin of the other respectively.
For instance, a man may not marry his wife's daughter or his son's wife,
for both are to him in the position of daughters. By wife's daughter
or son's wife we must be understood to mean persons who have been thus
related to us; for if a woman is still your daughterinlaw, that is,
still married to your son, you cannot marry her for another reason,
namely, because she cannot be the wife of two persons at once. So too
if a woman is still your stepdaughter, that is, if her mother is still
married to you, you cannot marry her for the same reason, namely,
because a man cannot have two wives at the same time.
7 Again, it is forbidden for a man to marry his wife's mother or his
father's wife, because to him they are in the position of a mother,
though in this case too our statement applies only after the
relationship has finally terminated; otherwise, if a woman is still your
stepmother, that is, is married to your father, the common rule of law
prevents her from marrying you, because a woman cannot have two husbands
at the same time: and if she is still your wife's mother, that is, if
her daughter is still married to you, you cannot marry her because you
cannot have two wives at the same time.
8 But a son of the husband by another wife, and a daughter of the wife
by another husband, and vice versa, can lawfully intermarry, even though
they have a brother or sister born of the second marriage.
9 If a woman who has been divorced from you has a daughter by a second
husband, she is not your stepdaughter, but Iulian is of opinion that you
ought not to marry her, on the ground that though your son's betrothed
is not your daughterinlaw, nor your father's betrothed you stepmother,
yet it is more decent and more in accordance with what is right to
abstain from intermarrying with them.
10 It is certain that the rules relating to the prohibited degrees of
marriage apply to slaves: supposing, for instance, that a father and
daughter, or a brother and sister, acquired freedom by manumission.
11 There are also other persons who for various reasons are forbidden to
intermarry, a list of whom we have permitted to be inserted in the books
of the Digest or Pandects collected from the older law.
12 Alliances which infringe the rules here stated do not confer the
status of husband and wife, nor is there in such case either wedlock or
marriage or dowry. Consequently children born of such a connexion
are not in their father's power, but as regards the latter are in
the position of children born of promiscuous intercourse, who, their
paternity being uncertain, are deemed to have no father at all, and
who are called bastards, either from the Greek word denoting illicit
intercourse, or because they are fatherless. Consequently, on the
dissolution of such a connexion there can be no claim for return of
dowry. Persons who contract prohibited marriages are subjected to
penalties set forth in our sacred constitutions.
13 Sometimes it happens that children who are not born in their father's
power are subsequently brought under it. Such for instance is the case
of a natural son made subject to his father's power by being inscribed a
member of the curia; and so too is that of a child of a free woman with
whom his father cohabited, though he could have lawfully married her,
who is subjected to the power of his father by the subsequent execution
of a dowry deed according to the terms of our constitution: and the same
boon is in effect bestowed by that enactment on children subsequently
born of the same marriage.
TITLE XI. OF ADOPTIONS
Not only natural children are subject, as we said, to paternal power,
but also adoptive children.
1 Adoption is of two forms, being effected either by rescript of the
Emperor, or by the judicial authority of a magistrate. The first is the
mode in which we adopt independent persons, and this form of adoption
is called adrogation: the second is the mode in which we adopt a person
subject to the power of an ascendant, whether a descendant in the first
degree, as a son or daughter, or in a remoter degree, as a grandson,
granddaughter, great-grandson, or great-granddaughter.
2 But by the law, as now settled by our constitution, when a child in
power is given in adoption to a stranger by his natural father, the
power of the latter is not extinguished; no right passes to the adoptive
father, nor is the person adopted in his power, though we have given a
right of succession in case of the adoptive father dying intestate.
But if the person to whom the child is given in adoption by its natural
father is not a stranger, but the child's own maternal grandfather, or,
supposing the father to have been emancipated, its paternal grandfather,
or its great-grandfather paternal or maternal, in this case, because the
rights given by nature and those given by adoption are vested in one
and the same person, the old power of the adoptive father is left
unimpaired, the strength of the natural bond of blood being augmented by
the civil one of adoption, so that the child is in the family and
power of an adoptive father, between whom and himself there existed
antecedently the relationship described.
3 When a child under the age of puberty is adopted by rescript of
the Emperor, the adrogation is only permitted after cause shown, the
goodness of the motive and the expediency of the step for the pupil
being inquired into. The adrogation is also made under certain
conditions; that is to say, the adrogator has to give security to a
public agent or attorney of the people, that if the pupil should die
within the age of puberty, he will return his property to the persons
who would have succeeded him had no adoption taken place. The adoptive
father again may not emancipate them unless upon inquiry they are found
deserving of emancipation, or without restoring them their property.
Finally, if he disinherits him at death, or emancipates him in his
lifetime without just cause, he is obliged to leave him a fourth of
his own property, besides that which he brought him when adopted, or by
subsequent acquisition.
4 It is settled that a man cannot adopt another person older than
himself, for adoption imitates nature, and it would be unnatural for a
son to be older than his father. Consequently a man who desires either
to adopt or to adrogate a son ought to be older than the latter by the
full term of puberty, or eighteen years.
5 A man may adopt a person as grandson or granddaughter, or as
great-grandson or great-granddaughter, and so on, without having a son at
all himself; 6 and similarly he may adopt another man's son as grandson,
or another man's grandson as son.
7 If he wishes to adopt some one as grandson, whether as the son of an
adoptive son of his own, or of a natural son who is in his power, the
consent of this son ought to be obtained, lest a family heir be thrust
upon him against his will: but on the other hand, if a grandfather
wishes to give a grandson by a son in adoption to some one else, the
son's consent is not requisite.
8 An adoptive child is in most respects in the same position, as regards
the father, as a natural child born in lawful wedlock. Consequently
a man can give in adoption to another a person whom he has adopted by
imperial rescript, or before the praetor or governor of a province,
provided that in this latter case he was not a stranger (i.e. was a
natural descendant) before he adopted him himself.
9 Both forms of adoption agree in this point, that persons incapable
of procreation by natural impotence are permitted to adopt, whereas
castrated persons are not allowed to do so.
10 Again, women cannot adopt, for even their natural children are not
subject to their power; but by the imperial clemency they are enabled to
adopt, to comfort them for the loss of children who have been taken from
them.
11 It is peculiar to adoption by imperial rescript, that children in the
power of the person adrogated, as well as their father, fall under the
power of the adrogator, assuming the position of grandchildren. Thus
Augustus did not adopt Tiberius until Tiberius had adopted Germanicus,
in order that the latter might become his own grandson directly the
second adoption was made.
12 The old writers record a judicious opinion contained in the writings
of Cato, that the adoption of a slave by his master is equivalent to
manumission. In accordance with this we have in our wisdom ruled by a
constitution that a slave to whom his master gives the title of son by
the solemn form of a record is thereby made free, although this is not
sufficient to confer on him the rights of a son.
TITLE XII. OF THE MODES IN WHICH PATERNAL POWER IS EXTINGUISHED
Let us now examine the modes in which persons dependent on a superior
become independent. How slaves are freed from the power of their
masters can be gathered from what has already been said respecting their
manumission. Children under paternal power become independent at the
parent's death, subject, however, to the following distinction.
The death of a father always releases his sons and daughters from
dependence; the death of a grandfather releases his grandchildren from
dependence only provided that it does not subject them to the power of
their father. Thus, if at the death of the grandfather the father is
alive and in his power, the grandchildren, after the grandfather's
death, are in the power of the father; but if at the time of the
grandfather's death the father is dead, or not subject to the
grandfather, the grandchildren will not fall under his power, but become
independent.
1 As deportation to an island for some penal offence entails loss of
citizenship, such removal of a man from the list of Roman citizens has,
like his death, the effect of liberating his children from his power;
and conversely, the deportation of a person subject to paternal power
terminates the power of the parent. In either case, however, if the
condemned person is pardoned by the grace of the Emperor, he recovers
all his former rights.
2 Relegation to an island does not extinguish paternal power, whether it
is the parent or the child who is relegated.
3 Again, a father's power is extinguished by his becoming a 'slave of
punishment,' for instance, by being condemned to the mines or exposed to
wild beasts.
4 A person in paternal power does not become independent by entering
the army or becoming a senator, for military service or consular
dignity does not set a son free from the power of his father. But by
our constitution the supreme dignity of the patriciate frees a son from
power immediately on the receipt of the imperial patent; for who would
allow anything so unreasonable as that, while a father is able by
emancipation to release his son from the tie of his power, the imperial
majesty should be unable to release from dependence on another the man
whom it has selected as a father of the State? 5 Again, capture of the
father by the enemy makes him a slave of the latter; but the status
of his children is suspended by his right of subsequent restoration by
postliminium; for on escape from captivity a man recovers all his former
rights, and among them the right of paternal power over his children,
the law of postliminium resting on a fiction that the captive has never
been absent from the state. But if he dies in captivity the son is
reckoned to have been independent from the moment of his father's
capture. So too, if a son or a grandson is captured by the enemy, the
power of his ascendant is provisionally suspended, though he may again
be subjected to it by postliminium. This term is derived from 'limen'
and 'post,' which explains why we say that the person who has been
captured by the enemy and has come back into our territories has
returned by postliminium: for just as the threshold forms the boundary
of a house, so the ancients represented the boundaries of the empire as
a threshold; and this is also the origin of the term 'limes, signifying
a kind of end and limit. Thus postliminium means that the captive
returns by the same threshold at which he was lost. A captive who is
recovered after a victory over the enemy is deemed to have returned by
postliminium.
6 Emancipation also liberates children from the power of the parent.
Formerly it was effected either by the observance of an old form
prescribed by statute by which the son was fictitiously sold and then
manumitted, or by imperial rescript. Our forethought, however, has
amended this by a constitution, which has abolished the old fictitious
form, and enabled parents to go directly to a competent judge or
magistrate, and in his presence release their sons or daughters,
grandsons or granddaughters, and so on, from their power. After this,
the father has by the praetor's edict the same rights over the property
of the emancipated child as a patron has over the property of his
freedman: and if at the time of emancipation the child, whether son or
daughter, or in some remoter degree of relationship, is beneath the age
of puberty, the father becomes by the emancipation his or her guardian.
7 It is to be noted, however, that a grandfather who has both a son,
and by that son a grandson or granddaughter, in his power, may either
release the son from his power and retain the grandson or granddaughter,
or emancipate both together; and a great-grandfather has the same
latitude of choice.
8 Again, if a father gives a son whom he has in his power in adoption
to the son's natural grandfather or great-grandfather, in accordance
with our constitution on this subject, that is to say, by declaring
his intention, before a judge with jurisdiction in the matter, in the
official records, and in the presence and with the consent of the person
adopted, the natural father's power is thereby extinguished, and passes
to the adoptive father, adoption by whom under these circumstances
retains, as we said, all its old legal consequences.
9 It is to be noted, that if your daughterinlaw conceives by your son,
and you emancipate or give the latter in adoption during her pregnancy,
the child when born will be in your power; but if the child is conceived
after its father's emancipation or adoption, it is in the power of its
natural father or its adoptive grandfather, as the case may be.
10 Children, whether natural or adoptive, are only very rarely able to
compel their parent to release them from his power.
TITLE XIII. OF GUARDIANSHIPS
Let us now pass on to another classification of persons. Persons
not subject to power may still be subject either to guardians or to
curators, or may be exempt from both forms of control. We will first
examine what persons are subject to guardians and curators, and thus
we shall know who are exempt from both kinds of control. And first of
persons subject to guardianship or tutelage.
1 Guardianship, as defined by Servius, is authority and control over a
free person, given and allowed by the civil law, in order to protect one
too young to defend himself:
2 and guardians are those persons who possess this authority and
control, their name being derived from their very functions; for they
are called guardians as being protectors and defenders, just as those
entrusted with the care of sacred buildings are called 'aeditui.'
3 The law allows a parent to appoint guardians in his will for those
children in his power who have not attained the age of puberty, without
distinction between sons and daughters; but a grandson or granddaughter
can receive a testamentary guardian only provided that the death of the
testator does not bring them under the power of their own father.
Thus, if your son is in your power at the time of your death, your
grandchildren by him cannot have a guardian given them by your will,
although they are in your power, because your death leaves them in the
power of their father.
4 And as in many other matters afterborn children are treated on the
footing of children born before the execution of the will, so it is
ruled that afterborn children, as well as children born before the will
was made, may have guardians therein appointed to them, provided that
if born in the testator's lifetime they would be family heirs and in his
power.
5 If a testamentary guardian be given by a father to his emancipated
son, he must be approved by the governor in all cases, though inquiry
into the case is unnecessary.
TITLE XIV. WHO CAN BE APPOINTED GUARDIANS BY WILL
1 Persons who are in the power of others may be appointed testamentary
guardians no less than those who are independent; and a man can also
validly appoint one of his own slaves as testamentary guardian, giving
him at the same time his liberty; and even in the absence of express
manumission his freedom is to be presumed to have been tacitly conferred
on him, whereby his appointment becomes a valid act, although of course
it is otherwise if the testator appointed him guardian in the erroneous
belief that he was free. The appointment of another man's slave as
guardian, without any addition or qualification, is void, though valid
if the words 'when he shall be free' are added: but this latter form is
ineffectual if the slave is the testator's own, the appointment being
void from the beginning.
2 If a lunatic or minor is appointed testamentary guardian, he cannot
act until, if a lunatic, he recovers his faculties, and, if a minor, he
attains the age of twentyfive years.
3 There is no doubt that a guardian may be appointed for and from a
certain time, or conditionally, or before the institution of the heir.
4 A guardian cannot, however, be appointed for a particular matter or
business, because his duties relate to the person, and not merely to a
particular business or matter.
5 If a man appoints a guardian to his sons or daughters, he is held to
have intended them also for such as may be afterborn, for the latter
are included in the terms son and daughter. In the case of grandsons,
a question may arise whether they are implicitly included in an
appointment of guardians to sons; to which we reply, that they are
included in an appointment of guardians if the term used is 'children,'
but not if it is 'sons': for the words son and grandson have quite
different meanings. Of course an appointment to afterborn children
includes all children, and not sons only.
TITLE XV. OF THE STATUTORY GUARDIANSHIP OF AGNATES
In default of a testamentary guardian, the statute of the Twelve Tables
assigns the guardianship to the nearest agnates, who are hence called
statutory guardians.
1 Agnates are persons related to one another by males, that is, through
their male ascendants; for instance, a brother by the same father, a
brother's son, or such son's son, a father's brother, his son or son's
son. But persons related only by blood through females are not agnates,
but merely cognates. Thus the son of your father's sister is no agnate
of yours, but merely your cognate, and vice versa; for children are
member's of their father's family, and not of your mother's.
2 It was said that the statute confers the guardianship, in case
of intestacy, on the nearest agnates; but by intestacy here must be
understood not only complete intestacy of a person having power to
appoint a testamentary guardian, but also the mere omission to make
such appointment, and also the case of a person appointed testamentary
guardian dying in the testator's lifetime.
3 Loss of status of any kind ordinarily extinguishes rights by agnation,
for agnation is a title of civil law. Not every kind of loss of status,
however, affects rights by cognation; because civil changes cannot
affect rights annexed to a natural title to the same extent that they
can affect those annexed to a civil one.
TITLE XVI. OF LOSS OF STATUS
Loss of status, or change in one's previous civil rights, is of three
orders, greatest, minor or intermediate, and least.
1 The greatest loss of status is the simultaneous loss of citizenship
and freedom, exemplified in those persons who by a terrible sentence are
made 'slaves of punishment,' in freedmen condemned for ingratitude to
their patrons, and in those who allow themselves to be sold in order to
share the purchase money when paid.
2 Minor or intermediate loss of status is loss of citizenship
unaccompanied by loss of liberty, and is incident to interdiction of
fire and water and to deportation to an island.
3 The least loss of status occurs when citizenship and freedom are
retained, but a man's domestic position is altered, and is exemplified
by adrogation and emancipation.
4 A slave does not suffer loss of status by being manumitted, for while
a slave he had no civil rights:
5 and where the change is one of dignity, rather than of civil rights,
there is no loss of status; thus it is no loss of status to be removed
from the senate.
6 When it was said that rights by cognation are not affected by loss of
status, only the least loss of status was meant; by the greatest loss
of status they are destroyed--for instance, by a cognate's becoming
a slave--and are not recovered even by subsequent manumission. Again,
deportation to an island, which entails minor or intermediate loss of
status, destroys rights by cognation.
