QJorn^U ilam i>rljaal Hibraty Cornell University Library KJA 147.N25 1890 Outline of Roman history from Romulus to 3 1924 021 197 573 Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021197573 OUTLINE ROMAN HISTORY. OUTLINE OF ROMAN HISTORY PHOM EOMULTJS TO JUSTINIAN (INCLUDING TRANSLATIONS OF THE TWELVE TABLES, THE INSTITUTES OF GAIUS, AND THE INSTITUTES OF JUSTINIAN), "WITH SPECIAL BEFEEBNCE TO THE OF ROMAN JURISPRUDENCE. BY DAVID NASMITH, Q.C., LL.B. AUTHOE OF THE ''INSTITUTES OF ENGLISH LAW,*' ETC., ETC. JOINT TRANSLATOE OF " ORTOLAN'S HISTORY OF ROMAN LAW." LONDON: BTJTTEEWOETHS, 7, FLEET STEEET, latn ^ublisIjtrB to -tl)e fignttn'a moat tictllent JBtajcstp. DUBUN: HODGES, FIGGIS & CO., GBAFTON STEEET. CALCUTTA: THACKEE, SPINK & CO. MELBOUENB: G. EOBEETSON & CO, MANCHESTEE: MEEEDITH, BAT & MTTLEE. EDINBUEGH: T. & T. CLAEK; BELL & BEADFUTE. 1890 K LONDON : 0. F. EOWOETH, OBEAT NEV BTBBEX, FETTEB LAI^, E.O. TO THE BIGHT HONOBABLE HIRDINGE STANLEY BARON HAL8BUEY, THIS BOOK IS, WITH PEKMISSION, RESPECTFULLY DEDICATED BV THE AUTHOR. PREFACE, No people witli whom the modern world is acquainted are so well known to it as are the Romans. Admitting that legend rather than history tells us of their origin and early days, yet in that legend it is not impossible to sever the real from the unreal to such an extent as to justify the assertion that we know the Eomans better than .any other people — their birth, their maturity, and their death. That the study of the organisation and development of the Eoman institutions must be one, not merely of interest, but of profit, is necessarily obvious to all who recognise the fact that each generation benefits or suffers by the doings or omissions of its predecessor, and that from the experience of those who have gone before, all learn, or ought to learn, how to steer their future course. The importance of the study of the Romans and their institutions has long been and still is universally admitted by the learned. There are many and most valuable books on Roman History. There are many and most valuable books on Roman Law. Speaking generally, however, the writers of the former practi- cally ignore the existence of Roman law, and the authors of the latter that of Roman history: by so VI PKEFACE., doing they, to a great extent, deprive their readers of the pleasure of being able to trace cause and effect — • the very essence of the value of- history. To be told that a particular military enterprise was advantageous or disastrous to the Eomans is a historical fact of interest, and one worth the learning, but, when the result of that enterprise was a great and lasting modi- fication of the Roman law, the omission of mention of that fact is serious. To dilate on a particular Roman institution, for example, that styled the patria potestas, in any other than chronological form, is simply absurd; for the patria potestas of one period was no more like that of another than was the English feudal system of William I. like that of its namesake abolished in a.d. 1660. The object of this sketch is- to make that which is ordinarily understood as Roman history go hand in hand with the chronological changes in Roman law, and to furnish the reader and myself with an outline or pegs so arranged as to enable us easily and accu- rately to store our future acquisitions. Concerning Roman law many strange things have been said, not merely by others, but by some of the Romans themselves. Prior to the publication by Grotius in a.k. 1625 of his '■^ Dejure belli et pacis,^^ law in modern Europe had practically no pretension to the rank of a science. The laws, such as they were, of each State, were doubtless more or less diligently studied by the legal practitioners PREFACE. Vll of the period and place, but the notion that law meant anything other than a collection of arbitrary rules does not appear to have entered the minds of those who only saw sovereigns and subjects in the light of masters and servants. Grotius said, '^t is too narrow a view to say that 'utility' is the mother of rights: the mother of rights is human nature taken as a whole, with its impulses of kindness, pity, sociality, as well as its desire of in- dividual pleasure and fear of pain. Human nature is the mother of natural law, and natural law is the mother of Civil or Instituted law." (Art. 16.) It is true that the learned were more or less acquainted with the works published in the name, and during the reign, of Justinian, but it was not till a.d. 1819, when the Institutes of Gains were discovered, that modern. Europe became alive to the fact that there had been in Rome men like Grotius — true jurists. It was then that the learned became somewhat sceptical concerning their Justinian idol, and began to doubt whether the Romans really were, except during a comparatively brief period of their existence, the great lawyers they had been pictured. A comparison of the Institutes of Justinian with those of Gains, imperfect as is our copy of the latter, almost instantly demonstrates the fact, that, whereas Gains was a jurist in the true sense of the term, the author of the Institutes of Justinian was not. As an instance, the author of the Institutes of Justinian says — '-'Jurisprudence is the knowledge of things divine and human, and the exact discernment of Viii PEE FACE. what is just and unjust." (Just. Inst. 1. 1.) Again, " The law of nature is not a law to man only, but like- wise to all other animals, whether they are produced on the earth, in the air, or in the water. Hence proceeds the conjunction of male and iemale, whichi we among our own species style matrimony : whence arises the pro- duction of children, and our care in bringing them up. We perceive, also, the rest of the animal creation are regarded as having a knowledge of this law, by which they are actuated." (Just. Inst. 1. 11.) It is inconceivable that such and many other like passages findable in Justinian, could have emanated from a jurist. Nothing in the faintest degree resembling them is to be found in Gaius. That the Romans from very small beginnings became a mighty nation and afterward dwindled to nothing, is matter of common knowledge. The answer to tbe question : Why ? — is and always has been doubtful, and far from satisfactory. The decline and fall of the Roman Empire was not due to one, but to various causes. Those causes are, I trust, sufficiently indicated in this sketch. Why the Romans, whose legal instincts were, from the first, singularly acute, should have fallen from the juristic height of Gaius and the men of his time — Papinian being the greatest — to the depths of the Justinian era, it may not be easy to explain. Should anyone venture to say — '< The Romans never did so PRErACE. IX fall — Justinian and his colleagues were not Romans it might be somewhat difficult to refute him. When all that gives character and individuality to a people, or to a person, has faded away, the bare name can neither inspire awe, nor respect. To say that the law of the period of Justinian was in some particulars less harsh than that of the period of Gaius, conveys no real lesson. Of course it was : the law of the period of Gaius was less harsh than was that of Rome two hundred years before his time. All legal growths mollify as they ripen, and apparently continue to do so till they begin to decay. The question is, had decay attacked the Roman law at the time of Justinian ? My contention is, that it had, and that to a very serious extent. Law is one thing, religion is another, and morality is a third. They are the three inseparable bonds of human society. To confound, however, the province of the Church with that of the Law — the Secular power — is fatal alike to the Law and to the Church. The experience of the Romans sufficiently demonstrates that fact. It is not to the substitution of Christianity for the ancient Roman faith, as has been suggested by some, that the degeneration of the Romans is to be ascribed, for modern nations professing that faith have prospered and flourished to a degree unequalled by nations holding any other faith: except, indeed, in those instances where the Christian church has been suffered X PEEFACE. to usurp the attributes and functions of temporal sovereignty. The history of any people necessarily involves the study, inter alia, of two things: Geography and Chronology. Where and whefi did they exist and act? Everything in this world is relative. That which is possible at one period, and in one place, is im- possible at another period, and at another place, if not even in the same place. Neither the Romans nor any other people could now do what the Romans once did. Their successes were mainly due to the fact that their great struggles were either with nations effeminated by luxury, or with barbarians who lacked their military skill. Their subsequent failures were largely due to their own effeminacy. There is one fact to which reference "must not be omitted, that is, the mention by me of the names of the emperors who were either useless or worse than useless to the Romans. The reader may say — " Why not pass them over in silence ? " My answer is this : — " It appears to me to be no less the duty of the historian to hold the vicious up to execration than the virtuous to admiration. The history of a people demands knowledge of the bad as well as of the good. A vicious or worthless ruler is a nation's curse." This survey, which covers a period of about 1300 years, presents an ascending and a descending course, the brow of the hill being two centuries — that imme- diately before, and that immediately following a.d. PEEFACE. XI The work is divided into three separate parts, viz. :— The Outline: The Institutes of Gaius : and The Institutes of Justinian. It is so divided for the convenience of the reader, who, thereby, can readily compare Gaius with Justinian. The Outline is divided into twelve chapters, which, with the aid of the chronometrical chart, wiU, it is believed, keep every period and event chronologically accurate : and, by the device resorted to in the map and numbers, the reader will, almost without reference to it, feel himself in touch of each place as it is men- tioned. The locality rather than the exact spot is that which is needed by the historian. However, I have also made an alphabetical geographical index. The chart and map are in the pocket of the back cover. The translation of Gaius is derived from the text; the translations of M. Pellat, published in 1844; Dr. Abdy's Gaius, published in 1870, and Mr. Poste's Gaius, published in 1885 : that of Justinian is the trans- lation by Dr. George Harris, published in 1 8 11 . I know of no better. The student who can possess himself of a copy of that work will be delighted with the Latin text and the notes. In the case of Gaius, though at the' risk of some grammatical peculiarities, I have sub- stituted the Latin technical terms for their translations, being of opinion that the Latin, even when not strictly in accord with the English context as to case, &c., is far less likely to mislead than is the best translation : there are in fact, many terms that cannot be translated though they may be explained. Gaius is remarkable xii PBEFACE. for the way in wliich he explains the technical terms used by him. Considerable care has been bestowed on the index, by the aid of which, and the table of contents, con- structed on somewhat novel lines, it is hoped that the reader will, without difficulty, be able to turn up any point in either of the three sections of the book. I acknowledge with sincere gratitude the valuable assistance of my learned friend, Mr. Edward RoUand, who read my manuscript and made several valuable suggestions, and also revised the proofs. 4, Bbiok Cotjet, Temple. Felruary, 1890. TABLE OP CONTENTS. A SKETCH OP ITALY IN B.C. 753 page 1 OUTLINE OF ROMAN HISTORY FROM ROMULUS TO JUSTINIAN, IN TWELVE SHORT CHAPTERS. Chap. I. THE EEGAL PERIOD. A.U.C. 1 TILL A.T7.0. 