7 When agnates are entitled to be guardians, it is not all who are so
entitled, but only those of the nearest degree, though if all are in the
same degree, all are entitled.
TITLE XVII. OF THE STATUTORY GUARDIANSHIP OF PATRONS
The same statute of the Twelve Tables assigns the guardianship of
freedmen and freedwomen to the patron and his children, and this
guardianship, like that of agnates, is called statutory guardianship;
not that it is anywhere expressly enacted in that statute, but because
its interpretation by the jurists has procured for it as much reception
as it could have obtained from express enactment: the fact that the
inheritance of a freedman or freedwoman, when they die intestate, was
given by the statute to the patron and his children, being deemed a
proof that they were intended to have the guardianship also, partly
because in dealing with agnates the statute coupled guardianship with
succession, and partly on the principle that where the advantage of
the succession is, there, as a rule, ought too to be the burden of the
guardianship. We say 'as a rule,' because if a slave below the age of
puberty is manumitted by a woman, though she is entitled, as patroness,
to the succession, another person is guardian.
TITLE XVIII. OF THE STATUTORY GUARDIANSHIP OF PARENTS
The analogy of the patron guardian led to another kind of socalled
statutory guardianship, namely that of a parent over a son or daughter,
or a grandson or granddaughter by a son, or any other descendant through
males, whom he emancipates below the age of puberty: in which case he
will be statutory guardian.
TITLE XIX. OF FIDUCIARY GUARDIANSHIP
There is another kind of guardianship known as fiduciary guardianship,
which arises in the following manner. If a parent emancipates a son or
daughter, a grandson or granddaughter, or other descendant while under
the age of puberty, he becomes their statutory guardian: but if at his
death he leaves male children, they become fiduciary guardians of their
own sons, or brothers and sisters, or other relatives who had been thus
emancipated. But on the decease of a patron who is statutory guardian
his children become statutory guardians also; for a son of a deceased
person, supposing him not to have been emancipated during his father's
lifetime, becomes independent at the latter's death, and does not
fall under the power of his brothers, nor, consequently, under their
guardianship; whereas a freedman, had he remained a slave, would at
his master's death have become the slave of the latter's children. The
guardianship, however, is not cast on these persons unless they are of
full age, which indeed has been made a general rule in guardianship and
curatorship of every kind by our constitution.
TITLE XX. OF ATILIAN GUARDIANS, AND THOSE APPOINTED UNDER THE LEX IULIA
ET TITIA
Failing every other kind of guardian, at Rome one used to be appointed
under the lex Atilia by the praetor of the city and the majority of the
tribunes of the people; in the provinces one was appointed under the lex
Iulia et Titia by the president of the province.
1 Again, on the appointment of a testamentary guardian subject to a
condition, or on an appointment limited to take effect after a certain
time, a substitute could be appointed under these statutes during the
pendency of the condition, or until the expiration of the term: and
even if no condition was attached to the appointment of a testamentary
guardian, a temporary guardian could be obtained under these statutes
until the succession had vested. In all these cases the office of the
guardian so appointed determined as soon as the condition was fulfilled,
or the term expired, or the succession vested in the heir.
2 On the capture of a guardian by the enemy, the same statutes regulated
the appointment of a substitute, who continued in office until the
return of the captive; for if he returned, he recovered the guardianship
by the law of postliminium.
3 But guardians have now ceased to be appointed under these statutes,
the place of the magistrates directed by them to appoint being taken,
first, by the consuls, who began to appoint guardians to pupils of
either sex after inquiry into the case, and then by the praetors, who
were substituted for the consuls by the imperial constitutions; for
these statutes contained no provisions as to security to be taken from
guardians for the safety of their pupils' property, or compelling them
to accept the office in case of disinclination.
4 Under the present law, guardians are appointed at Rome by the
prefect of the city, and by the praetor when the case falls within his
jurisdiction; in the provinces they are appointed, after inquiry, by
the governor, or by inferior magistrates at the latter's behest if the
pupil's property is of no great value.
5 By our constitution, however, we have done away with all difficulties
of this kind relating to the appointing person, and dispensed with the
necessity of waiting for an order from the governor, by enacting that if
the property of the pupil or adult does not exceed five hundred solidi,
guardians or curators shall be appointed by the officers known as
defenders of the city, along with the holy bishop of the place, or in
the presence of other public persons, or by the magistrates, or by the
judge of the city of Alexandria; security being given in the amounts
required by the constitution, and those who take it being responsible if
it be insufficient.
6 The wardship of children below the age of puberty is in accordance
with the law of nature, which prescribes that persons of immature years
shall be under another's guidance and control.
7 As guardians have the management of their pupils' business, they are
liable to be sued on account of their administration as soon as the
pupil attains the age of puberty.
TITLE XXI. OF THE AUTHORITY OF GUARDIANS
In some cases a pupil cannot lawfully act without the authority of
his guardian, in others he can. Such authority, for instance, is not
necessary when a pupil stipulates for the delivery of property, though
it is otherwise where he is the promisor; for it is an established rule
that the guardian's authority is not necessary for any act by which the
pupil simply improves his own position, though it cannot be dispensed
with where he proposes to make it worse. Consequently, unless the
guardian authorizes all transactions generating bilateral obligations,
such as sale, hire, agency, and deposit, the pupil is not bound,
though he can compel the other contracting party to discharge his own
obligation.
1 Pupils, however, require their guardian's authority before they can
enter on an inheritance, demand the possession of goods, or accept an
inheritance by way of trust, even though such act be advantageous to
them, and involves no chance of loss.
2 If the guardian thinks the transaction will be beneficial to his
pupil, his authority should be given presently and on the spot.
Subsequent ratification, or authority given by letter, has no effect.
3 In case of a suit between guardian and pupil, as the former cannot
lawfully authorize an act in which he is personally concerned or
interested, a curator is now appointed, in lieu of the old praetorian
guardian, with whose cooperation the suit is carried on, his office
determining as soon as it is decided.
TITLE XXII. OF THE MODES IN WHICH GUARDIANSHIP IS TERMINATED
Pupils of either sex are freed from guardianship when they reach the age
of puberty, which the ancients were inclined to determine, in the
case of males, not only by age, but also by reference to the physical
development of individuals. Our majesty, however, has deemed it not
unworthy of the purity of our times to apply in the case of males also
the moral considerations which, even among the ancients, forbade in the
case of females as indecent the inspection of the person. Consequently
by the promulgation of our sacred constitution we have enacted that
puberty in males shall be considered to commence immediately on
the completion of the fourteenth year, leaving unaltered the rule
judiciously laid down by the ancients as to females, according to which
they are held fit for marriage after completing their twelfth year.
1 Again, tutelage is terminated by adrogation or deportation of the
pupil before he attains the age of puberty, or by his being reduced to
slavery or taken captive by the enemy.
2 So too if a testamentary guardian be appointed to hold office until
the occurrence of a condition, on this occurrence his office determines.
3 Similarly tutelage is terminated by the death either of pupil or of
guardian.
4 If a guardian suffers such a loss of status as entails loss of either
liberty or citizenship, his office thereby completely determines. It is,
however, only the statutory kind of guardianship which is destroyed by
a guardian's undergoing the least loss of status, for instance, by his
giving himself in adoption. Tutelage is in every case put an end to by
the pupil's suffering loss of status, even of the lowest order.
5 Testamentary guardians appointed to serve until a certain time lay
down their office when that time arrives.
6 Finally, persons cease to be guardians who are removed from their
office on suspicion, or who are enabled to lay down the burden of
the tutelage by a reasonable ground of excuse, according to the rules
presently stated.
TITLE XXIII. OF CURATORS
Males, even after puberty, and females after reaching marriageable
years, receive curators until completing their twenty-fifth year,
because, though past the age fixed by law as the time of puberty, they
are not yet old enough to administer their own affairs.
1 Curators are appointed by the same magistrates who appoint guardians.
They cannot legally be appointed by will, though such appointment, if
made, is usually confirmed by an order of the praetor or governor of the
province.
2 A person who has reached the age of puberty cannot be compelled
to have a curator, except for the purpose of conducting a suit: for
curators, unlike guardians, can be appointed for a particular matter.
3 Lunatics and prodigals, even though more than twentyfive years of age,
are by the statute of the Twelve Tables placed under their agnates as
curators; but now, as a rule, curators are appointed for them at Rome
by the prefect of the city or praetor, and in the provinces by the
governor, after inquiry into the case.
4 Curators should also be given to persons of weak mind, to the deaf,
the dumb, and those suffering from chronic disease, because they are not
competent to manage their own affairs.
5 Sometimes even pupils have curators, as, for instance, when a
statutory guardian is unfit for his office: for if a pupil already has
one guardian, he cannot have another given him. Again, if a testamentary
guardian, or one appointed by the praetor or governor, is not a good man
of business, though perfectly honest in his management of the pupil's
affairs, it is usual for a curator to be appointed to act with
him. Again, curators are usually appointed in the room of guardians
temporarily excused from the duties of their office.
6 If a guardian is prevented from managing his pupil's affairs by
illhealth or other unavoidable cause, and the pupil is absent or an
infant, the praetor or governor of the province will, at the guardian's
risk, appoint by decree a person selected by the latter to act as agent
of the pupil.
TITLE XXIV. OF THE SECURITY TO BE GIVEN BY GUARDIANS AND CURATORS
To prevent the property of pupils and of persons under curators from
being wasted or diminished by their curators or guardians the
praetor provides for security being given by the latter against
maladministration. This rule, however, is not without exceptions, for
testamentary guardians are not obliged to give security, the testator
having had full opportunities of personally testing their fidelity
and carefulness, and guardians and curators appointed upon inquiry are
similarly exempted, because they have been expressly chosen as the best
men for the place.
1 If two or more are appointed by testament, or by a magistrate upon
inquiry, any one of them may offer security for indemnifying the pupil
or person to whom he is curator against loss, and be preferred to his
colleague, in order that he may either obtain the sole administration,
or else induce his colleague to offer larger security than himself, and
so become sole administrator by preference. Thus he cannot directly call
upon his colleague to give security; he ought to offer it himself, and
so give his colleague the option of receiving security on the one hand,
or of giving it on the other. If none of them offer security, and the
testator left directions as to which was to administer the property,
this person must undertake it: in default of this, the office is cast
by the praetor's edict on the person whom the majority of guardians or
curators shall choose. If they cannot agree, the praetor must interpose.
The same rule, authorizing a majority to elect one to administer the
property, is to be applied where several are appointed after inquiry by
a magistrate.
2 It is to be noted that, besides the liability of guardians and
curators to their pupils, or the persons for whom they act, for the
management of their property, there is a subsidiary action against the
magistrate accepting the security, which may be resorted to where
all other remedies prove inadequate, and which lies against those
magistrates who have either altogether omitted to take security from
guardians or curators, or taken it to an insufficient amount. According
to the doctrines stated by the jurists, as well as by imperial
constitutions, this action may be brought against the magistrate's heirs
as well as against him personally;
3 and these same constitutions ordain that guardians or curators who
make default in giving security may be compelled to do so by legal
distraint of their goods.
4 This action, however, will not lie against the prefect of the city,
the praetor, or the governor of a province, or any other magistrate
authorized to appoint guardians, but only against those to whose usual
duties the taking of security belongs.
TITLE XXV. OF GUARDIANS' AND CURATORS' GROUNDS OF EXEMPTION
There are various grounds on which persons are exempted from serving the
office of guardian or curator, of which the most common is their having
a certain number of children, whether in power or emancipated. If, that
is to say, a man has, in Rome, three children living, in Italy four, or
in the provinces five, he may claim exemption from these, as from other
public offices; for it is settled that the office of a guardian or
curator is a public one. Adopted children cannot be reckoned for this
purpose, though natural children given in adoption to others may:
similarly grandchildren by a son may be reckoned, so as to represent
their father, while those by a daughter may not. It is, however, only
living children who avail to excuse their fathers from serving as
guardian or curator; such as have died are of no account, though the
question has arisen whether this rule does not admit of an exception
where they have died in war; and it is agreed that this is so, but only
where they have fallen on the field of battle: for these, because they
have died for their country, are deemed to live eternally in fame.
1 The Emperor Marcus, too, replied by rescript, as is recorded in his
Semestria, that employment in the service of the Treasury is a valid
excuse from serving as guardian or curator so long as that employment
lasts.
2 Again, those are excused from these offices who are absent in the
service of the state; and a person already guardian or curator who has
to absent himself on public business is excused from acting in either of
these capacities during such absence, a curator being appointed to act
temporarily in his stead. On his return, he has to resume the burden
of tutelage, without being entitled to claim a year's exemption, as has
been settled since the opinion of Papinian was delivered in the fifth
book of his replies; for the year's exemption or vacation belongs only
to such as are called to a new tutelage.
3 By a rescript of the Emperor Marcus persons holding any magistracy may
plead this as a ground of exemption, though it will not enable them to
resign an office of this kind already entered upon.
4 No guardian or curator can excuse himself on the ground of an action
pending between himself and his ward, unless it relates to the latter's
whole estate or to an inheritance.
5 Again, a man who is already guardian or curator to three persons
without having sought after the office is entitled to exemption from
further burdens of the kind so long as he is actually engaged with
these, provided that the joint guardianship of several pupils, or
administration of an undivided estate, as where the wards are brothers,
is reckoned as one only.
6 If a man can prove that through poverty he is unequal to the burden of
the office, this, according to rescripts of the imperial brothers and of
the Emperor Marcus, is a valid ground of excuse.
7 Illhealth again is a sufficient excuse if it be such as to prevent a
man from attending to even his own affairs:
8 and the Emperor Pius decided by a rescript that persons unable to read
ought to be excused, though even these are not incapable of transacting
business.
9 A man too is at once excused if he can show that a father has
appointed him testamentary guardian out of enmity, while conversely no
one can in any case claim exemption who promised the ward's father that
he would act as guardian to them:
10 and it was settled by a rescript of M. Aurelius and L. Verus that the
allegation that one was unacquainted with the pupil's father cannot be
admitted as a ground of excuse.
11 Enmity against the ward's father, if extremely bitter, and if there
was no reconciliation, is usually accepted as a reason for exemption
from the office of guardian;
12 and similarly a person can claim to be excused whose status or civil
rights have been disputed by the father of the ward in an action.
13 Again, a person over seventy years of age can claim to be excused
from acting as guardian or curator, and by the older law persons less
than twentyfive were similarly exempted. But our constitution, having
forbidden the latter to aspire to these functions, has made excuses
unnecessary. The effect of this enactment is that no pupil or
person under twentyfive years of age is to be called to a statutory
guardianship; for it was most incongruous to place persons under the
guardianship or administration of those who are known themselves to need
assistance in the management of their own affairs, and are themselves
governed by others.
14 The same rule is to be observed with soldiers, who, even though they
desire it, may not be admitted to the office of guardian:
15 and finally grammarians, rhetoricians, and physicians at Rome, and
those who follow these callings in their own country and are within the
number fixed by law, are exempted from being guardians or curators.
16 If a person who has several grounds of excuse wishes to obtain
exemption, and some of them are not allowed, he is not prohibited from
alleging others, provided he does this within the time prescribed. Those
desirous of excusing themselves do not appeal, but ought to allege
their grounds of excuse within fifty days next after they hear of their
appointment, whatever the form of the latter, and whatever kind of
guardians they may be, if they are within a hundred miles of the place
where they were appointed: if they live at a distance of more than a
hundred miles, they are allowed a day for every twenty miles, and thirty
days in addition, but this time, as Scaevola has said, must never be so
reckoned as to amount to less than fifty days.
17 A person appointed guardian is deemed to be appointed to the whole
patrimony;
18 and after he has once acted as guardian he cannot be compelled
against his will to become the same person's curator--not even if the
father who appointed him testamentary guardian added in the will that
he made him curator, too, as soon as the ward reached fourteen years of
age--this having been decided by a rescript of the Emperors Severus and
Antoninus.
19 Another rescript of the same emperors settled that a man is
entitled to be excused from becoming his own wife's curator, even after
intermeddling with her affairs.
20 No man is discharged from the burden of guardianship who has procured
exemption by false allegations.
TITLE XXVI. OF GUARDIANS OR CURATORS WHO ARE SUSPECTED
The accusation of guardians or curators on suspicion originated in the
statute of the Twelve Tables;
1 the removal of those who are accused on suspicion is part of the
jurisdiction, at Rome, of the praetor, and in the provinces of their
governors and of the proconsul's legate.
2 Having shown what magistrates can take cognizance of this subject, let
us see what persons are liable to be accused on suspicion. All guardians
are liable, whether appointed by testament or otherwise; consequently
even a statutory guardian may be made the object of such an accusation.
But what is to be said of a patron guardian? Even here we must reply
that he too is liable; though we must remember that his reputation must
be spared in the event of his removal on suspicion.
3 The next point is to see what persons may bring this accusation; and
it is to be observed that the action partakes of a public character,
that is to say, is open to all. Indeed, by a rescript of Severus and
Antoninus even women are made competent to bring it, but only those who
can allege a close tie of affection as their motive; for instance, a
mother, nurse, grandmother, or sister. And the praetor will allow any
woman to prefer the accusation in whom he finds an affection real enough
to induce her to save a pupil from suffering harm, without seeming to be
more forward than becomes her sex.
4 Persons below the age of puberty cannot accuse their guardians on
suspicion; but by a rescript of Severus and Antoninus it has been
permitted to those who have reached that age to deal thus with their
curators, after taking the advice of their nearest relations.
5 A guardian is 'suspected' who does not faithfully discharge his
tutorial functions, though he may be perfectly solvent, as was the
opinion also of Julian. Indeed, Julian writes that a guardian may be
removed on suspicion before he commences his administration, and a
constitution has been issued in accordance with this view.
6 A person removed from office on suspicion incurs infamy if his offence
was fraud, but not if it was merely negligence.
7 As Papinian held, on a person being accused on suspicion he is
suspended from the administration until the action is decided.
8 If a guardian or curator who is accused on suspicion dies after the
commencement of the action, but before it has been decided, the action
is thereby extinguished;
9 and if a guardian fails to appear to a summons of which the object is
to fix by judicial order a certain rate of maintenance for the pupil,
the rescript of the Emperors Severus and Antoninus provides that the
pupil may be put in possession of the guardian's property, and orders
the sale of the perishable portions thereof after appointment of a
curator. Consequently, a guardian may be removed as suspected who does
not provide his pupil with sufficient maintenance.
10 If, on the other hand, the guardian appears, and alleges that the
pupil's property is too inconsiderable to admit of maintenance being
decreed, and it is shown that the allegation is false, the proper course
is for him to be sent for punishment to the prefect of the city, like
those who purchase a guardianship with bribery.
11 So too a freedman, convicted of having acted fraudulently as guardian
of the sons or grandsons of his patron, should be sent to the prefect of
the city for punishment.
12 Finally, it is to be noted, that guardians or curators who are guilty
of fraud in their administration must be removed from their office even
though they offer to give security, for giving security does not change
the evil intent of the guardian, but only gives him a larger space of
time wherein he may injure the pupil's property: 13 for a man's mere
character or conduct may be such as to justify one's deeming him
'suspected.' No guardian or curator, however, may be removed on
suspicion merely because he is poor, provided he is also faithful and
diligent.
BOOK II.
TITLES
I. Of the different kinds of Things
II. Of incorporeal Things
III. Of servitudes
IV. Of usufruct
V. Of use and habitation
VI. Of usucapion and long possession
VII. Of gifts
VIII. Of persons who may, and who may
not alienate
IX. Of persons through whom we acquire
X. Of the execution of wills
XI. Of soldiers' wills
XII. Of persons incapable of making wills
XIII. Of the disinherison of children
XIV. Of the institution of the heir
XV. Of ordinary substitution
XVI. Of pupillary substitution
XVII. Of the modes in which wills become
void
XVIII. Of an unduteous will
XIX. Of the kinds of and differences
between heirs
XX. Of legacies
XXI. Of the ademption and transference
of legacies
XXII. Of the lex Falcidia
XXIII. Of trust inheritances
XXIV. Of trust bequests of single things
XXV. Of codicils
TITLE I. OF THE DIFFERENT KINDS OF THINGS
In the preceding book we have expounded the law of Persons: now let us
proceed to the law of Things. Of these, some admit of private ownership,
while others, it is held, cannot belong to individuals: for some things
are by natural law common to all, some are public, some belong to a
society or corporation, and some belong to no one. But most things
belong to individuals, being acquired by various titles, as will appear
from what follows.
1 Thus, the following things are by natural law common to all--the air,
running water, the sea, and consequently the seashore. No one therefore
is forbidden access to the seashore, provided he abstains from injury to
houses, monuments, and buildings generally; for these are not, like the
sea itself, subject to the law of nations.
2 On the other hand, all rivers and harbours are public, so that all
persons have a right to fish therein.
3 The seashore extends to the limit of the highest tide in time of storm
or winter.
4 Again, the public use of the banks of a river, as of the river itself,
is part of the law of nations; consequently every one is entitled to
bring his vessel to the bank, and fasten cables to the trees growing
there, and use it as a resting-place for the cargo, as freely as he may
navigate the river itself. But the ownership of the bank is in the owner
of the adjoining land, and consequently so too is the ownership of the
trees which grow upon it.
5 Again, the public use of the seashore, as of the sea itself, is part
of the law of nations; consequently every one is free to build a cottage
upon it for purposes of retreat, as well as to dry his nets and haul
them up from the sea. But they cannot be said to belong to any one as
private property, but rather are subject to the same law as the sea
itself, with the soil or sand which lies beneath it.
6 As examples of things belonging to a society or corporation, and not
to individuals, may be cited buildings in cities--theatres, racecourses,
and such other similar things as belong to cities in their corporate
capacity.
7 Things which are sacred, devoted to superstitious uses, or sanctioned,
belong to no one, for what is subject to divine law is no one's
property.
8 Those things are sacred which have been duly consecrated to God by
His ministers, such as churches and votive offerings which have been
properly dedicated to His service; and these we have by our constitution
forbidden to be alienated or pledged, except to redeem captives from
bondage. If any one attempts to consecrate a thing for himself and by
his own authority, its character is unaltered, and it does not become
sacred. The ground on which a sacred building is erected remains sacred
even after the destruction of the building, as was declared also by
Papinian.
9 Any one can devote a place to superstitious uses of his own free
will, that is to say, by burying a dead body in his own land. It is not
lawful, however, to bury in land which one owns jointly with some one
else, and which has not hitherto been used for this purpose, without the
other's consent, though one may lawfully bury in a common sepulchre
even without such consent. Again, the owner may not devote a place to
superstitious uses in which another has a usufruct, without the consent
of the latter. It is lawful to bury in another man's ground, if he gives
permission, and the ground thereby becomes religious even though he
should not give his consent to the interment till after it has taken
place.
10 Sanctioned things, too, such as city walls and gates, are, in
a sense, subject to divine law, and therefore are not owned by any
individual. Such walls are said to be 'sanctioned,' because any offence
against them is visited with capital punishment; for which reason
those parts of the laws in which we establish a penalty for their
transgressors are called sanctions.
11 Things become the private property of individuals in many ways; for
the titles by which we acquire ownership in them are some of them titles
of natural law, which, as we said, is called the law of nations, while
some of them are titles of civil law. It will thus be most convenient to
take the older law first: and natural law is clearly the older, having
been instituted by nature at the first origin of mankind, whereas
civil laws first came into existence when states began to be founded,
magistrates to be created, and laws to be written.
12 Wild animals, birds, and fish, that is to say all the creatures which
the land, the sea, and the sky produce, as soon as they are caught
by any one become at once the property of their captor by the law of
nations; for natural reason admits the title of the first occupant to
that which previously had no owner. So far as the occupant's title is
concerned, it is immaterial whether it is on his own land or on that of
another that he catches wild animals or birds, though it is clear that
if he goes on another man's land for the sake of hunting or fowling,
the latter may forbid him entry if aware of his purpose. An animal thus
caught by you is deemed your property so long as it is completely under
your control; but so soon as it has escaped from your control, and
recovered its natural liberty, it ceases to be yours, and belongs to the
first person who subsequently catches it. It is deemed to have recovered
its natural liberty when you have lost sight of it, or when, though it
is still in your sight, it would be difficult to pursue it.
13 It has been doubted whether a wild animal becomes your property
immediately you have wounded it so severely as to be able to catch it.
Some have thought that it becomes yours at once, and remains so as
long as you pursue it, though it ceases to be yours when you cease
the pursuit, and becomes again the property of any one who catches it:
others have been of opinion that it does not belong to you till you have
actually caught it. And we confirm this latter view, for it may happen
in many ways that you will not capture it.
14 Bees again are naturally wild; hence if a swarm settles on your tree,
it is no more considered yours, until you have hived it, than the birds
which build their nests there, and consequently if it is hived by
some one else, it becomes his property. So too any one may take the
honeycombs which bees may chance to have made, though, of course, if you
see some one coming on your land for this purpose, you have a right,
to forbid him entry before that purpose is effected. A swarm which has
flown from your hive is considered to remain yours so long as it is in
your sight and easy of pursuit: otherwise it belongs to the first person
who catches it.
15 Peafowl too and pigeons are naturally wild, and it is no valid
objection that they are used to return to the same spots from which they
fly away, for bees do this, and it is admitted that bees are wild by
nature; and some people have deer so tame that they will go into the
woods and yet habitually come back again, and still no one denies that
they are naturally wild. With regard, however, to animals which have
this habit of going away and coming back again, the rule has been
established that they are deemed yours so long as they have the intent
to return: for if they cease to have this intention they cease to be
yours, and belong to the first person who takes them; and when they lose
the habit they seem also to have lost the intention of returning.
16 Fowls and geese are not naturally wild, as is shown by the fact that
there are some kinds of fowls and geese which we call wild kinds. Hence
if your geese or fowls are frightened and fly away, they are considered
to continue yours wherever they may be, even though you have lost sight
of them; and any one who keeps them intending thereby to make a profit
is held guilty of theft.
17 Things again which we capture from the enemy at once become ours
by the law of nations, so that by this rule even free men become our
slaves, though, if they escape from our power and return to their own
people, they recover their previous condition.
18 Precious stones too, and gems, and all other things found on the
seashore, become immediately by natural law the property of the finder:
19 and by the same law the young of animals of which you are the owner
become your property also.
20 Moreover, soil which a river has added to your land by alluvion
becomes yours by the law of nations. Alluvion is an imperceptible
addition; and that which is added so gradually that you cannot perceive
the exact increase from one moment of time to another is added by
alluvion.
21 If, however, the violence of the stream sweeps away a parcel of
your land and carries it down to the land of your neighbour it clearly
remains yours; though of course if in the process of time it becomes
firmly attached to your neighbour's land, they are deemed from that time
to have become part and parcel thereof.
22 When an island rises in the sea, though this rarely happens, it
belongs to the first occupant; for, until occupied, it is held to belong
to no one. If, however (as often occurs), an island rises in a river,
and it lies in the middle of the stream, it belongs in common to the
landowners on either bank, in proportion to the extent of their riparian
interest; but if it lies nearer to one bank than to the other, it
belongs to the landowners on that bank only. If a river divides into
two channels, and by uniting again these channels transform a man's land
into an island, the ownership of that land is in no way altered:
23 but if a river entirely leaves its old channel, and begins to run in
a new one, the old channel belongs to the landowners on either side of
it in proportion to the extent of their riparian interest, while the new
one acquires the same legal character as the river itself, and becomes
public. But if after a while the river returns to its old channel, the
new channel again becomes the property of those who possess the land
along its banks.
24 It is otherwise if one's land is wholly flooded, for a flood does not
permanently alter the nature of the land, and consequently if the water
goes back the soil clearly belongs to its previous owner.
25 When a man makes a new object out of materials belonging to another,
the question usually arises, to which of them, by natural reason, does
this new object belong--to the man who made it, or to the owner of the
materials? For instance, one man may make wine, or oil, or corn, out of
another man's grapes, olives, or sheaves; or a vessel out of his gold,
silver, or bronze; or mead of his wine and honey; or a plaster or
eyesalve out of his drugs; or cloth out of his wool; or a ship, a chest,
or a chair out of his timber. After many controversies between the
Sabinians and Proculians, the law has now been settled as follows, in
accordance with the view of those who followed a middle course between
the opinions of the two schools. If the new object can be reduced to
the materials out of which it was made, it belongs to the owner of the
materials; if not, it belongs to the person who made it. For instance, a
vessel can be melted down, and so reduced to the rude material--bronze,
silver, or gold--of which it is made: but it is impossible to reconvert
wine into grapes, oil into olives, or corn into sheaves, or even mead
into the wine and honey out of which it was compounded. But if a man
makes a new object out of materials which belong partly to him and
partly to another--for instance, mead of his own wine and another's
honey, or a plaster or eyesalve of drugs which are not all his own, or
cloth of wool which belongs only in part to him--in this case there
can be no doubt that the new object belongs to its creator, for he has
contributed not only part of the material, but the labour by which it
was made.
26 If, however, a man weaves into his own cloth another man's purple,
the latter, though the more valuable, becomes part of the cloth by
accession; but its former owner can maintain an action of theft against
the purloiner, and also a condiction, or action for reparative damages,
whether it was he who made the cloth, or some one else; for although the
destruction of property is a bar to a real action for its recovery,
it is no bar to a condiction against the thief and certain other
possessors.
27 If materials belonging to two persons are mixed by consent--for
instance, if they mix their wines, or melt together their gold or their
silver--the result of the mixture belongs to them in common. And the law
is the same if the materials are of different kinds, and their mixture
consequently results in a new object, as where mead is made by mixing
wine and honey, or electrum by mixing gold and silver; for even here it
is not doubted that the new object belongs in common to the owners of
the materials. And if it is by accident, and not by the intention of the
owners, that materials have become mixed, the law is the same, whether
they were of the same or of different kinds.
28 But if the corn of Titius has become mixed with yours, and this by
mutual consent, the whole will belong to you in common, because the
separate bodies or grains, which before belonged to one or the other
of you in severalty, have by consent on both sides been made your joint
property. If, however, the mixture was accidental, or if Titius mixed
the two parcels of corn without your consent, they do not belong to
you in common, because the separate grains remain distinct, and their
substance is unaltered; and in such cases the corn no more becomes
common property than does a flock formed by the accidental mixture of
Titius's sheep with yours. But if either of you keeps the whole of the
mixed corn, the other can bring a real action for the recovery of such
part of it as belongs to him, it being part of the province of the judge
to determine the quality of the wheat which belonged to each.
29 If a man builds upon his own ground with another's materials, the
building is deemed to be his property, for buildings become a part
of the ground on which they stand. And yet he who was owner of the
materials does not cease to own them, but he cannot bring a real action
for their recovery, or sue for their production, by reason of a clause
in the Twelve Tables providing that no one shall be compelled to take
out of his house materials (tignum), even though they belong to another,
which have once been built into it, but that double their value may
be recovered by the action called 'de tigno iniuncto.' The term tignum
includes every kind of material employed in building, and the object
of this provision is to avoid the necessity of having buildings pulled
down; but if through some cause or other they should be destroyed, the
owner of the materials, unless he has already sued for double value, may
bring a real action for recovery, or a personal action for production.
30 On the other hand, if one man builds a house on another's land with
his own materials, the house belongs to the owner of the land. In this
case, however, the right of the previous owner in the materials is
extinguished, because he is deemed to have voluntarily parted with them,
though only, of course, if he was aware that the land on which he was
building belonged to another man. Consequently, though the house should
be destroyed, he cannot claim the materials by real action. Of course,
if the builder of the house has possession of the land, and the owner of
the latter claims the house by real action, but refuses to pay for the
materials and the workmen's wages, he can be defeated by the plea of
fraud, provided the builder's possession is in good faith: for if he
knew that the land belonged to some one else it may be urged against him
that he was to blame for rashly building on land owned to his knowledge
by another man.
31 If Titius plants another man's shrub in land belonging to himself,
the shrub will become his; and, conversely, if he plants his own shrub
in the land of Maevius, it will belong to Maevius. In neither case,
however, will the ownership be transferred until the shrub has taken
root: for, until it has done this, it continues to belong to the
original owner. So strict indeed is the rule that the ownership of
the shrub is transferred from the moment it has taken root, that if a
neighbour's tree grows so close to the land of Titius that the soil of
the latter presses round it, whereby it drives its roots entirely into
the same, we say the tree becomes the property of Titius, on the ground
that it would be unreasonable to allow the owner of a tree to be a
different person from the owner of the land in which it is rooted.
Consequently, if a tree which grows on the boundaries of two estates
drives its roots even partially into the neighbour's soil, it becomes
the common property of the two landowners.