244;— B.C. 753 TILL B.C. 510. Chronology of the kings 7 The inhabitants of the Roman state 7 Popnlus Romamis 8 Royalty — ^Aristocracy 8 Plebeians 8 &entes — Ingenuus 8 Clientage , 8 Patron and client, their respective duties 9 The calendar 9 The priesthood 10 The augurs , , , 10 FAQE Legislative assemblies 1 1 The comitia ouriata H The senate 12 The feoiales 12 The king 13 The census (b.o. 566) 13 The franchise , ig The comitia centuriata , 16 The local tribes I6 The knights 17 Taiquinius Superbus (b.c. 634 to B.C. 510) 17 Chap. II. THE EEPUBLIC— 1st Peeiod. A.U.C. 244 TILL A.U.C. 354; — ^B.C. 510 till B.C. 400. A consul impeached by tribunes (b.o. 476) 22 Lex PubliUa (b.o. 472) 22 The decemviri (B.C. 461) 23 The Twelve Tables 2i et aeq. The Lex Valeria Horatia, de ple- biscitis (b.o. 449) 32 The Canuleian law, de oonnubio patrum et plebis (b.o. 445) .... 32 Military tribunes (b.c. 444) 32 Censors (b.o. 443) 32 The establishment of the consu- late and the Rex Sacrificulus, or Rex Sacrorum (b.c. 509) 19 The Leges Valerias (b.o. 609, 508) 19 A patrician dictator — Magister populi (B.C. 601) 20 Plebeian tribunes — Tribuni plebis (B.C. 494) 21 Comitia tributa (b.c. 489) 21 Plebeian ediles— .^diles Plebeii . . 21 N.B. Eor the convenience of reference, the page, and where possible the date is added to each event referred to in the Table of Contents. TAWwE OF C()NTE>'TS. .Chap. III. . THE 'BEPUBLIC— continued. THE P0T7BTH CENTtTRT B.C., i.e., A.TJ.C. 355 TILL A.IT.O. 454 ; — B.C. 399 TILL B.C. 300. PAGE Veil Buccumbed to the Bomans , (B.C. 396) 34 The Eomans fled before tbe Gauls — dies Alliensis (b.c. 390)...^ Eome burned to the groiand — The Lioinian law — Plebeians ad- mitted to the consulate (B.C. 367) The first prsetor urbanus (b.c. 367) Lex Lioinia, de modo agronun (B.C. 367) 37 Lex Licinia, de ssre aUeno (b.c. 367) 37 Lex Lioinia — The Sibylline verses (B.C. 367) 37 Two patrician eediles appointed — .ffldQes Curnles (b.c. 366) 37 34 36 37 The first plebeian dictator (b.c. 356) The first plebeian censor [b.c. 331) The iirst Samnite war (b.c. 343) . . Komeor Latium (b.c. 340 to B.C. 338) 38 38 38 38 The Leges PubHUsB (b.c. 339) The first plebeian prsetor (b.c. 337) Lex PetUlia Papiria, de nexis (b.c. 326) The second Samnite war (e.g. 326 to B.C. 304) Appius Claudius the blind (b.c. 312) Jus Flavianum (b.c. 304) 40 The first plebeian pontiff and augurs — Lex OguHia (b.c. 300) 41 39 39 39 40 Chap. IV. THE EEPUBLIO— cojiimued. THE THIKD' CENTUET B.C., i.e., A.U.C. 455 TILL A.U.C. 554 ; — B.C. 299 TILL B.C. 200. The Orators, Historians, Philosophers, Poets, Sfc. of the Period. The third and last Samnite war (B.C. 298 to B.C. 290) 42 Lex Hortensia, de plebisoitis (b.C. 286) 43 Kome mistress of all Italy (b.c. 286 to B.C. 266) 43 The fourth and last Samnite rising (B.C. 268) 44 The first Punic war (b.c. 264 to B.C. 241) 44 Gladiatorial 'exhibitions, the first (B.O. 264) 46 The first plebeian Pontifex Maxi- mu3 (b.o. 253) 46 A prsetor peregrinus — Jus gentium (B.o. 247) 47 Lex Silia — Coudictio (b.c. 244) .. 47 Lex Calpumia (b.c. 234) 47 The second Punic war (b.c. 218 to B.C. 201) 47 The sumptuary law of the tribune 0. Oppius (B.C. 215) 50 The first Macedonian war (b.c 215) 60 Lex Cinoia Muneraiis (b.c. 204) . . 50 The second Macedonian war (b.c 200) b^ctseq. TAliLE OF CONTEXTS. XV Chap. V. THE EEPUBLIC— cOTii/mferf. THE SECOND CENT0RY B.O., i.e., A.TT.O. 555 TILL A.U.C. 654;— B.C. 199 TILL B.C. 100. The Orators, Historians, Philosophers, Poets, Sfc. of the Period. PAOE Lex Orchiona (B.C. 181) 52 Lex JBbutia — Ordinary or formu- lary procedure (b.c. 177) 52 The third Macedonian war (e.g. 171) 53 Lex Fanniana (B.C. 161) , 54 Lex CalpumiaRepetundarum (b.c. 149) 55 The third Punic war (b.c. 149 to B.C. 146) 56 Greece a Eoman promioe (b.c. 146) 56 War in Spain (b.c. 153 to B.C. 133) 57 The first servile war (b.c. 134) . . 57 Lex Sempronia, Agraria (b.c. 133) 58 Tiberius Grraochus, tribune (b.c. 133) ;... 58 Lex Sempronia, Frumentaria (b.c. 123) 68 Lex Sempronia, Judiciaria (b.c. 122) :... 59 The Jugurthine war (b.c. Ill to B.C. 106) 59 Lex Thoria, Agraria (b.o. 107) . . 60 The Cimbri and Teutons (b.c. 107 to B.C. 101) 60 The second servile war (b.c. 102 to B.C. 99) 61 Chap. YI. THE EEPUBLIC— cojifeiMecZ. THE FIRST CENTtTET B.C., i.e., A.U.C. 655 TILL A.U.C. 753-4; — B.C. 99 TILL A.D. The Orators, Historians, Philosophers, Poets, Sfc. of the Period. Drusus proposes that the franchise be given to the Italians (b.o. 91) 63 ■War— Lex Julia (b.c. 90) 64 Lex Plautia (b.c. 89) 64 Eoman citizenship — Civil war — Marius and Sylla (b.c. 87 to b.o. 81) 64 The Catiline conspiracy (b.c. 66) . 67 Thefirst triumvirate — Ofesar,Pom- pey, and Crassus (b.c. 60) .... 68 Lex Julia, Agraria (b.c. 59) .... 68 The second triumvirate — ^^Octavia- nus, Antony, and Lepidus (b.c. 43) 72 The battle of Actium (b.c. 31) . . 74 THE EOMAN EMPIEE. A.U.C. 723 TILL A.U.C. 753-4 ;— B.C. 31 till A.d. The consequences of the battle of Actitim ... . .' XVI TABLE OF CONTENTS. Chap. VII. THE BMPIEE— continued. THE FIEST CENTUBT OE THE CHEISTIAK EEA, i. e., A.TT.C. 753-4 TILL A.U.C. 852 ;— A.D. TILL A.D. 99. £!mperors-^Jurists — Orators, Historians, Philosophers, Poets, S^c. Leges Julia (e.c. 18) et Fapia> (A.B. 9) 78 Lex ^lia Sentia (a.d. 4) 80 Lez Fusia (or Furia) Ganima (A.D. 8) 80 Enfranchisement 80 Fidei oommissa — CodicilH 81 Licensed inrists — Kesponsa pru- dentum 81 PAGE . 82 Constitutiones prinoipum Lex de Imperio — Lex Ouriata — Lex Begia 83 The two schools — ^the Sabinians or Oassians, and the Proouleians or sians 85 86 Lex Jiinia Norbana (a.d. 19) Chap. VIII. THE. TSMSJSSr-continued. THE SECOND CBNTUEY, i.e., A.tJ.O. 853 TILL A.U.C. 952 ;— A.D. 100 TILL A.D. 199. Emperors — Jurists — Orators and Writers. Trajan 89 Hadrian 89 Lex de Eesponsis Prudentum — Sententise et Opiniones made part of the Lex scripta 90 Ediotum perpetuum (a.d. 131) . . 90 Antoninus Pius 91 Marcus Aurelius Antoninus .... 92 M. CommoduB Antoninus 92 Pertinax 93 Didius Julianus 94 TABLE OF CONTENTS. XVU Chap. IX. THE 'EMPIEE— continued. THE THIRD CENTTTET, i.e., A.TJ.O. 953 TILL A.TJ.C. 1052;— A.D. 200 TILL A.D. 299. Emperors — Jurists — Orators and Writers. PAGE Septimius Severus 97 Caiacalla and Greta 99 All subjects citizens (a.d. 212) . . 