32 On the same principle corn is reckoned to become a part of the soil
in which it is sown. But exactly as (according to what we said) a man
who builds on another's land can defend himself by the plea of fraud
when sued for the building by the owner of the land, so here too one who
has in good faith and at his own expense put crops into another man's
soil can shelter himself behind the same plea, if refused compensation
for labour and outlay.
33 Writing again, even though it be in letters of gold, becomes a part
of the paper or parchment, exactly as buildings and sown crops become
part of the soil, and consequently if Titius writes a poem, or a
history, or a speech on your paper and parchment, the whole will be held
to belong to you, and not to Titius. But if you sue Titius to recover
your books or parchments, and refuse to pay the value of the writing,
he will be able to defend himself by the plea of fraud, provided that he
obtained possession of the paper or parchment in good faith.
34 Where, on the other hand, one man paints a picture on another's
board, some think that the board belongs, by accession, to the painter,
others, that the painting, however great its excellence, becomes part of
the board. The former appears to us the better opinion, for it is absurd
that a painting by Apelles or Parrhasius should be an accessory of a
board which, in itself, is thoroughly worthless. Hence, if the owner
of the board has possession of the picture, and is sued for it by the
painter, who nevertheless refuses to pay the cost of the board, he will
be able to repel him by the plea of fraud. If, on the other hand, the
painter has possession, it follows from what has been said that the
former owner of the board, [if he is to be able to sue at all], must
claim it by a modified and not by a direct action; and in this case,
if he refuses to pay the cost of the picture, he can be repelled by the
plea of fraud, provided that the possession of the painter be in good
faith; for it is clear, that if the board was stolen by the painter, or
some one else, from its former owner, the latter can bring the action of
theft.
35 If a man in good faith buys land from another who is not its owner,
though he believed he was, or acquires it in good faith by gift or some
other lawful title, natural reason directs that the fruits which he has
gathered shall be his, in consideration of his care and cultivation:
consequently if the owner subsequently appears and claims the land by
real action, he cannot sue for fruits which the possessor has consumed.
This, however, is not allowed to one who takes possession of land which
to his knowledge belongs to another person, and therefore he is obliged
not only to restore the land, but to make compensation for fruits even
though they have been consumed.
36 A person who has a usufruct in land does not become owner of
the fruits which grow thereon until he has himself gathered them;
consequently fruits which, at the moment of his decease, though ripe,
are yet ungathered, do not belong to his heir, but to the owner of the
land. What has been said applies also in the main to the lessee of land.
37 The term 'fruits,' when used of animals, comprises their young,
as well as milk, hair, and wool; thus lambs, kids, calves, and foals,
belong at once, by the natural law of ownership, to the fructuary.
But the term does not include the offspring of a female slave, which
consequently belongs to her master; for it seemed absurd to reckon human
beings as fruits, when it is for their sake that all other fruits have
been provided by nature.
38 The usufructuary of a flock, as Julian held, ought to replace any of
the animals which die from the young of the rest, and, if his usufruct
be of land, to replace dead vines or trees; for it is his duty to
cultivate according to law and use them like a careful head of a family.
39 If a man found treasure in his own land, the Emperor Hadrian,
following natural equity, adjudged to him the ownership of it, as he
also did to a man who found one by accident in soil which was sacred or
religious. If he found it in another man's land by accident, and without
specially searching for it, he gave half to the finder, half to the
owner of the soil; and upon this principle, if a treasure were found in
land belonging to the Emperor, he decided that half should belong to
the latter, and half to the finder; and consistently with this, if a man
finds one in land which belongs to the imperial treasury or the people,
half belongs to him, and half to the treasury or the State.
40 Delivery again is a mode in which we acquire things by natural law;
for it is most agreeable to natural equity that where a man wishes to
transfer his property to another person his wish should be confirmed.
Consequently corporeal things, whatever be their nature, admit of
delivery, and delivery by their owner makes them the property of the
alienee; this, for instance, is the mode of alienating stipendiary and
tributary estates, that is to say, estates lying in provincial soil;
between which, however, and estates in Italy there now exists, according
to our constitution, no difference.
41 And ownership is transferred whether the motive of the delivery
be the desire to make a gift, to confer a dowry, or any other motive
whatsoever. When, however, a thing is sold and delivered, it does not
become the purchaser's property until he has paid the price to the
vendor, or satisfied him in some other way, as by getting some one else
to accept liability for him, or by pledge. And this rule, though laid
down also in the statute of the Twelve Tables, is rightly said to be a
dictate of the law of all nations, that is, of natural law. But if the
vendor gives the purchaser credit, the goods sold belong to the latter
at once.
42 It is immaterial whether the person who makes delivery is the owner
himself, or some one else acting with his consent.
43 Consequently, if any one is entrusted by an owner with the management
of his business at his own free discretion, and in the execution of his
commission sells and delivers any article, he makes the receiver its
owner.
44 In some cases even the owner's bare will is sufficient, without
delivery, to transfer ownership. For instance, if a man sells or makes
you a present of a thing which he has previously lent or let to you or
placed in your custody, though it was not from that motive he originally
delivered it to you, yet by the very fact that he suffers it to be
yours you at once become its owner as fully as if it had been originally
delivered for the purpose of passing the property.
45 So too if a man sells goods lying in a warehouse, he transfers the
ownership of them to the purchaser immediately he has delivered to the
latter the keys of the warehouse.
46 Nay, in some cases the will of the owner, though directly only
towards an uncertain person, transfers the ownership of the thing, as
for instance when praetors and consuls throw money to a crowd: here they
know not which specific coin each person will get, yet they make the
unknown recipient immediately owner, because it is their will that each
shall have what he gets.
47 Accordingly, it is true that if a man takes possession of property
abandoned by its previous owner, he at once becomes its owner himself:
and a thing is said to be abandoned which its owner throws away with the
deliberate intention that it shall no longer be part of his property,
and of which, consequently, he immediately ceases to be the owner.
48 It is otherwise with things which are thrown overboard during a
storm, in order to lighten the ship; in the ownership of these things
there is no change, because the reason for which they are thrown
overboard is obviously not that the owner does not care to own them any
longer, but that he and the ship besides may be more likely to escape
the perils of the sea. Consequently any one who carries them off after
they are washed on shore, or who picks them up at sea and keeps them,
intending to make a profit thereby, commits a theft; for such things
seem to be in much the same position as those which fall out of a
carriage in motion unknown to their owners.
TITLE II. OF INCORPOREAL THINGS
Some things again are corporeal, and others incorporeal.
1 Those are corporeal which in their own nature are tangible, such as
land, slaves, clothing, gold, silver, and others innumerable.
2 Things incorporeal are such as are intangible: rights, for instance,
such as inheritance, usufruct, and obligations, however acquired. And it
is no objection to this definition that an inheritance comprises things
which are corporeal; for the fruits of land enjoyed by a usufructuary
are corporeal too, and obligations generally relate to the conveyance of
something corporeal, such as land, slaves, or money, and yet the right
of succession, the right of usufruct, and the right existing in every
obligation, are incorporeal.
3 So too the rights appurtenant to land, whether in town or country,
which are usually called servitudes, are incorporeal things.
TITLE III. OF SERVITUDES
The following are rights appurtenant to country estates: 'iter,'
the right of passage at will for a man only, not of driving beast or
vehicles; 'actus,' the right of driving beasts or vehicles (of which two
the latter contains the former, though the former does not contain the
latter, so that a man who has iter has not necessarily actus, while if
he has actus he has also iter, and consequently can pass himself even
though unaccompanied by cattle); 'via,' which is the right of going, of
driving any thing whatsoever, and of walking, and which thus contains
both iter and actus; and fourthly, 'aquaeductus,' the right of
conducting water over another man's land.
1 Servitudes appurtenant to town estates are rights which are attached
to buildings; and they are said to appertain to town estates because all
buildings are called 'town estates,' even though they are actually in
the country. The following are servitudes of this kind--the obligation
of a man to support the weight of his neighbour's house, to allow a beam
to be let into his wall, or to receive the rain from his neighbour's
roof on to his own either in drops or from a shoot, or from a gutter
into his yard; the converse right of exemption from any of these
obligations; and the right of preventing a neighbour from raising his
buildings, lest thereby one's ancient lights be obstructed.
2 Some think that among servitudes appurtenant to country estates ought
properly to be reckoned the rights of drawing water, of watering cattle,
of pasture, of burning lime, and of digging sand.
3 These servitudes are called rights attached to estates, because
without estates they cannot come into existence; for no one can acquire
or own a servitude attached to a town or country estate unless he has an
estate for it to be attached to.
4 When a landowner wishes to create any of these rights in favour of
his neighbour, the proper mode of creation is agreement followed by
stipulation. By testament too one can impose on one's heir an obligation
not to raise the height of his house so as to obstruct his neighbour's
ancient lights, or bind him to allow a neighbour to let a beam into
his wall, to receive the rain water from a neighbour's pipe, or allow a
neighbour a right of way, of driving cattle or vehicles over his land,
or conducting water over it.
TITLE IV. OF USUFRUCT
Usufruct is the right of using and taking the fruits of property not
one's own, without impairing the substance of that property; for being
a right over a corporeal thing, it is necessarily extinguished itself
along with the extinction of the latter.
1 Usufruct is thus a right detached from the aggregate of rights
involved in ownership, and this separation can be effected in very many
ways: for instance, if one man gives another a usufruct by legacy, the
legatee has the usufruct, while the heir has merely the bare ownership;
and, conversely, if a man gives a legacy of an estate, reserving
the usufruct, the usufruct belongs to the heir, while only the bare
ownership is vested in the legatee. Similarly, he can give to one man
a legacy of the usufruct, to another one of the estate, subject to the
other's usufruct. If it is wished to create a usufruct in favour of
another person otherwise than by testament, the proper mode is agreement
followed by stipulation. However, lest ownership should be entirely
valueless through the permanent separation from it of the usufruct,
certain modes have been approved in which usufruct may be extinguished,
and thereby revert to the owner.
2 A usufruct may be created not only in land or buildings, but also in
slaves, cattle, and other objects generally, except such as are actually
consumed by being used, of which a genuine usufruct is impossible by
both natural and civil law. Among them are wine, oil, grain, clothing,
and perhaps we may also say coined money; for a sum of money is in a
sense extinguished by changing hands, as it constantly does in simply
being used. For convenience sake, however, the senate enacted that a
usufruct could be created in such things, provided that due security be
given to the heir. Thus if a usufruct of money be given by legacy, that
money, on being delivered to the legatee, becomes his property, though
he has to give security to the heir that he will repay an equivalent
sum on his dying or undergoing a loss of status. And all things of this
class, when delivered to the legatee, become his property, though they
are first appraised, and the legatee then gives security that if he dies
or undergoes a loss of status he will ay the value which was put upon
them. Thus in point of fact the senate did not introduce a usufruct
of such things, for that was beyond its power, but established a right
analogous to usufruct by requiring security.
3 Usufruct determines by the death of the usufructuary, by his
undergoing either of the greater kinds of loss of status, by its
improper exercise, and by its nonexercise during the time fixed by
law; all of which points are settled by our constitution. It is also
extinguished when surrendered to the owner by the usufructuary (though
transfer to a third person is inoperative); and again, conversely,
by the fructuary becoming owner of the thing, this being called
consolidation. Obviously, a usufruct of a house is extinguished by
the house being burnt down, or falling through an earthquake or faulty
construction; and in such case a usufruct of the site cannot be claimed.
4 When a usufruct determines, it reverts to and is reunited with the
ownership; and from that moment he who before was but bare owner of the
thing begins to have full power over it.
TITLE V. OF USE AND HABITATION
A bare use, or right of using a thing, is created in the same mode as a
usufruct, and the modes in which it may determine are the same as those
just described.
1 A use is a less right than a usufruct; for if a man has a bare use of
an estate, he is deemed entitled to use the vegetables, fruit, flowers,
hay, straw, and wood upon it only so far as his daily needs require:
he may remain on the land only so long as he does not inconvenience its
owner, or impede those who are engaged in its cultivation; but he
cannot let or sell or give away his right to a third person, whereas a
usufructuary may.
2 Again, a man who has the use of a house is deemed entitled only to
live in it himself; he cannot transfer his right to a third person, and
it scarcely seems to be agreed that he may take in a guest; but besides
himself he may lodge there his wife, children, and freedmen, and other
free persons who form as regular a part of his establishment as his
slaves. Similarly, if a woman has the use of a house, her husband may
dwell there with her.
3 When a man has the use of a slave, he has only the right of personally
using his labour and services; in no way is he allowed to transfer his
right to a third person, and the same applies to the use of beasts of
burden.
4 If a legacy be given of the use of a herd or of a flock of sheep, the
usuary may not use the milk, lambs, or wool, for these are fruits; but
of course he may use the animals for the purpose of manuring his land.
5 If a right of habitation be given to a man by legacy or in some other
mode, this seems to be neither a use nor a usufruct, but a distinct
and as it were independent right; and by a constitution which we have
published in accordance with the opinion of Marcellus, and in the
interests of utility, we have permitted persons possessed of this right
not only to live in the building themselves, but also to let it out to
others.
6 What we have here said concerning servitudes, and the rights of
usufruct, use, and habitation, will be sufficient; of inheritance and
obligations we will treat in their proper places respectively. And
having now briefly expounded the modes in which we acquire things by the
law of nations, let us turn and see in what modes they are acquired by
statute or by civil law.
TITLE VI. OF USUCAPION AND LONG POSSESSION
It was a rule of the civil law that if a man in good faith bought a
thing, or received it by way of gift, or on any other lawful ground,
from a person who was not its owner, but whom he believed to be such, he
should acquire it by usucapion--if a movable, by one year's possession,
and by two years' possession if an immovable, though in this case
only if it were in Italian soil;--the reason of the rule being the
inexpediency of allowing ownership to be long unascertained. The
ancients thus considered that the periods mentioned were sufficient to
enable owners to look after their property; but we have arrived at a
better opinion, in order to save people from being overquickly defrauded
of their own, and to prevent the benefit of this institution from being
confined to only a certain part of the empire. We have consequently
published a constitution on the subject, enacting that the period of
usucapion for movables shall be three years, and that ownership of
immovables shall be acquired by long possession--possession, that is to
say, for ten years, if both parties dwell in the same province, and for
twenty years if in different provinces; and things may in these modes
be acquired in full ownership, provided the possession commences on a
lawful ground, not only in Italy but in every land subject to our sway.
1 Some things, however, not withstanding the good faith of the
possessor, and the duration of his possession, cannot be acquired by
usucapion; as is the case, for instance, if one possesses a free man, a
thing sacred or religious, or a runaway slave.
2 Things again of which the owner lost possession by theft, or
possession of which was gained by violence, cannot be acquired by
usucapion, even by a person who has possessed them in good faith for the
specified period: for stolen things are declared incapable of usucapion
by the statute of the Twelve Tables and by the lex Atinia, and things
taken with violence by the lex Iulia et Plautia.
3 The statement that things stolen or violently possessed cannot, by
statute, be acquired by usucapion, means, not that the thief or violent
dispossessor is incapable of usucapion--for these are barred by another
reason, namely the fact that their possession is not in good faith; but
that even a person who has purchased the thing from them in good faith,
or received it on some other lawful ground, is incapable of acquiring by
usucapion. Consequently, in things movable even a person who possesses
in good faith can seldom acquire ownership by usucapion, for he who
sells, or on some other ground delivers possession of a thing belonging
to another, commits a theft.
4 However, this admits of exception; for if an heir, who believes a
thing lent or let to, or deposited with, the person whom he succeeds,
to be a portion of the inheritance, sells or gives it by way of dowry to
another who receives it in good faith, there is no doubt that the latter
can acquire the ownership of it by usucapion; for the thing is here not
tainted with the flaw attaching to stolen property, because an heir does
not commit a theft who in good faith conveys a thing away believing it
to be his own.
5 Again, the usufructuary of a female slave, who believes her offspring
to be his property, and sells or gives it away, does not commit a theft:
for theft implies unlawful intention.
6 There are also other ways in which one man can transfer to another
property which is not his own, without committing a theft, and thereby
enable the receiver to acquire by usucapion.
7 Usucapion of property classed among things immovable is an easier
matter; for it may easily happen that a man may, without violence,
obtain possession of land which, owing to the absence or negligence of
its owner, or to his having died and left no successor, is presently
possessed by no one. Now this man himself does not possess in good
faith, because he knows the land on which he has seized is not his own:
but if he delivers it to another who receives it in good faith, the
latter can acquire it by long possession, because it has neither
been stolen nor violently possessed; for the idea held by some of the
ancients, that a piece of land or a place can be stolen, has now been
exploded, and imperial constitutions have been enacted in the interests
of persons possessing immovables, to the effect that no one ought to
be deprived of a thing of which he has had long and unquestioned
possession.
8 Sometimes indeed even things which have been stolen or violently
possessed can be acquired by usucapion, as for instance after they have
again come under the power of their real owner: for by this they are
relieved from the taint which had attached to them, and so become
capable of usucapion.
9 Things belonging to our treasury cannot be acquired by usucapion. But
there is on record an opinion of Papinian, supported by the rescripts of
the Emperors Pius, Severus, and Antoninus, that if, before the property
of a deceased person who has left no heir is reported to the exchequer,
some one has bought or received some part thereof, he can acquire it by
usucapion.
10 Finally, it is to be observed that things are incapable of being
acquired through usucapion by a purchaser in good faith, or by one who
possesses on some other lawful ground, unless they are free from all
flaws which vitiate the usucapion.
11 If there be a mistake as to the ground on which possession is
acquired, and which it is wrongly supposed will support usucapion,
usucapion cannot take place. Thus a man's possession may be founded on
a supposed sale or gift, whereas in point of fact there has been no sale
or gift at all.
12 Long possession which has begun to run in favour of a deceased person
continues to run on in favour of his heir or praetorian successor, even
though he knows that the land belongs to another person. But if the
deceased's possession had not a lawful inception, it is not available
to the heir or praetorian successor, although ignorant of this. Our
constitution has enacted that in usucapion too a similar rule shall
be observed, and that the benefit of the possession shall continue in
favour of the successor.
13 The Emperors Severus and Antoninus have decided by a rescript that a
purchaser too may reckon as his own the time during which his vendor has
possessed the thing.
14 Finally, it is provided by an edict of the Emperor Marcus that after
an interval of five years a purchaser from the treasury of property
belonging to a third person may repel the owner, if sued by him, by
an exception. But a constitution issued by Zeno of sacred memory has
protected persons who acquire things from the treasury by purchase,
gift, or other title, affording them complete security from the moment
of transfer, and guaranteeing their success in any action relating
thereto, whether they be plaintiffs or defendants; while it allows those
who claim any action in respect of such property as owners or pledges
to sue the imperial treasury at any time within four years from the
transaction. A divine constitution which we ourselves have lately issued
has extended the operation of Zeno's enactment, respecting conveyances
by the treasury, to persons who have acquired anything from our palace
or that of the Empress.
TITLE VII. OF GIFTS
Another mode in which property is acquired is gift. Gifts are of two
kinds; those made in contemplation of death, and those not so made.
1 Gifts of the first kind are those made in view of approaching death,
the intention of the giver being that in the event of his decease the
thing given should belong to the donee, but that if he should survive or
should desire to revoke the gift, or if the donee should die first, the
thing should be restored to him. These gifts in contemplation of death
now stand on exactly the same footing as legacies; for as in some
respects they were more like ordinary gifts, in others more like
legacies, the jurists doubted under which of these two classes
they should be placed, some being for gift, others for legacy: and
consequently we have enacted by constitution that in nearly every
respect they shall be treated like legacies, and shall be governed by
the rules laid down respecting them in our constitution. In a word, a
gift in contemplation of death is where the donor would rather have the
thing himself than that the donee should have it, and that the latter
should rather have it than his own heir. An illustration may be found in
Homer, where Telemachus makes a gift to Piraeus.
2 Gifts which are made without contemplation of death, which we call
gifts between the living, are of another kind, and have nothing in
common with legacies. If the transaction be complete, they cannot be
revoked at pleasure; and it is complete when the donor has manifested
his intention, whether in writing or not. Our constitution has settled
that such a manifestation of intention binds the donor to deliver,
exactly as in the case of sale; so that even before delivery gifts
are completely effectual, and the donor is under a legal obligation to
deliver the object. Enactments of earlier emperors required that
such gifts, if in excess of two hundred solidi, should be officially
registered; but our constitution has raised this maximum to five hundred
solidi, and dispensed with the necessity of registering gifts of this
or of a less amount; indeed it has even specified some gifts which are
completely valid, and require no registration, irrespective of their
amount. We have devised many other regulations in order to facilitate
and secure gifts, all of which may be gathered from the constitutions
which we have issued on this topic. It is to be observed, however,
that even where gifts have been completely executed we have by our
constitution under certain circumstances enabled donors to revoke them,
but only on proof of ingratitude on the part of the recipient of the
bounty; the aim of this reservation being to protect persons, who have
given their property to others, from suffering at the hands of the
latter injury or loss in any of the modes detailed in our constitution.
3 There is another specific kind of gift between the living, with which
the earlier jurists were quite unacquainted, and which owed its
later introduction to more recent emperors. It was called gift before
marriage, and was subject to the implied condition that it should not
be binding until the marriage had taken place; its name being due to the
fact that it was always made before the union of the parties, and could
never take place after the marriage had once been celebrated. The first
change in this matter was made by our imperial father Justin, who, as
it had been allowed to increase dowries even after marriage, issued a
constitution authorizing the increase of gifts before marriage during
the continuance of the marriage tie in cases where an increase had been
made to the dowry. The name 'gift before marriage' was, however, still
retained, though now inappropriate, because the increase was made to it
after the marriage. We, however, in our desire to perfect the law, and
to make names suit the things which they are used to denote, have by
a constitution permitted such gifts to be first made, and not merely
increased, after the celebration of the marriage, and have directed that
they shall be called gifts 'on account of' (and not 'before') marriage,
thereby assimilating them to dowries; for as dowries are not only
increased, but actually constituted, during marriage, so now gifts
on account of marriage may be not only made before the union of
the parties, but may be first made as well as increased during the
continuance of that union.
4 There was formerly too another civil mode of acquisition, namely, by
accrual, which operated in the following way: if a person who owned
a slave jointly with Titius gave him his liberty himself alone by
vindication or by testament, his share in the slave was lost, and went
to the other joint owner by accrual. But as this rule was very bad as a
precedent--for both the slave was cheated of his liberty, and the kinder
masters suffered all the loss while the harsher ones reaped all the
gain--we have deemed it necessary to suppress a usage which seemed so
odious, and have by our constitution provided a merciful remedy, by
discovering a means by which the manumitter, the other joint owner,
and the liberated slave, may all alike be benefited. Freedom, in whose
behalf even the ancient legislators clearly established many rules at
variance with the general principles of law, will be actually acquired
by the slave; the manumitter will have the pleasure of seeing the
benefit of his kindness undisturbed; while the other joint owner, by
receiving a money equivalent proportionate to his interest, and on the
scale which we have fixed, will be indemnified against all loss.
TITLE VIII. OF PERSONS WHO MAY, AND WHO MAY NOT ALIENATE
It sometimes happens that an owner cannot alienate, and that a nonowner
can. Thus the alienation of dowry land by the husband, without the
consent of the wife, is prohibited by the lex Iulia, although, since
it has been given to him as dowry, he is its owner. We, however, have
amended the lex Iulia, and thus introduced an improvement; for that
statute applied only to land in Italy, and though it prohibited a
mortgage of the land even with the wife's consent, it forbade it to be
alienated only without her concurrence. To correct these two defects we
have forbidden mortgages as well as alienations of dowry land even when
it is situated in the provinces, so that such land can now be dealt with
in neither of these ways, even if the wife concurs, lest the weakness
of the female sex should be used as a means to the wasting of their
property.
1 Conversely, a pledgee, in pursuance of his agreement, may alienate
the pledge, though not its owner; this, however, may seem to rest on the
assent of the pledgor given at the inception of the contract, in which
it was agreed that the pledgee should have a power of sale in default of
repayment. But in order that creditors may not be hindered from pursuing
their lawful rights, or debtors be deemed to be overlightly deprived of
their property, provisions have been inserted in our constitution and
a definite procedure established for the sale of pledges, by which the
interests of both creditors and debtors have been abundantly guarded.
2 We must next observe that no pupil of either sex can alienate anything
without his or her guardian's authority. Consequently, if a pupil
attempts to lend money without such authority, no property passes, and
he does not impose a contractual obligation; hence the money, if it
exists, can be recovered by real action. If the money which he attempted
to lend has been spent in good faith by the wouldbe borrower, it can
be sued for by the personal action called condiction; if it has been
fraudulently spent, the pupil can sue by personal action for its
production. On the other hand, things can be validly conveyed to pupils
of either sex without the guardian's authority; accordingly, if a debtor
wishes to pay a pupil, he must obtain the sanction of the guardian to
the transaction, else he will not be released. In a constitution
which we issued to the advocates of Caesarea at the instance of the
distinguished Tribonian, quaestor of our most sacred palace, it has with
the clearest reason been enacted, that the debtor of a pupil may safely
pay a guardian or curator by having first obtained permission by the
order of a judge, for which no fee is to be payable: and if the judge
makes the order, and the debtor in pursuance thereof makes payment, he
is completely protected by this form of discharge. Supposing, however,
that the form of payment be other than that which we have fixed, and
that the pupil, though he still has the money in his possession, or has
been otherwise enriched by it, attempts to recover the debt by action,
he can be repelled by the plea of fraud. If on the other hand he has
squandered the money or had it stolen from him, the plea of fraud will
not avail the debtor, who will be condemned to pay again, as a penalty
for having carelessly paid without the guardian's authority, and not
in accordance with our regulation. Pupils of either sex cannot validly
satisfy a debt without their guardian's authority, because the money
paid does not become the creditor's property; the principle being that
no pupil is capable of alienation without his guardian's sanction.
TITLE IX. OF PERSONS THROUGH WHOM WE ACQUIRE
We acquire property not only by our own acts, but also by the acts
of persons in our power, of slaves in whom we have a usufruct, and of
freemen and slaves belonging to another but whom we possess in good
faith. Let us now examine these cases in detail.
1 Formerly, whatever was received by a child in power of either sex,
with the exception of military peculium, was acquired for the parent
without any distinction; and the parent was entitled to give away or
sell to one child, or to a stranger, what had been acquired through
another, or dispose of it in any other way that he pleased. This,
however, seemed to us to be a cruel rule, and consequently by a general
constitution which we have issued we have improved the children's
position, and yet reserved to parents all that was their due. This
enacts that whatever a child gains by and through property, of which
his father allows him the control, is acquired, according to the old
practice, for the father alone; for what unfairness is there in property
derived from the father returning to him? But of anything which the
child derives from any source other than his father, though his father
will have a usufruct therein, the ownership is to belong to the child,
that he may not have the mortification of seeing the gains which he has
made by his own toil or good fortune transferred to another.
2 We have also made a new rule relating to the right which a father had
under earlier constitutions, when he emancipated a child, of retaining
absolutely, if he pleased, a third part of such property of the child
as he himself had no ownership in, as a kind of consideration for
emancipating him. The harsh result of this was that a son was by
emancipation deprived of the ownership of a third of his property; and
thus the honour which he got by being emancipated and made independent
was balanced by the diminution of his fortune. We have therefore enacted
that the parent, in such a case, shall no longer retain the ownership of
a third of the child's property, but, in lieu thereof, the usufruct of
one half; and thus the son will remain absolute owner of the whole of
his fortune, while the father will reap a greater benefit than before,
by being entitled to the enjoyment of a half instead of a third.
3 Again, all rights which your slaves acquire by tradition, stipulation,
or any other title, are acquired for you, even though the acquisition be
without your knowledge, or even against your will; for a slave, who
is in the power of another person, can have nothing of his own.
Consequently, if he is instituted heir, he must, in order to be able to
accept the inheritance, have the command of his master; and if he has
that command, and accepts the inheritance, it is acquired for his master
exactly as if the latter had himself been instituted heir; and it is
precisely the same with a legacy. And not only is ownership acquired for
you by those in your power, but also possession; for you are deemed to
possess everything of which they have obtained detention, and thus
they are to you instruments through whom ownership may be acquired by
usucapion or long possession.
4 Respecting slaves in whom a person has only a usufruct, the rule is,
that what they acquire by means of the property of the usufructuary,
or by their own work, is acquired for him; but what they acquire by
any other means belongs to their owner, to whom they belong themselves.
Accordingly, if such a slave is instituted heir, or made legatee
or donee, the succession, legacy, or gift is acquired, not for the
usufructuary, but for the owner. And a man who in good faith possesses a
free man or a slave belonging to another person has the same rights as
a usufructuary; what they acquire by any other mode than the two we have
mentioned belongs in the one case to the free man, in the other to the
slave's real master. After a possessor in good faith has acquired the
ownership of a slave by usucapion, everything which the slave acquires
belongs to him without distinction; but a fructuary cannot acquire
ownership of a slave in this way, because in the first place he does not
possess the slave at all, but has merely a right of usufruct in him,
and because in the second place he is aware of the existence of another
owner. Moreover, you can acquire possession as well as ownership through
slaves in whom you have a usufruct or whom you possess in good faith,
and through free persons whom in good faith you believe to be your
slaves, though as regards all these classes we must be understood to
speak with strict reference to the distinction drawn above, and to mean
only detention which they have obtained by means of your property or
their own work.
5 From this it appears that free men not subject to your power, or whom
you do not possess in good faith, and other persons' slaves, of whom
you are neither usufructuaries nor just possessors, cannot under any
circumstances acquire for you; and this is the meaning of the maxim
that a man cannot be the means of acquiring anything for one who is
a stranger in relation to him. To this maxim there is but one
exception--namely, that, as is ruled in a constitution of the Emperor
Severus, a free person, such as a general agent, can acquire possession
for you, and that not only when you know, but even when you do not know
of the fact of the acquisition: and through this possession ownership
can be immediately acquired also, if it was the owner who delivered the
thing; and if it was not, it can be acquired ultimately by usucapion or
by the plea of long possession.
6 So much at present concerning the modes of acquiring rights over
single things: for direct and fiduciary bequests, which are also among
such modes, will find a more suitable place in a later portion of our
treatise. We proceed therefore to the titles whereby an aggregate of
rights is acquired. If you become the successors, civil or praetorian,
of a person deceased, or adopt an independent person by adrogation, or
become assignees of a deceased's estate in order to secure their liberty
to slaves manumitted by his will, the whole estate of those persons is
transferred to you in an aggregate mass. Let us begin with inheritances,
whose mode of devolution is twofold, according as a person dies testate
or intestate; and of these two modes we will first treat of acquisition
by will. The first point which here calls for exposition is the mode in
which wills are made.
TITLE X. OF THE EXECUTION OF WILLS
The term testament is derived from two words which mean a signifying of
intention.
1 Lest the antiquities of this branch of law should be entirely
forgotten, it should be known that originally two kinds of testaments
were in use, one of which our ancestors employed in times of peace and
quiet, and which was called the will made in the comitia calata, while
the other was resorted to when they were setting out to battle, and was
called procinctum. More recently a third kind was introduced, called the
will by bronze and balance, because it was made by mancipation, which
was a sort of fictitious sale, in the presence of five witnesses and a
balance holder, all Roman citizens above the age of puberty, together
with the person who was called the purchaser of the family. The two
first-mentioned kinds of testament, however, went out of use even in
ancient times, and even the third, or will by bronze and balance, though
it has remained in vogue longer than they, has become partly disused.
2 All these three kinds of will which we have mentioned belonged to the
civil law, but later still a fourth form was introduced by the praetor's
edict; for the new law of the praetor, or ius honorarium, dispensed
with mancipation, and rested content with the seals of seven witnesses,
whereas the seals of witnesses were not required by the civil law.
3 When, however, by a gradual process the civil and praetorian
laws, partly by usage, partly by definite changes introduced by the
constitution, came to be combined into a harmonious whole, it was
enacted that a will should be valid which was wholly executed at one
time and in the presence of seven witnesses (these two points being
required, in a way, by the old civil law), to which the witnesses
signed their names--a new formality imposed by imperial legislation--and
affixed their seals, as had been required by the praetor's edict. Thus
the present law of testament seems to be derived from three distinct
sources; the witnesses, and the necessity of their all being present
continuously through the execution of the will in order that the
execution may be valid, coming from the civil law: the signing of
the document by the testator and the witnesses being due to imperial
constitutions, and the exact number of witnesses, and the sealing of the
will by them, to the praetor's edict.
4 An additional requirement imposed by our constitution, in order to
secure the genuineness of testaments and prevent forgery, is that
the name of the heir shall be written by either the testator or the
witnesses, and generally that everything shall be done according to the
tenor of that enactment.