100 Leges Julia et Fapia Foppeea modified 100 Kacrinus 100 Elagabalus (or Eeliogabalus) .... 101 Alexander Sevems 101 MftTiTniTT 104 Mazimus and Balbinus lOS Grordianus III 106 PHlippus , 106 Decius 106 FAQE Gallus and Hostilianus 107 ^milianns 107 Valerian and Gallicenus 107 Claudius II 110 Aurelian Ill Tacitus 113 Horiauus 113 Probus 113 Cams , 115 Carinus and NiuneriauuB 115 Diocletian 117 Diocletian and Maximian 117 Chap, X. THE EMPIRE— coMimttei. THE FOtTBTH CENTCEY, i.e., A.TT.C. 1053 TILL A.TJ.C. 1152; — A.D. 300 TILL A.D. 399. Emperors — Division of Diocletian — continued Constantino sole emperor The new capital Beorganization of the administra- tion Kank Christianity the statfe religion .... Changes in the private law Legal text books — Authorities and opinions Constantine II. ; Constans I. ; ConstantiuB II Suppression of the formulse — De FormuUs Sublatis (a.d. 342) . . N. the Empire — Orators and Writers. Julian 133 Jovian 131 Valentinian I. and Yalens 134 IntheWest 135 In the East 136 Gfratian (w.) 137 Valentinian II. (w.) 137 Maximus (w.) 138 Theodosius I. (b.) 139 The severance of the Eastern from the Western Empire (a.d. 395) . 141 Honorius (w.) 142 Aroadius (e.) 142 h 121 127 127 128 128 128 129 129 130 131 XVIU TABLE OF CONTENTS. Chaf. XI. THE 'EMPIBE— continued. THE riFTH; CENTUET, i.e., A.U.C. 1153 TILL A.TT.C. 1252 ; — A.D. 400 TILL A.D. 499. Emperors of the West— Emperors of the East— No Jurists — I One Prose Writer, PAOE Honorkis {'W.) 14* Valentmian III. (w.) 146' ATcadiii8.(E.) 150. TheodQSUe II. (b.) 160 The Qregorian sqid the Hermoge- mah Codes .' ISl Lexde Besponsis Frudentnm (a-s. 426) ....• 152 Theodosian Code (a-.b. 438) . . 152 The Novellffi 153 Fulcheiia. aad Marcian (e.) 157 Leo I. (b.) -. 157 Chap. XII. THE EMMEE— cowimteec?. THE SIXTH OENTUBT, i. e., A.TT.C. 1253 TILL A.T7.C. 1352 ; — A.D. 500 TILL A.D. 599. The Emperors of the East till A.D. 565. Anastasius 159 Justin-I; . . . .; 160 Justinian I. ..:.....;.... 160 Justinian's address to the senate of Constantinople ouoodiftoation. . 161 The titles and sub-titles of ^llis code 162 His epistle to Trihonian respecting the Digest or Pandects 179 The titles and sub-titles of the Digest 181 His introduction to his Institutes . 191 The titles and sub-titles of the In- stitutes '. » 193 His NoveUse 198 Corpus Juris Civilis 199 TABLE OF CONTENTS. THE INSTITUTES OF GAIUS. ■n /-I ^^'^^ ilEBT CiOMMENTAEY— PeeSONS 200 Secoud Commentaet — Thinos 232 Thied Commentabt — Inheeitanoe ab intestate and Obligations 282 FOUBTH COMMENTAEY — ACTIONS 327 THE INSTITUTES OF JUSTINIAN. Book I. — Pbesons 369 Book II.— Thdiqs 403 Book III. — Inhkeitanoe ab intcstato and Oblioations 480 Book IV. — Obligations c.f delicto and Actions 543 A TABLE OR DIAGRAM OF KINDRED AND AFFINITY, copied from that published by Br. Harris 378 A NOVEL MAP 598 ALPHABETICAL GEOGRAPHICAL INDEX 599 ALPHABETICAL GENERAL INDEX 603 niiORGE pnji.ip » OUTLINE OF EOMM HISTOET. ITALY in B.C. 753. In the year b.c. 753 (a.u.c. 1), the commonly accepted date of the foundation of Rome, Italy and Graul were peopled by the descendants of three principal races — ^the Iberians, the Kelts or Gaels with their kindred Cimbri, and the lones. Among the subordinate nationalities of Italy existing at the date in ques- tion there were three of more immediate interest to the Roman historian than the rest, viz., the Latins,^ the Sabines,^ and the Etruscans.^ These three nationalities, or rather a detachment from each, by common consent located themselves at the spot since known as Home. Though united in one common object— the foTindation of an independent state — they to a certain extent retained their original tribal distinctions. From Eomulus, the chief of the Latins, one tribe acquired the name of Ramnemes ; from Tatius, the chief of the Sabines, another that of Tatienses ; and from Lucumon, the chief of the Etruscans, the third acquired the name of the Liiceres. Thus the Romans from the earliest period and for a long time were divided into three tribes — the Ramnenses, the Tatienses, and the Luceres. Of these three, the Ramnenses (Latins, Romans), and the Tatienses (Sabines, Quirites), appear to have 1 128. N.B. — The number indicates the square on the map where the place in question will be found on any large map, if not on that accompanying this book. N, B 2 OtfTLINE OF BOMAN HISTOHY. been the most important, and, in short, to have been the founders of Eome, by whom the Luceres were subsequently admitted, though when is doubtful. Hence, though the tribes long re- mained distinct, the coUeotive people were styled " Fqpulo Romano Quiritibusque," and at a later date "Populus Romanus Quiritium," whereas the Etruscan el^ent, when specifically re- ferred to, was styled the third part of the Eoman people, "pars tertia populi Romani." Between these three tribes the original Eoman territory {ager Romanus) was divided into three parts, one being allotted to each. The members of a tribe were styled "tribules." Each tribe was divided into 10 cim'ce, the result being that the entire populace was divided into 30 curicB. The members of a curia were styled curiales. Each curia had its tutelary deity, its peculiar creed, sacrifices, priests, fates, and festivals. The dominant characteristics of the Eomans of this period — The men of the lance — ^is conveyed, in two words " Eeligion," and the " Lance." Romulus, their founder and first king, was of divine origin. The son of Mars by a vestal virgin guided and protected by heaven during a reign of thirty-seven years was at last borne to heaven by his divine father. Such was the early and long- cherished Eoman belief. Whether public or private, no enterprise of importance was undertaken by the Eomans without first seeking divine guidance and a divine blessing. The Eomans had no idea of right save the " divine wiU," and " might." By their lance they acquired their- territory, their first wives, and their slaves. What then more natural than the notion that their wives, their children, and their slaves, were alike property to be dealt with at the pleasure of the owner ? Romulus. — It is said that for centuries the Eomans never doubted the miraculous conception and ascent to heaven of Eomulus the founder of their city. The account in brief runs thus :— Procas, king of Alba, of the family of the Silvii, had two sons, Numitor and Amulius. Before his death he appointed Numitor his eldest son to be his successor. Amulius, however, deprived his brother of the throne, put his brother's son to death, and compelled his daughter Ehea Silvia to become a OUTLINE OF ROMAN HISTORY. 