5 The witnesses may all seal the testament with the same seal; for, as
Pomponius remarks, what if the device on all seven seals were the same?
It is also lawful for a witness to use a seal belonging to another
person.
6 Those persons only can be witnesses who are legally capable of
witnessing a testament. Women, persons below the age of puberty, slaves,
lunatics, persons dumb or deaf, and those who have been interdicted from
the management of their property, or whom the law declares worthless and
unfitted to perform this office, cannot witness a will.
7 In cases where one of the witnesses to a will was thought free at the
time of its execution, but was afterwards discovered to be a slave, the
Emperor Hadrian, in his rescript to Catonius Verus, and afterwards the
Emperors Severus and Antoninus declared that of their goodness they
would uphold such a will as validly made; for, at the time when it was
sealed, this witness was admitted by all to be free, and, as such, had
had his civil position called in question by no man.
8 A father and a son in his power, or two brothers who are both in the
power of one father, can lawfully witness the same testament, for there
can be no harm in several persons of the same family witnessing together
the act of a man who is to them a stranger.
9 No one, however, ought to be among the witnesses who is in the
testator's power, and if a son in power makes a will of military
peculium after his discharge, neither his father nor any one in his
father's power is qualified to be a witness; for it is not allowed to
support a will by the evidence of persons in the same family with the
testator.
10 No will, again, can be witnessed by the person instituted heir, or
by any one in his power, or by a father in whose power he is, or by a
brother under the power of the same father: for the execution of a will
is considered at the present day to be purely and entirely a transaction
between the testator and the heir. Through mistaken ideas on this matter
the whole law of testamentary evidence fell into confusion: for the
ancients, though they rejected the evidence of the purchaser of the
family and of persons connected with him by the tie of power, allowed
a will to be witnessed by the heir and persons similarly connected with
him, though it must be admitted that they accompanied this privilege
with urgent cautions against its abuse. We have, however, amended this
rule, and enacted in the form of law what the ancients expressed in the
form only of advice, by assimilating the heir to the old purchaser of
the family, and have rightly forbidden the heir, who now represents that
character, and all other persons connected with him by the tie referred
to, to bear witness in a matter in which, in a sense, they would be
witnesses in their own behalf. Accordingly, we have not allowed earlier
constitutions on this subject to be inserted in our Code.
11 Legatees, and persons who take a benefit under a will by way of
trust, and those connected with them, we have not forbidden to be
witnesses, because they are not universal successors of the deceased:
indeed, by one of our constitutions we have specially granted this
privilege to them, and, a fortiori, to persons in their power, or in
whose power they are.
12 It is immaterial whether the will be written on a tablet, paper,
parchment, or any other substance: and a man may execute any number of
duplicates of his will, for this is sometimes necessary, though in each
of them the usual formalities must be observed. For instance, a person
setting out upon a voyage may wish to take a statement of his last
wishes along with him, and also to leave one at home; and numberless
other circumstances which happen to a man, and over which he has no
control, will make this desirable.
14 So far of written wills. When, however, one wishes to make a will
binding by the civil law, but not in writing, he may summon seven
witnesses, and in their presence orally declare his wishes; this, it
should be observed, being a form of will which has been declared by
constitutions to be perfectly valid by civil law.
TITLE XI. OF SOLDIERS' WILLS
Soldiers, in consideration of their extreme ignorance of law, have
been exempted by imperial constitutions from the strict rules for the
execution of a testament which have been described. Neither the legal
number of witnesses, nor the observance of the other rules which have
been stated, is necessary to give force to their wills, provided, that
is to say, that they are made by them while on actual service; this
last qualification being a new though wise one introduced by our
constitution. Thus, in whatever mode a soldier's last wishes are
declared, whether in writing or orally, this is a binding will, by force
of his mere intention. At times, however, when they are not employed
on actual service, but are living at home or elsewhere, they are not
allowed to claim this privilege: they may make a will, even though they
be sons in power, in virtue of their service, but they must observe the
ordinary rules, and are bound by the forms which we described above as
requisite in the execution of wills of civilians.
1 Respecting the testaments of soldiers the Emperor Trajan sent a
rescript to Statilius Severus in the following terms: 'The privilege
allowed to soldiers of having their wills upheld, in whatever manner
they are made, must be understood to be limited by the necessity of
first proving that a will has been made at all; for a will can be made
without writing even by civilians. Accordingly, with reference to the
inheritance which is the subject of the action before you, if it can be
shown that the soldier who left it, did in the presence of witnesses,
collected expressly for this purpose, declare orally who he wished to be
his heir, and on what slaves he wished to confer liberty, it may well
be maintained that in this way he made an unwritten testament, and his
wishes therein declared ought to be carried out. But if, as is so common
in ordinary conversation, he said to some one, I make you my heir, or, I
leave you all my property, such expressions cannot be held to amount to
a testament, and the interest of the very soldiers, who are privileged
in the way described, is the principal ground for rejecting such a
precedent. For if it were admitted, it would be easy, after a soldier's
death, to procure witnesses to affirm that they had heard him say he
left his property to any one they pleased to name, and in this way it
would be impossible to discover the true intentions of the deceased.'
2 A soldier too may make a will though dumb and deaf.
3 This privilege, however, which we have said soldiers enjoy, is allowed
them by imperial constitutions only while they are engaged on actual
service, and in camp life. Consequently, if veterans wish to make a will
after their discharge, or if soldiers actually serving wish to do this
away from camp, they must observe the forms prescribed for all
citizens by the general law; and a testament executed in camp without
formalities, that is to say, not according to the form prescribed by
law, will remain valid only for one year after the testator's discharge.
Supposing then that the testator died within a year, but that a
condition, subject to which the heir was instituted, was not fulfilled
within the year, would it be feigned that the testator was a soldier at
the date of his decease, and the testament consequently upheld? and this
question we answer in the affirmative.
4 If a man, before going on actual service, makes an invalid will,
and then during a campaign opens it, and adds some new disposition, or
cancels one already made, or in some other way makes it clear that he
wishes it to be his testament, it must be pronounced valid, as being, in
fact, a new will made by the man as a soldier.
5 Finally, if a soldier is adrogated, or, being a son in power, is
emancipated, his previously executed will remains good by the fiction
of a new expression of his wishes as a soldier, and is not deemed to be
avoided by his loss of status.
6 It is, however, to be observed that earlier statutes and imperial
constitutions allowed to children in power in certain cases a civil
peculium after the analogy of the military peculium, which for that
reason was called quasimilitary, and of which some of them were
permitted to dispose by will even while under power. By an extension
of this principle our constitution has allowed all persons who have a
peculium of this special kind to dispose of it by will, though subject
to the ordinary forms of law. By a perusal of this constitution the
whole law relating to this privilege may be ascertained.
TITLE XII. OF PERSONS INCAPABLE OF MAKING WILLS
Certain persons are incapable of making a lawful will. For instance,
those in the power of others are so absolutely incapable that they
cannot make a testament even with the permission of their parents, with
the exception of those whom we have enumerated, and particularly of
children in power who are soldiers, and who are permitted by imperial
constitution to dispose by will of all they may acquire while on actual
service. This was allowed at first only to soldiers on active service,
by the authority of the Emperors Augustus and Nerva, and of the
illustrious Emperor Trajan; afterwards, it was extended by an enactment
of the Emperor Hadrian to veterans, that is, soldiers who had received
their discharge. Accordingly, if a son in power makes a will of his
military peculium, it will belong to the person whom he institutes
as heir: but if he dies intestate, leaving no children or brothers
surviving him, it will go to the parent in whose power he is, according
to the ordinary rule. From this it can be understood that a parent
has no power to deprive a son in his power of what he has acquired on
service, nor can the parent's creditors sell or otherwise touch it; and
when the parent dies it is not shared between the soldier's son and
his brothers, but belongs to him alone, although by the civil law the
peculium of a person in power is always reckoned as part of the property
of the parent, exactly as that of a slave is deemed part of the property
of his master, except of course such property of the son as by imperial
constitutions, and especially our own, the parent is unable to acquire
in absolute ownership. Consequently, if a son in power, not having a
military or quasimilitary peculium, makes a will, it is invalid, even
though he is released from power before his decease.
1 Again, a person under the age of puberty is incapable of making a
will, because he has no judgement, and so too is a lunatic, because he
has lost his reason; and it is immaterial that the one reaches the age
of puberty, and the other recovers his faculties, before his decease.
If, however, a lunatic makes a will during a lucid interval, the will
is deemed valid, and one is certainly valid which he made before he
lost his reason: for subsequent insanity never avoids a duly executed
testament or any other disposition validly made.
2 So too a spendthrift, who is interdicted from the management of his
own affairs, is incapable of making a valid will, though one made by him
before being so interdicted holds good.
3 The deaf, again, and the dumb cannot always make a will, though here
we are speaking not of persons merely hard of hearing, but of total
deafness, and similarly by a dumb person is meant one totally dumb, and
not one who merely speaks with difficulty; for it often happens that
even men of culture and learning by some cause or other lose the
faculties of speech and hearing. Hence relief has been afforded them by
our constitution, which enables them, in certain cases and in certain
modes therein specified, to make a will and other lawful dispositions.
If a man, after making his will, becomes deaf or dumb through ill health
or any other cause, it remains valid notwithstanding.
4 A blind man cannot make a will, except by observing the forms
introduced by a law of our imperial father Justin.
5 A will made by a prisoner while in captivity with the enemy is
invalid, even though he subsequently returns. One made, however,
while he was in his own state is valid, if he returns, by the law of
postliminium; if he dies in captivity it is valid by the lex Cornelia.
TITLE XIII. OF THE DISINHERISON OF CHILDREN
The law, however, is not completely satisfied by the observance of the
rules hereinbefore explained. A testator who has a son in his power must
take care either to institute him heir, or to specially disinherit him,
for passing him over in silence avoids the will; and this rule is so
strict, that even if the son die in the lifetime of the father no heir
can take under the will, because of its original nullity. As regards
daughters and other descendants of either sex by the male line, the
ancients did not observe this rule in all its strictness; for if these
persons were neither instituted nor disinherited, the will was not
avoided, but they were entitled to come in with the instituted heirs,
and to take a certain portion of the inheritance. And these persons the
ascendant was not obliged to specially disinherit; he could disinherit
them collectively by a general clause.
1 Special disinherison may be expressed in these terms--'Be Titius
my son disinherited,' or in these, 'Be my son disinherited,' without
inserting the name, supposing there is no other son. Children born
after the making of the will must also be either instituted heirs or
disinherited, and in this respect are similarly privileged, that if a
son or any other family heir, male or female, born after the making of
the will, be passed over in silence, the will, though originally valid,
is invalidated by the subsequent birth of the child, and so becomes
completely void. Consequently, if the woman from whom a child was
expected to have an abortive delivery, there is nothing to prevent the
instituted heirs from taking the inheritance. It was immaterial
whether the female family heirs born after the making of the will were
disinherited specially or by a general clause, but if the latter mode be
adopted, some legacy must be left them in order that they may not seem
to have been passed over merely through inadvertence: but male
family heirs born after the making of the will, sons and other lineal
descendants, are held not to be properly disinherited unless they are
disinherited specially, thus: 'Be any son that shall be born to me
disinherited.'
2 With children born after the making of the will are classed children
who succeed to the place of a family heir, and who thus, by an event
analogous to subsequent birth, become family heirs to an ancestor.
For instance, if a testator have a son, and by him a grandson or
granddaughter in his power, the son alone, being nearer in degree,
has the right of a family heir, although the grandchildren are in the
testator's power equally with him. But if the son die in the testator's
lifetime, or is in some other way released from his power, the
grandson and granddaughter succeed to his place, and thus, by a kind of
subsequent birth, acquire the rights of family heirs. To prevent this
subsequent avoidance of one's will, grandchildren by a son must be
either instituted heirs or disinherited, exactly as, to secure the
original validity of a testament, a son must be either instituted or
specially disinherited; for if the son die in the testator's lifetime,
the grandson and granddaughter take his place, and avoid the will just
as if they were children born after its execution. And this disinherison
was first allowed by the lex Iunia Vallaea, which explains the form
which is to be used, and which resembles that employed in disinheriting
family heirs born after the making of a will.
3 It is not necessary, by the civil law, to either institute or
disinherit emancipated children, because they are not family heirs. But
the praetor requires all, females as well as males, unless instituted,
to be disinherited, males specially, females collectively; and if they
are neither appointed heirs nor disinherited as described, the praetor
promises them possession of goods against the will.
4 Adopted children, so long as they are in the power of their adoptive
father, are in precisely the same legal position as children born
in lawful wedlock; consequently they must be either instituted or
disinherited according to the rules stated for the disinherison of
natural children. When, however, they have been emancipated by their
adoptive father, they are no longer regarded as his children either
by the civil law or by the praetor's edict. Conversely, in relation to
their natural father, so long as they remain in the adoptive family they
are strangers, so that he need neither institute nor disinherit them:
but when emancipated by their adoptive father, they have the same rights
in the succession to their natural father as they would have had if it
had been he by whom they were emancipated. Such was the law introduced
by our predecessors.
5 Deeming, however, that between the sexes, to each of which nature
assigns an equal share in perpetuating the race of man, there is in this
matter no real ground of distinction, and marking that, by the ancient
statute of the Twelve Tables, all were called equally to the succession
on the death of their ancestor intestate (which precedent the praetors
also seem to have subsequently followed), we have by our constitution
introduced a simple system of the same kind, applying uniformly to sons,
daughters, and other descendants by the male line, whether born before
or after the making of the will. This requires that all children,
whether family heirs or emancipated, shall be specially disinherited,
and declares that their pretermission shall have the effect of avoiding
the will of their parent, and depriving the instituted heirs of the
inheritance, no less than the pretermission of children who are family
heirs or who have been emancipated, whether already born, or born after,
though conceived before the making of the will. In respect of adoptive
children we have introduced a distinction, which is explained in our
constitution on adoptions.
6 If a soldier engaged on actual service makes a testament without
specially disinheriting his children, whether born before or after the
making of the will, but simply passing over them in silence, though he
knows that he has children, it is provided by imperial constitutions
that his silent pretermission of them shall be equivalent to special
disinherison.
7 A mother or maternal grandfather is not bound to institute her or his
children or grandchildren; they may simply omit them, for silence on the
part of a mother, or of a maternal grandfather or other ascendant, has
the same effect as actual disinherison by a father. For neither by the
civil law, nor by that part of the praetor's edict in which he promises
children who are passed over possession of goods against the will, is
a mother obliged to disinherit her son or daughter if she does not
institute them heirs, or a maternal grandfather to be equally precise
with reference to grandchildren by a daughter: though such children and
grandchildren, if omitted, have another remedy, which will shortly be
explained.
TITLE XIV. OF THE INSTITUTION OF THE HEIR
A man may institute as his heirs either free men or slaves, and either
his own slaves or those of another man. If he wished to institute
his own slave it was formerly necessary, according to the more common
opinion, that he should expressly give him his liberty in the will:
but now it is lawful, by our constitution, to institute one's own slave
without this express manumission--a change not due to any spirit of
innovation, but to a sense of equity, and one whose principle was
approved by Atilicinus, as it is stated by Seius in his books on
Masurius Sabinus and on Plautius. Among a testator's own slaves is to be
reckoned one of whom he is bare owner, the usufruct being vested in some
other person. There is, however, one case in which the institution of a
slave by his mistress is void, even though freedom be given him in
the will, as is provided by a constitution of the Emperors Severus and
Antoninus in these terms: 'Reason demands that no slave, accused of
criminal intercourse with his mistress, shall be capable of being
manumitted, before his sentence is pronounced, by the will of the woman
who is accused of participating in his guilt: accordingly if he be
instituted heir by that mistress, the institution is void.' Among 'other
persons' slaves' is reckoned one in whom the testator has a usufruct.
1 If a slave is instituted heir by his own master, and continues in that
condition until his master's decease, he becomes by the will both free,
and necessary heir. But if the testator himself manumits him in his
lifetime, he may use his own discretion about acceptance; for he is not
a necessary heir, because, though he is named heir to the testament, it
was not by that testament that he became free. If he has been alienated,
he must have the order of his new master to accept, and then his master
becomes heir through him, while he personally becomes neither heir nor
free, even though his freedom was expressly given him in the testament,
because by alienating him his former master is presumed to have
renounced the intention of enfranchising him. When another person's
slave is instituted heir, if he continues in the same condition he
must have the order of his master to accept; if alienated by him in
the testator's lifetime, or after the testator's death but before
acceptance, he must have the order of the alienee to accept; finally, if
manumitted in the testator's lifetime, or after the testator's death but
before acceptance, he may accept or not at his own discretion.