3 vestal virgin. He, however, suffered Numitor to enjoy his father's private estates. Eesolved to avenge the wrong of this unhappy family and to raise a state hefore which Alba and the Latins should fall prostrate, the divine Mars overpowered the timid virgin Ehea Silvia and then consoled her with the promise of illustrious children. Silvia gave hirth to twins. Amulius ordered her to be put to death, and her children to be drowned in the river Anio. A she-wolf, however, rescued the babes, carried them to her den, and there suckled them, till they were discovered by a shepherd, who carried them to his wife, Acca Laurentia, who became their foster-mother. Grown to manhood and informed of the wrongs of their family, the brothers Eomulus and Eemus, joined by faithful comrades, attacked and slew AmuHus, and restored Nundtor to the throne. Eomulus and Eemus then resolved to build a town on the spot where they had passed their infancy. This they did with the assistance of their former companions. It is said that Albans, Latins, and even some nobles descended from the Trojans, joined in the enterprise. Disputes arose between the brothers, some say as to the site of the new city, others as to which should rule over it. Here heaven again interposed. It was left to the gods to decide by augury. Eemus saw six vultures fly overhead. Eomulus de- clared that he saw twelve. Eemus was reluctantly compelled to yield. Eomulus traced out and built the city wall. Eemus, still chafing over his supposed wrong, leaped over it in scorn. For this insult he was slain, some say by one Geler, others by his brother Eomulus, who, they say, exclaimed, " So shall die who- soever ventures to leap over my wall." The burst of passion over, Eomulus was filled with remorse ; he refused to eat, and could not be comforted till informed by Faustulus, his foster- father, that the shade of Eemus had appeared to him and promised to be reconciled to his brother, provided Eomulus would institute a festival for the souls of the dead. Eomulus willingly acceded, and instituted the Lemuria. As a further mark of honour to the deceased, he set up a second throne by the side of his own with a second sceptre and crown. When the city was built, it was found that the small com- b2 4 OUTLINE OF UOMAN HISTOKY. munity was not sufficiently numerous to resist the attack of probable enemies. To increase the population, Eomulus threw the city open to all comers. Freemen, exiles, and runaway slaves flocked to it. One element was still wanting. There were no women at Rome. The attempts of Romulus to conclude treaties with neighbouring peoples, whereby marriage between them should be made lawful, faUed. Romulus resolved on stratagem. He proclaimed a great festival, the Consualia ; the neighbouring Latins and Sabines were invited. Numbers with their wives and children flocked to Rome. On a given signal the Romans fell upon the visitors, seized and carried off their women. The captured maidens were soon appeased, not so their angered relatives. The Sabines rose in arms and marched against Rome. Treachery enabled them to enter the city. The fight grew desperate. The Sabine women rushed between the combatants, peace was concluded. The two people became one — Populo Romano Quiritilusque. Each, it was agreed,, should retain its own king, but all temples and religious rites were to be common to both. As Romulus was established on the Palatine, T. Tatius built on the Capitoline and Quirinal. Matters of importance were discussed between the two kings in the plain between the Capitoline and the Palatine. T. Tatius, a few years after, was slain by some Laurentines. No successor to him was appointed: Romulus became sole king. After a reign of thirty-seven years, and on the nones of Quintilis, while the king was reviewing his people in the plain near Lake Capra, the sun withdrew his light, the earth was covered with darkness, Mars descended in a tempest and bore his son to heaven. Subsequently, the glorified king appeared to Proculus Julius in a vision, and promised to watch over his people, the Romans, as the god Quirinus. In the year a.u.c. (b.c. 753), and for some considerable time after, Rome had practically but one class of population, its founders, patricians, at the head of whom was the king, who united in himself the three functions of Gommander-in-Ohief, High Priest, and Chief Justiciary. The success of the young state early attracted foreigners to it. A ready welcome appears to have been extended to them, though OUTLINE OV ROMAN HlSTOKY. 5 equal rank witli ihe patricians, except in rare cases wMoh did exist, but about wjiich we are not well informed, was denied them. The new-comers became and remained distinguished from the patrician founders of the city and their posterity by the style of " Plebeians." They had no share in the govern- ment, nor were their civil rights equal to those of the patricians. In addition to persons who went voluntarily to Eome, many of the conquered foes of Eome were dragged to the city as the slaves {servi) of their conquerors, and were either employed by them in domestic service, or distributed through the ager Bomanm as the tillers of the soil. By the year a.u.c. 100, the plebeians had grown- numerically strong. By the year a.u.c. 200, they found themselves in the possession, not merely of civil rights little inferior to those enjoyed by the patricians, but of many important political lights. In the year a.u.c. 244 (b.c. 510), they combined with the patricians, and Overthrew the hereditary regal republic, and substituted for it an aristocratic republic, with annually elected consuls at its head. In order rightly to appreciate Eoman history, it appears to me necessary, in addition to what has already been said, to have just and clear notions on the following points, viz. : — I. The fundamental principles on which the Eoman kingdom was established had little or nothing in them that was then novel in Italy, which, so far as we know, appears to have been split up into little kingdoms, each constructed upon practically the same lines. Grains says, however, that the patria potestas was peculiar to the Eomans, by which he must be taken to have intended that the patria potestas of the Eomans differed, so far as he knew, from that of every other nation. II. Throughout Italy, service in the army of any of its little kingdoms was a privilege reserved to its patrician class. III. It was a universal Italian notion that success in war entitled the victor either to slay the vanquished, or to preserve and subordinate him to his use. Those, therefore, who were 6 OUTLINE OF EOMAN HISTORY. thus preserved were styled servi, i.e., preserved, whence it is ohvious that the word servi represents a class of persons widely different from those understood by the modern word " slaves " or by the word " serf." They, in many instances, were persons who, at the time of their becoming servi, were as well bom and educated as their victors and masters, if not better. What their posterity became is another matter. "That depended upon cir- cumstances : some attained honourable and high positions ; others became the scum of society, more discreditable, perhaps, to the system under which they lived than to themselves. There were, however, as we shall see, sources of slavery other than war. lY. Neither the " commercium," «.e., the right to trade, nor d fortiori the " connubium," i.e., the right to intermarry between the people of distinct Italian sovereignties, ever existed, unless by virtue of express treaty ; nor did the connubium, exist in any of those states between the patrician and plebeian members of it, except by special enactment of that state. Slaves never married, they simply cohabited. They were regarded in law rather as cattle than as human beings. Y. There never was such a thing as we understand by the expression a " United Italy." Eome, Eegal Rome, the Eoman Eepublio, the Eoman Empire, are expressions that from time to time, and till the separation of the Eastern from the Western Empire, were used to convey one idea — Eome — the sovereignty — the mistress of all within its sway. As Eome conquered town after town — the land attached to each was regarded as an annex — ^it gave to each, according to circumstances, the privi- leges of mimicipia, first, second, or third class, or those of colonice. ( 7 ) Chapter I. THE EEGAL PEEIOD. A.U.C. 1 till A.TJ.C. 244 ;— B.C. 753 till B.C. 510. Ohkonology OS THE TTmes. A.U.O. B.C. 1 . . . . 753. TLe foundation of Eome. 1—37 . . 753—717. Eomiilus. 39—81 . . 715—673. Numa Pompilius. 82—113 . . 672—641. TuUus Hostilius. 114-137 . . 640—617. Ancus Martins. 138—175 . . 616 — 579. Lucius Tarquin (Tarquinius Priscus) 176—219 . . 578—535. Servius TuUius. 220—244 . . 534 — 510. Tarquinius Superbus. Though I have indicated as above the names of the seven kings, and the alleged term of the respective reigns of each, it is not my intention to deal with them as individuals, except whereiQ they may be necessary for the purpose of this sketch of the development of the Romans as a people. The Inhabitants of the Roman State. — I have selected this heading to avoid the error into which the English reader is not unfrequently led by the expression " Pojmlus Bomanus." If vfe divide the inhabitants of the Roman state under the kings into — ■ (i.) Royalty ; (ii.) Aristocracy (Patricians) ; (iii.) Commonalty (Plebeians) ; (iv.) Slaves (Servi, Mancipii) ; (v.) Freedmen (Libertini) ; (vi.) Foreigners (Peregrini) ; we have practically before us all the individuals, though not with all their appella- tions, with whom we are concerned, save and except the Dediticii who, as will hereafter appear, occupied" a peculiar position. .8 OUTLINE OF ROMAK HISTOKY. Populus BomanuB. — This expression is a generic term. It was used by the Eomans to designate the ooUeotive body of patricians and plebeians, and those only. Royalty. — See post, " King." Aristocracy — [Patricians, Patres, fatricii). — The patricians were those who could trace their ancestors through an unbroken line of ingenui {qui pairem ciere possent, id est, nihil ultra quam ingenuus). The Senators were Patres, their descendants were Patrioii. ' The term " Patres " was not, however, synonymous with senators. The senators were selected from the Patres. Plebeians. — The plebeians were those who were not members of any patrician gens — Plebes, in qua gentes cwium patricice non Gtentes — Ingenuus. — The entire body of the Patricians was divided into artificial families styled " gens." The fundamental principle of a gensyias the fact that in tracing the descent to the ultimate stock, no instance could be found of an ancestor having ever been in any kind of vassalage. [Quorum majorum nemo servitutem servivit.) One born in a gens and who could conse- quently trace a pure lineage was said to be ingenuus. At a later date the gens seems to have assumed the character of a clan rather than that of a family, for it appears that a gens might then consist of different families, e.g., the Cornelia gens contained the Scipios and the SuUse. The members of a gens were styled' gentiles, from which word we have the modem " Gentilhomme," " GrentHhuomo," " Grentilhombre," and " Gentleman." To each gens were attached two subordinate classes, viz., the clients of the gens, including their descendants, and the enfranchised of the gens, including their descendants. Clientage — Patron and Client. — Ortolan says that it is almost capable of demonstration that in the first ages of Eome, all the plebeians, not .already enfranchised, were distributed among and attached to the several patrician houses by the bond of clientage. THE REGAL PERIOD, . 