2 A slave who does not belong to the testator may be instituted heir
even after his master's decease, because slaves who belong to an
inheritance are capable of being instituted or made legatees; for an
inheritance not yet accepted represents not the future heir but the
person deceased. Similarly, the slave of a child conceived but not yet
born may be instituted heir.
3 If a slave belonging to two or more joint owners, both or all of whom
are legally capable of being made heirs or legatees, is instituted heir
by a stranger, he acquires the inheritance for each and all of the joint
owners by whose orders he accepts it in proportion to the respective
shares in which they own him.
4 A testator may institute either a single heir, or as many as he
pleases.
5 An inheritance is usually divided into twelve ounces, and is denoted
in the aggregate by the term as, and each fraction of this aggregate,
ranging from the ounce up to the as or pound, has its specific name, as
follows: sextans (1/6), quadrans (1/4), triens (1/3), quincunx (5/12),
semis (1/2), septunx (7/12), bes (2/3), dodrans (3/4), dextans (5/6),
deunx (11/12), and as it is not necessary, however, that there
should always be twelve ounces, for for the purposes of testamentary
distribution an as may consist of as many ounces as the testator
pleases; for instance, if a testator institutes only a single heir,
but declares that he is to be heir ex semisse, or to one half of the
inheritance, this half will really be the whole, for no one can die
partly testate and partly intestate, except soldiers, in the carrying
out of whose wills the intention is the only thing regarded. Conversely,
a testator may divide his inheritance into as large a number of ounces
as he pleases.
6 If more heirs than one are instituted, it is unnecessary for the
testator to assign a specific share in the inheritance to each, unless
he intends that they shall not take in equal portions; for it is obvious
that if no shares are specified they divide the inheritance equally
between them. Supposing, however, that specific shares are assigned to
all the instituted heirs except one, who is left without any express
share at all, this last heir will be entitled to any fraction of the as
which has not been disposed of; and if there are two or more heirs
to whom no specific shares have been assigned, they will divide this
unassigned fraction equally between them. Finally, if the whole as has
been assigned in specific shares to some of the heirs, the one or more
who have no specific shares take half of the inheritance, while the
other half is divided among the rest according to the shares assigned to
them; and it is immaterial whether the heir who has no specified share
come first or last in the institution, or occupies some intermediate
place; for such share is presumed to be given to him as is not in some
other way disposed of.
7 Let us now see how the law stands if some part remains undisposed of,
and yet each heir has his share assigned to him--if, for instance
there are three heirs instituted, and each is assigned a quarter of the
inheritance. It is evident that in this case the part undisposed of will
go to them in proportion to the share each has assigned to him by
the will, and it will be exactly as if they had each been originally
instituted to a third. Conversely, if each heir is given so large a
fraction that the as will be exceeded, each must suffer a proportionate
abatement; thus if four heirs are instituted, and to each is assigned
a third of the inheritance, it will be the same as if each had been
originally instituted to a quarter.
8 If more than twelve ounces are distributed among some of the heirs
only, one being left without a specific share, he will have what is
wanting to complete the second as; and the same will be done if more
than twenty-four ounces are distributed, leaving him shareless; but all
these ideal sums are afterwards reduced to the single as, whatever be
the number of ounces they comprise.
9 The institution of the heir may be either absolute or conditional, but
no heir can be instituted from, or up to, some definite date, as, for
instance, in the following form--'be so and so my heir after five years
from my decease,' or 'after the calends of such a month,' or 'up to and
until such calends'; for a time limitation in a will is considered a
superfluity, and an heir instituted subject to such a time limitation is
treated as heir absolutely.
10 If the institution of an heir, a legacy, a fiduciary bequest, or a
testamentary manumission is made to depend on an impossible condition,
the condition is deemed unwritten, and the disposition absolute.
11 If an institution is made to depend on two or more conditions,
conjunctively expressed,--as, for instance, 'if this and that shall be
done'--all the conditions must be satisfied: if they are expressed
in the alternative, or disjunctively--as 'if this or that shall be
done'--it is enough if one of them alone is satisfied.
12 A testator may institute as his heir a person whom he has never seen,
for instance, nephews who have been born abroad and are unknown to him:
for want of this knowledge does not invalidate the institution.
TITLE XV. OF ORDINARY SUBSTITUTION
A testator may institute his heirs, if he pleases, in two or more
degrees, as, for instance, in the following form: 'If A shall not be
my heir, then let B be my heir'; and in this way he can make as many
substitutions as he likes, naming in the last place one of his own
slaves as necessary heir, in default of all others taking.
1 Several may be substituted in place of one, or one in place of
several, or to each heir may be substituted a new and distinct person,
or, finally, the instituted heirs may be substituted reciprocally in
place of one another.
2 If heirs who are instituted in equal shares are reciprocally
substituted to one another, and the shares which they are to have in
the substitution are not specified, it is presumed (as was settled by
a rescript of the Emperor Pius) that the testator intended them to take
the same shares in the substitution as they took directly under the
will.
3 If a third person is substituted to one heir who himself is
substituted to his coheir, the Emperors Severus and Antoninus decided
by rescript that this third person is entitled to the shares of both
without distinction.
4 If a testator institutes another man's slave, supposing him to be an
independent person, and substitutes Maevius in his place to meet the
case of his not taking the inheritance, then, if the slave accepts
by the order of his master, Maevius is entitled to a half. For, when
applied to a person whom the testator knows to be in the power of
another, the words 'if he shall not be my heir' are taken to mean 'if
he shall neither be heir himself nor cause another to be heir'; but when
applied to a person whom the testator supposes to be independent, they
mean 'if he shall not acquire the inheritance either for himself, or for
that person to whose power he shall subsequently become subject,' and
this was decided by Tiberius Caesar in the case of his slave Parthenius.
TITLE XVI. OF PUPILLARY SUBSTITUTION
To children below the age of puberty and in the power of the testator,
not only can such a substitute as we have described be appointed, that
is, one who shall take on their failing to inherit, but also one who
shall be their heir if, after inheriting, they die within the age of
puberty; and this may be done in the following terms, 'Be my son Titius
my heir; and if he does not become my heir, or, after becoming my heir,
die before becoming his own master (that is, before reaching puberty),
then be Seius my heir.' In which case, if the son fails to inherit,
the substitute is the heir of the testator; but if the son, after
inheriting, dies within the age of puberty, he is the heir of the son.
For it is a rule of customary law, that when our children are too young
to make wills for themselves, their parents may make them for them.
1 The reason of this rule has induced us to assert in our Code a
constitution, providing that if a testator has children, grandchildren,
or greatgrandchildren who are lunatics or idiots, he may, after the
analogy of pupillary substitution, substitute certain definite persons
to them, whatever their sex or the nearness of their relationship to
him, and even though they have reached the age of puberty; provided
always that on their recovering their faculties such substitution shall
at once become void, exactly as pupillary substitution proper ceases to
have any operation after the pupil has reached puberty.
2 Thus, in pupillary substitution effected in the form described, there
are, so to speak, two wills, the father's and the son's, just as if the
son had personally instituted an heir to himself; or rather, there is
one will dealing with two distinct matters, that is, with two distinct
inheritances.
3 If a testator be apprehensive that, after his own death, his son,
while still a pupil, may be exposed to the danger of foul play, because
another person is openly substituted to him, he ought to make the
ordinary substitution openly, and in the earlier part of the testament,
and write the other substitution, wherein a man is named heir on the
succession and death of the pupil, separately on the lower part of the
will; and this lower part he should tie with a separate cord and fasten
with a separate seal, and direct in the earlier part of the will that it
shall not be opened in the lifetime of the son before he attains the age
of puberty. Of course a substitution to a son under the age of puberty
is none the less valid because it is a integral part of the very will
in which the testator has instituted him his heir, though such an open
substitution may expose the pupil to the danger of foul play.
4 Not only when we leave our inheritance to children under the age
of puberty can we make such a substitution, that if they accept the
inheritance, and then die under that age, the substitute is their heir,
but we can do it when we disinherit them, so that whatever the pupil
acquires by way of inheritance, legacy or gift from his relatives or
friends, will pass to the substitute. What has been said of
substitution to children below the age of puberty, whether instituted or
disinherited, is true also of substitution to afterborn children.
5 In no case, however, may a man make a will for his children unless
he makes one also for himself; for the will of the pupil is but a
complementary part of the father's own testament; accordingly, if the
latter is void, the former will be void also.
6 Substitution may be made either to each child separately, or only to
such one of them as shall last die under the age of puberty. The first
is the proper plan, if the testator's intention is that none of them
shall die intestate: the second, if he wishes that, as among them, the
order of succession prescribed by the Twelve Tables shall be strictly
preserved.
7 The person substituted in the place of a child under the age of
puberty may be either named individually--for instance, Titius--or
generally prescribed, as by the words 'whoever shall be my heir'; in
which latter case, on the child dying under the age of puberty,
those are called to the inheritance by the substitution who have been
instituted heirs and have accepted, their shares in the substitution
being proportionate to the shares in which they succeeded the father.
8 This kind of substitution may be made to males up to the age of
fourteen, and to females up to that of twelve years; when this age is
once passed, the substitution becomes void.
9 To a stranger, or a child above the age of puberty whom a man has
instituted heir, he cannot appoint a substitute to succeed him if he
take and die within a certain time: he has only the power to bind him by
a trust to convey the inheritance to another either wholly or in part;
the law relating to which subject will be explained in its proper place.
TITLE XVII. OF THE MODES IN WHICH WILLS BECOME VOID
A duly executed testament remains valid until either revoked or
rescinded.
1 A will is revoked when, though the civil condition of the testator
remains unaltered, the legal force of the will itself is destroyed, as
happens when, after making his will, a man adopts as his son either an
independent person, in which case the adoption is effected by imperial
decree, or a person already in power, when it is done through the agency
of the praetor according to our constitution. In both these cases the
will is revoked, precisely as it would be by the subsequent birth of a
family heir.
2 Again, a subsequent will duly executed is a revocation of a prior
will, and it makes no difference whether an heir ever actually takes
under it or not; the only question is whether one might conceivably have
done so. Accordingly, whether the person instituted declines to be heir,
or dies in the lifetime of the testator, or after his death but before
accepting the inheritance, or is excluded by failure of the condition
under which he was instituted--in all the cases the testator dies
intestate; for the earlier will is revoked by the later one, and the
later one is inoperative, as no heir takes under it.
3 If, after duly making one will, a man executes a second one which is
equally valid, the Emperors Severus and Antoninus decided by rescript
that the first is revoked by the second, even though the heir instituted
in the second is instituted to certain things only. The terms of this
enactment we have ordered to be inserted here, because it contains
another provision. 'The Emperors Severus and Antoninus to Cocceius
Campanus. A second will, although the heir named therein be instituted
to certain things only, is just as valid as if no mention of the things
had been made: but the heir is bound to content himself with the things
given him, or with such further portion of the inheritance as will make
up the fourth part to which he is entitled under the lex Falcidia, and
(subject thereto) to transfer the inheritance to the persons instituted
in the earlier will: for the words inserted in the later will
undoubtedly contain the expression of a wish that the earlier one shall
remain valid.' This accordingly is a mode in which a testament may be
revoked.
4 There is another event by which a will duly executed may be
invalidated, namely, the testator's undergoing a loss of status: how
this may happen was explained in the preceding Book.
5 In this case the will may be said to be rescinded, though both those
that are revoked, and those that are not duly executed, may be said to
become or be rescinded; and similarly too those which are duly executed
but subsequently rescinded by loss of status may be said to be revoked.
However, as it is convenient that different grounds of invalidity should
have different names to distinguish them, we say that some wills are
unduly executed from the commencement, while others which are duly
executed are either revoked or rescinded.
6 Wills, however, which, though duly executed, are subsequently
rescinded by the testator's undergoing loss of status are not altogether
inoperative: for if the seals of seven witnesses are attached, the
instituted heir is entitled to demand possession in accordance with the
will, if only the testator were a citizen of Rome and independent at
the time of his decease; but if the cause of the rescission was
the testator's subsequent loss of citizenship or of freedom, or his
adoption, and he dies an alien, or slave, or subject to his adoptive
father's power, the instituted heir is barred from demanding possession
in accordance with the will.
7 The mere desire of a testator that a will which he has executed shall
no longer have any validity is not, by itself, sufficient to avoid
it; so that, even if he begins to make a later will, which he does not
complete because he either dies first, or changes his mind, the first
will remains good; it being provided in an address of the Emperor
Pertinax to the Senate that one testament which is duly executed is not
revoked by a later one which is not duly and completely executed; for an
incomplete will is undoubtedly null.
8 In the same address the Emperor declared that he would accept no
inheritance to which he was made heir on account of a suit between the
testator and some third person, nor would he uphold a will in which he
was instituted in order to screen some legal defect in its execution,
or accept an inheritance to which he was instituted merely by word of
mouth, or take any testamentary benefit under a document defective in
point of law. And there are numerous rescripts of the Emperors Severus
and Antoninus to the same purpose: 'for though,' they say, 'the laws do
not bind us, yet we live in obedience to them.'
TITLE XVIII. OF AN UNDUTEOUS WILL
Inasmuch as the disinherison or omission by parents of their children
has generally no good reason, those children who complain that they have
been wrongfully disinherited or passed over have been allowed to bring
an action impeaching the will as unduteous, under the pretext that the
testator was of unsound mind at the time of its execution. This does
not mean that he was really insane, but that the will, though legally
executed, bears no mark of that affection to which a child is entitled
from a parent: for if a testator is really insane, his will is void.
1 Parents may impeach the wills of their children as unduteous, as well
as children those of their parents. Brothers and sisters of the testator
are by imperial constitutions preferred to infamous persons who are
instituted to their exclusion, so that it is in these cases only that
they can bring this action. Persons related to the testator in a further
degree than as brothers or sisters can in no case bring the action, or
at any rate succeed in it when brought.
2 Children fully adopted, in accordance with the distinction drawn in
our constitution, can bring this action as well as natural children, but
neither can do so unless there is no other mode in which they can obtain
the property of the deceased: for those who can obtain the inheritance
wholly or in part by any other title are barred from attacking a will as
unduteous. Afterborn children too can employ this remedy, if they can by
no other means recover the inheritance.
3 That they may bring the action must be understood to mean, that
they may bring it only if absolutely nothing has been left them by the
testator in his will: a restriction introduced by our constitution out
of respect for a father's natural rights. If, however, a part of the
inheritance, however small, or even a single thing is left them, the
will cannot be impeached, but the heir must, if necessary, make up what
is given them to a fourth of what they would have taken had the testator
died intestate, even though the will does not direct that this fourth is
to be made up by the assessment of an honest and reliable man.
4 If a guardian accepts, under his own father's will, a legacy on behalf
of the pupil under his charge, the father having left nothing to him
personally, he is in no way debarred from impeaching his father's will
as unduteous on his own account.
5 On the other hand, if he impeaches the will of his pupil's father on
the pupil's behalf, because nothing has been left to the latter, and is
defeated in the action, he does not lose a legacy given in the same will
to himself personally.
6 Accordingly, that a person may be barred from the action impeaching
the will, it is requisite that he should have a fourth of what he would
have taken on intestacy, either as heir, legatee direct or fiduciary,
donee in contemplation of death, by gift from the testator in his
lifetime (though gift of this latter kind bars the action only if made
under any of the circumstances mentioned in our constitution) or in any
of the other modes stated in the imperial legislation.
7 In what we have said of the fourth we must be understood to mean that
whether there be one person only, or more than one, who can impeach the
will as unduteous, onefourth of the whole inheritance may be given them,
to be divided among them all proportionately, that is to say, to each
person a fourth of what he would have had if the testator had died
intestate.
TITLE XIX. OF THE KINDS AND DIFFERENCES BETWEEN HEIRS
Heirs are of three kinds, that is to say, they are either necessary,
family heirs and necessary, or external.