9 Patrons — {Patroni, CKentes). — The patrons were the secular and spiritual governors of the state. Next to the name of father that of patron stood highest. He was the ultimate, tutor and heir of his clients and their descendants, as also, of their enfran- chised and their descendants. Patron's Duty. — It was the duty of the patron to protect his client's interests when present or absent, and to instruct and assist him in litigation. Client's Duty. — It was the duty of the client to ransom his patron or his patron's son from captivity, and to provide mar- riage portions for his daughters. The burden of public charges, e. g., the expenses connected with magisterial offices, the payment of fines, the cost of unsuccessful litigation, and the maintenance of public roads and buildings were theirs. Reciprocal Duties. — Neither patron nor client could be the accuser of, or witness against the other, nor could either render assistance to the enemy of the other ; to do so made him liable to be sacrificed to the gods {sacer esto). The name of the gens, with a peculiai" termination, was the name of the client, so of the enfranchise. The religious rites and sacrifices peculiar to the gens {sacra gentilitia) were his. All the members of his par- ticular gens were his gentiles, He was a member of the family [familia), a familiar {familiaris) of his patron. The Calendar. — It is said that before the time of Numa, the Eoman year, Kke that of the Albans, consisted of ten months only, the first being March ; and thq,t Numa added January and February, making a year of, in all, 354 or 355 days, i.e, from ten, to eleven days less than the solar year. This discrepancy necessitated periodic re-adjustments of the calendar. The duty of re-adjusting was one of the functions of the pontiffs. To appreciate the importance of this function it is necessary to bear in mind two facts, viz. : 1. Many, and indeed all important acts must be done on days and within hours that were fastns, other- wise they were invalid. 2. Like modern communities the Eomans divided their days into what, for the sake of expressing 10 OUTLINE OF B.OMAN HISTORY. the idea, we may style week-days {dies fasU), on wHolt it was lawful to transact business {fari licet) ; and Sundays {dies nefasti), on whioli it was not lawful to transact any business of a legal eharaoter {fari non licet). In addition to wHch, like the Jews, they had days, part of which might he devoted to secular matters and part of which was reserved for spiritual affairs. Such days were termed cut of divided days {inter cisi). They were nefasti in the morning and evening, i.e., at the time of the immolation of the sacrificial victim, in the morning, and its solemn sacrifice in the evening, whereas between the two periods they were fasti.^ In addition to these there were fixed and movable holy days {dies comitiales) upon which alone the comitia could be held and many other acts done, whether public or private. It is therefore evident that the control of the calendar gave to the pontiffs great power and influence ; for, till the publication a.tj.c. 450, b.c. 304, of the book of working days {fastorum Ubri) they could, at pleasure, stop any important measure by simply declaring that the day was " nefastus." The Priesthood. — It was chiefly from an Etruscan source that the Eomans derived their religious theories and practices. Cicero, in his book, Be Divinatione (hb. I. 841), |ieUs us that the Senate decreed that six children of the first patrician families should be confided, one to each of the different Etruscan com- munities, to be educated, in the mystery of divination. The priesthood formed a coUege of which the king was chief, and as such was styled Poniifex Maximus. Though the sacerdotal function was a privilege exclusively enjoyed by the patricians, it was in no way inconsistent with secular dignities and offices, nor did it in any way necessitate departure from the ordinary habits of social life. Augurs. — The special function of the augurs consisted in presaging the result of contemplated enterprises by the means ' It is interesting to note that not tants, Monday with the Greeks, Tuea- merely is Sunday an universal institu- day with the Persians, Wednesday with txon, hut that there is not, so I have the Assyrians, Thursday with the read, one day in the week that is not Egyptians, I'riday with the Turks, a bunday somewhere. Sunday is Sun- Saturday with the Jews day with the Romanists and Protes- THE REGAL PERIOD. 11 of celestial phenomena :— olDservations upon tlie entrails of the sacrificial victims, attention to the flight, the song, or the appetite of birds. Legislative Assemblies — Comitia Curiata. — The most ancient, the most aristocratic, and by far the most important of all Eoman legislative assemblies was the comitia curiata — ^the meeting of the 30 ourise held in the centre of the city at the spot known as the comitium. It was convoked by the lictors.