1 A necessary heir is a slave of the testator, whom he institutes as
heir: and he is so named because, willing or unwilling, and without
any alternative, he becomes free and necessary heir immediately on the
testator's decease. For when a man's affairs are embarrassed, it is
common for one of his slaves to be instituted in his will, either in
the first place, or as a substitute in the second or any later place, so
that, if the creditors are not paid in full, the heir may be insolvent
rather than the testator, and his property, rather than the testator's,
may be sold by the creditors and divided among them. To balance this
disadvantage he has this advantage, that his acquisitions after the
testator's decease are for his own sole benefit; and although the estate
of the deceased is insufficient to pay the creditors in full, the heir's
subsequent acquisitions are never on that account liable to a second
sale.
2 Heirs who are both family heirs and necessary are such as a son or a
daughter, a grandchild by a son, and further similar lineal descendants,
provided that they are in the ancestor's power at the time of his
decease. To make a grandson or granddaughter a family heir it is,
however, not sufficient for them to be in the grandfather's power at
the moment of his decease: it is further requisite that their own father
shall, in the lifetime of the grandfather, have ceased to be the family
heir himself, whether by death or by any other mode of release from
power: for by this event the grandson and granddaughter succeed to the
place of their father. They are called family heirs, because they are
heirs of the house, and even in the lifetime of the parent are to a
certain extent deemed owners of the inheritance: wherefore in intestacy
the first right of succession belongs to the children. They are called
necessary heirs because they have no alternative, but, willing or
unwilling, both where there is a will and where there is not, they
become heirs. The praetor, however, permits them, if they wish, to
abstain from the inheritance, and leave the parent to become insolvent
rather than themselves.
3 Those who are not subject to the testator's power are called external
heirs. Thus children of ours who are not in our power, if instituted
heirs by us, are deemed external heirs; and children instituted by their
mother belong to this class, because women never have children in
their power. Slaves instituted heirs by their masters, and manumitted
subsequently to the execution of the will, belong to the same class.
4 It is necessary that external heirs should have testamentary capacity,
whether it is an independent person, or some one in his power, who is
instituted: and this capacity is required at two times; at the same time
of the making of the will, when, without it, the institution would be
void; and at the same time of the testator's decease, when, without
it, the institution would have no effect. Moreover, the instituted
heir ought to have this capacity also at the time when he accepts
the inheritance, whether he is instituted absolutely or subject to a
condition; and indeed it is especially at this time that his capacity to
take ought to be looked to. If, however, the instituted heir undergoes
a loss of status in the interval between the making of the will and
the testator's decease, or the satisfaction of the condition subject to
which he was instituted, he is not thereby prejudiced: for, as we
said, there are only three points of time which have to be regarded.
Testamentary capacity thus does not mean merely capacity to make a will;
it also means capacity to take for oneself, or for the father or master
in whose power one is, under the will of another person: and this latter
kind of testamentary capacity is quite independent of the capacity to
make a will oneself. Accordingly, even lunatics, deaf persons, afterborn
children, infants, children in power, and other persons' slaves are said
to have testamentary capacity; for though they cannot make a valid will,
they can acquire for themselves or for another under a will made by
someone else.
5 External heirs have the privilege of deliberating whether they will
accept or disclaim an inheritance. But if a person who is entitled
to disclaim interferes with the inheritance, or if one who has the
privilege of deliberation accepts it, he no longer has the power of
relinquishing it, unless he is a minor under the age of twentyfive
years, for minors obtain relief from the praetor when they incautiously
accept a disadvantageous inheritance, as well as when they take any
other injudicious step.
6 It is, however, to be observed that the Emperor Hadrian once relieved
even a person who had attained his majority, when, after his accepting
the inheritance, a great debt, unknown at the time of acceptance, had
come to light. This was but the bestowal of an especial favour on
a single individual; the Emperor Gordian subsequently extended the
privilege, but only to soldiers, to whom it was granted as a class. We,
however, in our benevolence have placed this benefit within the reach of
all our subjects, and drafted a constitution as just as it is splendid,
under which, if heirs will but observe its terms, they can accept an
inheritance without being liable to creditors and legatees beyond the
value of the property. Thus so far as their liability is concerned there
is no need for them to deliberate on acceptance, unless they fail to
observe the procedure of our constitution, and prefer deliberation, by
which they will remain liable to all the risks of acceptance under the
older law.
7 An external heir, whether his right accrue to him under a will or
under the civil law of intestate succession, can take the inheritance
either by acting as heir, or by the mere intention to accept. By acting
as heir is mean, for instance, using things belonging to the inheritance
as one's own, or selling them, or cultivating or giving leases of the
deceased's estates, provided only one expresses in any way whatsoever,
by deed or word, one's intention to accept the inheritance, so long as
one knows that the person with whose property one is thus dealing has
died testate or intestate, and that one is that person's heir. To act as
heir, in fact, is to act as owner, and the ancients often used the term
'heir' as equivalent to the term 'owner.' And just as the mere intention
to accept makes an external heir heir, so too the mere determination not
to accept bars him from the inheritance. Nothing prevents a person who
is born deaf or dumb, or who becomes so after birth, from acting as heir
and thus acquiring the inheritance, provided only he knows what he is
doing.
TITLE XX. OF LEGACIES
Let us now examine legacies:--a kind of title which seems foreign to
the matter at hand, for we are expounding titles whereby aggregates of
rights are acquired; but as we have treated in full of wills and heirs
appointed by will, it was natural in close connexion therewith to
consider this mode of acquisition.
1 Now a legacy is a kind of gift left by a person deceased;
2 and formerly they were of four kinds, namely, legacy by vindication,
by condemnation, by permission, and by preception, to each of which a
definite form of words was appropriated by which it was known, and which
served to distinguish it from legacies of the other kinds. Solemn
forms of words of this sort, however, have been altogether abolished by
imperial constitutions; and we, desiring to give greater effect to the
wishes of deceased persons, and to interpret their expressions with
reference rather to those wishes than to their strict literal meaning,
have issued a constitution, composed after great reflection, enacting
that in future there shall be but one kind of legacy, and that, whatever
be the terms in which the bequest is couched, the legatee may sue for
it no less by real or hypothecary than by personal action. How carefully
and wisely this constitution is worded may be ascertained by a perusal
of its contents.
3 We have determined, however, to go even beyond this enactment; for,
observing that the ancients subjected legacies to strict rules, while
the rules which they applied to fiduciary bequests, as springing more
directly from the deceased person's wishes, were more liberal, we have
deemed it necessary to assimilate the former completely to the latter,
so that any future features in which legacies are inferior to fiduciary
bequests may be supplied to them from the latter, and the latter
themselves may in future possess any superiority which has hitherto
been enjoyed by legacies only. In order, however, to avoid perplexing
students in their first essays in the law by discussing these two forms
of bequests together, we have thought it worth while to treat them
separately, dealing first with legacies, and then with fiduciary
bequests, so that the reader, having first learnt their respective
natures in a separate treatment, may, when his legal education is more
advanced, be able easily to comprehend their treatment in combination.
4 A legacy may be given not only of things belonging to the testator
or heir, but also of things belonging to a third person, the heir being
bound by the will to buy and deliver them to the legatee, or to give him
their value if the owner is unwilling to sell them. If the thing given
be one of those of which private ownership is impossible, such, for
instance, as the Campus Martius, a basilica, a church, or a thing
devoted to public use, not even its value can be claimed, for the legacy
is void. In saying that a thing belonging to a third person may be given
as a legacy we must be understood to mean that this may be done if the
deceased knew that it belonged to a third person, and not if he was
ignorant of this: for perhaps he would never have given the legacy if
he had known that the thing belonged neither to him nor to the heir, and
there is a rescript of the Emperor Pius to this effect. It is also the
better opinion that the plaintiff, that is the legatee, must prove that
the deceased knew he was giving as a legacy a thing which was not his
own, rather than that the heir must prove the contradictory: for the
general rule of law is that the burden of proof lies on the plaintiff.
5 If the thing which a testator bequests is in pledge to a creditor,
the heir is obliged to redeem it, subject to the same distinction as has
been drawn with reference to a legacy of a thing not belonging to
the testator; that is to say, the heir is bound to redeem only if the
deceased knew the thing to be in pledge: and the Emperors Severus and
Antoninus have decided this by rescript. If, however, the deceased
expresses his intention that the legatee should redeem the thing
himself, the heir is under no obligation to do it for him.
6 If a legacy is given of a thing belonging to another person, and the
legatee becomes its owner during the testator's lifetime by purchase,
he can obtain its value from the heir by action on the will: but if he
gives no consideration for it, that is to say, gets it by way of gift or
by some similar title, he cannot sue; for it is settled law that where
a man has already got a thing, giving no consideration in return, he
cannot get its value by a second title of the same kind. Accordingly, if
a man is entitled to claim a thing under each of two distinct wills, it
is material whether he gets the thing, or merely its value, under the
earlier one: for if he gets the thing itself, he cannot sue under
the second will, because he already has the thing without giving any
consideration, whereas he has a good right of action if he has merely
got its value.
7 A thing which does not yet exist, but will exist, may be validly
bequeathed:--for instance, the produce of such and such land, or the
child of such and such female slave.
8 If the same thing is given as a legacy to two persons, whether jointly
or severally, and both claim it, each is entitled to only a half; if one
of them does not claim it, because either he does not care for it, or
has died in the testator's lifetime, or for some other reason, the whole
goes to his colegatee. A joint legacy is given in such words as the
following: 'I give and bequeath my slave Stichus to Titius and Seius': a
several legacy thus, 'I give and bequeath my slave Stichus to Titius: I
give and bequeath Stichus to Seius': and even if the testator says 'the
same slave Stichus' the legacy is still a several one.
9 If land be bequeathed which belongs to some one other than the
testator, and the intended legatee, after purchasing the bare ownership
therein, obtains the usufruct without consideration, and then sues under
the will, Julian says that this action for the land is well grounded,
because in a real action for land a usufruct is regarded merely as a
servitude; but it is part of the duty of the judge to deduct the value
of the usufruct from the sum which he directs to be paid as the value of
the land.
10 A legacy by which something already belonging to the legatee is given
him is void, for what is his own already cannot become more his own
than it is: and even though he alienates it before the testator's death,
neither it nor its value can be claimed.
11 If a testator bequeaths something belonging to him, but which he
thought belonged to another person, the legacy is good, for its validity
depends not on what he thought, but on the real facts of the case: and
it is clearly good if he thought it already belonged to the legatee,
because his expressed wish can thus be carried out.
12 If, after making his will, a testator alienates property which he has
therein given away as a legacy, Celsus is of opinion that the legatee
may still claim it unless the testator's intention was thereby to
revoke the bequest, and there is a rescript of the Emperors Severus
and Antoninus to this effect, as well as another which decides that
if, after making his will, a testator pledges land which he had therein
given as a legacy, the part which has not been alienated can in any case
be claimed, and the alienated part as well if the alienator's intention
was not to revoke the legacy.
13 If a man bequeaths to his debtor a discharge from his debt, the
legacy is good, and the testator's heir cannot sue either the debtor
himself, or his heir, or any one who occupies the position of heir to
him, and the debtor can even compel the testator's heir to formally
release him. Moreover, a testator can also forbid his heir to claim
payment of a debt before a certain time has elapsed.
14 Contrariwise, if a debtor leaves his creditor a legacy of what he
owes him, the legacy is void, if it includes no more than the debt,
for the creditor is thus in no way benefited; but if the debtor
unconditionally bequeaths a sum of money which the creditor cannot claim
until a definite date has arrived or a condition has been satisfied, the
legacy is good, because it confers on the creditor a right to earlier
payment. And, even if the day arrives, or the condition is satisfied,
during the testator's lifetime, Papinian decides, and rightly, that
the legacy is nevertheless a good one, because it was good when first
written; for the opinion that a legacy becomes void, because something
happens to deprive it of all material effect, is now rejected.
15 If a man leaves his wife a legacy of her dowry, the gift is good,
because the legacy is worth more than a mere right of action for the
dowry. If, however, he has never received the dowry which he bequeaths,
the Emperors Severus and Antoninus have decided by rescript that the
legacy is void, provided the general term 'dowry' is used, but good,
if in giving it to the wife a definite sum or thing is specified, or
described generally by reference to the dowry deed.
16 If a thing bequeathed perishes through no act of the heir, the loss
falls on the legatee: thus if a slave belonging to another person, who
is given in this way, is manumitted through no act of the heir, the
latter is not bound. If, however, the slave belongs to the heir, who
manumits him, Julian says that he is bound, and it is immaterial whether
he knew or not that the slave had been bequeathed away from him.
17 If a testator gives a legacy of female slaves along with their
offspring, the legatee can claim the latter even if the mothers are
dead, and so again if a legacy is given of ordinary slaves along with
their vicarii or subordinates, the latter can be claimed even if
the former are dead. But if the legacy be of a slave along with his
peculium, and the slave is dead, or has been manumitted or alienated,
the legacy of the peculium is extinguished; and similarly, if the legacy
be of land with everything upon it, or with all its instruments of
tillage, by the alienation of the land the legacy of the instruments of
tillage is extinguished.
18 If a flock be given as a legacy, which is subsequently reduced to a
single sheep, this single survivor can be claimed; and Julian says that
in a legacy of a flock are comprised sheep which are added to it after
the making of the will, a flock being but one aggregate composed of
distinct members, just as a house is but one aggregate composed of
distinct stones built together. So if the legacy consists of a house,
we hold that pillars or marbles added to it after the making of the will
pass under the bequest.
20 If a slave's peculium be given as a legacy, the legatee undoubtedly
profits by what is added to it, and is a loser by what is taken from
it, during the testator's lifetime. Whatever the slave acquires in
the interval between the testator's death and the acceptance of the
inheritance belongs, according to Julian, to the legatee, if that
legatee be the slave himself who is manumitted by the will, because a
legacy of this kind vests from the acceptance of the inheritance: but
if the legatee be a stranger, he is not entitled to such acquisitions,
unless they are made by means of the peculium itself. A slave manumitted
by a will is not entitled to his peculium unless it is expressly
bequeathed to him, though, if the master manumits him in his lifetime,
it is enough if it be not expressly taken from him, and to this effect
the Emperors Severus and Antoninus have decided by rescript: as also,
that a legacy of his peculium to a slave does not carry with it the
right to sue for money which he has expended on his master's account,
and that a legacy of a peculium may be inferred from directions in a
will that a slave is to be free so soon as he has made a statement of
his accounts and made up any balance, which may be against him, from his
peculium.
21 Incorporeal as well as corporeal things can be bequeathed: thus a man
can leave a legacy even of a debt which is owed to him, and the heir can
be compelled to transfer to the legatee his rights of action, unless the
testator has exacted payment in his lifetime, in which case the legacy
is extinguished. Again, such a legacy as the following is good: 'be my
heir bound to repair so and so's house, or to pay so and so's debts.'
22 If a legacy be a general one, as of a slave or some other thing not
specifically determined, the legatee is entitled to choose what slave,
or what thing, he will have, unless the testator has expressed a
contrary intention.
23 A legacy of selection, that is, when a testator directs the legatee
to select one from among his slaves, or any other class of things, was
held to be given subject to an implied condition that the legatee should
make the choice in person; so that if he died before doing so the legacy
did not pass to his heir. By our constitution, however, we have made an
improvement in this matter, and allowed the legatee's heir to exercise
the right of selection, although the legatee has not done so personally
in his lifetime; which enactment, through our careful attention to
the subject, contains the further provision, that if there are either
several colegatees to whom a right of selection has been bequeathed,
and who cannot agree in their choice, or several coheirs of a single
legatee, who differ through some wishing to choose this thing and others
that, the question shall be decided by fortune--the legacy not being
extinguished, which many of the jurists in an ungenerous spirit wished
to make the rule--; that is to say, that lots shall be drawn, and he on
whom the lot falls shall have a priority of choice over the rest.
24 Three persons only can be legatees who have testamentary capacity,
that is, who are legally capable of taking under a will.
25 Formerly it was not allowed to leave either legacies or fiduciary
bequests to uncertain persons, and even soldiers, as the Emperor Hadrian
decided by rescript, were unable to benefit uncertain persons in this
way. An uncertain person was held to be one of whom the testator had
no certain conception, as the legatee in the following form: 'Whoever
bestows his daughter in marriage on my son, do thou, my heir, give him
such or such land.' So too a legacy left to the first consuls designate
after the writing of the will was held to be given to an uncertain
person, and many others that might be instanced: and so it was held that
freedom could not be bequeathed to an uncertain person, because it was
settled that slaves ought to be enfranchised by name, and an uncertain
person could not be appointed guardian. But a legacy given with a
certain demonstration, that is, to an uncertain member of a certain
class, was valid, for instance, the following: 'Whoever of all my
kindred now alive shal
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