^ It selected the king, and elected to the highest sacerdotal, civil, and military offices. It enacted the law of investiture — lex curiata — by which ' the imperium or right to command was conferred. By it the composition of families was determined, and testamentary succession regulated. The comitia curiata could not assemble, however, unless convoked by patrician magistrates, acting under the order of the senate ; and when convoked could only deliberate on one matter, viz., that for which they had been convoked. The presence in their midst of the augurs was indispensable. The augurs could at any moment stop the deliberation and disperse the assembly by the mere utterance of the formula "Another day" {alio die). As with- out the lex curiata, no official elect had imjycrium, so without the confirmation of the senate no decree of the comitia curiata — ' " Lictors, in Rome, were the public be impeded in his progress, and this servants, who attended upon the magis- was effected by the cry, 'The consul trates to fulfil their commands. Their (or prsetorj &c.) comes! Make way- name (lictores) was derived from their for the consul.' When he returned binding offenders hand and foot pre- to his own house or entered another, Tioizsly to the punishment of scourging. the liotors struck the door with their The ofSce was borrowed by Eomnlus fasces. They also took care that proper from the Etruscans, whose chief magis- respect should be shown to the person trates were attended by servants, bear- of the magistrate. A horseman who ing axes tied up in bundles of rods, met the consul was obliged to dis- whioh were called fasces. Eomulus mount. Everyone uncovered his head was himself always preceded by twelve as he passed, left him free passage, of them. When the regal dignity was &c. The lictors were the executioners abolished at Eome, the royal pomp of punishments. They were free men, was retained, and on this account, but chosen from among the lowest consuls, praetors, and other important classes, and were often freedmen of officers — the censors excepted — ^were all the magistrate whom they attended, attended by lictors. Wlien a magis- "The dictators were preceded by trate of high rank appeared in public, twenty-four lictors ; the consuls, de- the lictors preceded him in a file, fol- cemvirs, and tribunes of the soldiers, lowing each other. It was their duty by twelve ; the prsetors and master of to clear the road of the populace, that the horse, by six ; and the vestal virgins the consul, or other ofSoer, might not by one only." — Popular Mncyclopeedia. 18 OUTLINE OF llOMAX HISTORY. the lex curiata excepted — was law. The reciprocal action of tie two bodies is expressed by Cicero thus -.—potestas in populo, auctoritas in senatu sit. The Senate. — The senate styled by Cicero the royal council (regium consilium) consisted, at aU events at the time of Tarqui- nius Prisons^, of 300 members selected from the patricians, apparently on account of their age and experience. Aristocratic birth and age were therefore the two indispensable qualifications of senator. Morus says that they were styled patres, on account of their power, and senatores on account of their age {qui ex auctorifate patres, oh cetatem senatus vocdbantur). The 300 senators were divided iuto thirty senatorial decurise. The senate deliberated on public matters, and on questions to be submitted to the people in the curice ; by its counsel and authority the king reigned. Cicero, speaking of Eomulus, says, " Multo etiam magis Hamulus patrum auctoritate consilioque regnant" Whether the senators were present at the nomination of the king and the election of the curice is matter of imcertainty; the better opinion, however, is that they were. The Feciales.— The college of the fedales was composed of twenty- one members. They were the judges of treaties, peace, truces, embassies, and the like ; it was they who declared w£ir ; it was to them that all questions of international law were re- ferred; they were the guardians of Rome's honour abroad. When a foreign power had done, or was supposed to have done, a wrong to Rome, a member of the college — at times more than one — advanced into the foreigner's territory, and demanded re- paration. If satisfaction was not given within thirty-three days, the matter was referred to the senate; if war was resolved 1 It is said that prior to his reign them a place in the senate. To dis- the senators -were only 150 in number. tlngnish them from the original fami- That Offing to the great influx of lies, whose pride refused to receive aristocratic foreigners to Rome, and them on absolute equality with them- their dissatisfaction at the status selves, they were styled "minores allotted them, Tarquinius elevated gentes" ; the others being subse- 100, or 150 to the patriciate and gave quentlv described as "gentes majores " THE REGAL PERIOD. 1^ on, the member returned to the hostile frontier, and, thrusting his lance into its soil, made the solemn declaration of war. The figure of a pig was one of the Eoman military insignia. The conclusion of a treaty of peace was always accompanied by a solemn sacrifice ; the pig was the sacrificial offering. The words of the officiating priest were, "May Jupiter smite the Eoman people, on the day that they shall break this treaty, as I this day shall smite this pig." {"In illo die, Jupiter, populum Romcumtn sic ferito, ut ego hunc porcuin hie liodie feriam") The King. — Nominated by the curiae, the election of the king was confirmed by the auctoritas of the senate,^ after which sovereign power was vested in him by the lex curiaia {lex rege). He was the chief spiritual, military, and judicial functionary. He was, as already stated, high priest {pontifex maximus), com- mander-in-chief, and chief justice. The Census, B.C. 566,— A.TI.C. 188 {temp. Senilis Tullius).-^ Hitherto the history of Eome has been a mere development of the principle of its foundation. Servius Tullius was the first innovator. He appears to have had little or no sympathy with the patrician element of the comnaunity, and to have set himself cautiously but studiously to the task of subverting it. By his order a census of the inhabitants of Eome was taken; it showed 80,000 souls. The head of each family was required, so we are told, to make a written statement on oath of the number of persons composing his family and a schedule of his property of every description, the fair estimated value of each article being stated. The penalty for omitting any article was its confiscation. From this period, the census was taken every fifth year. When the census was completed, the entire population passed in review through the Campus Martins, and underwent the ceremony of purification {populum lustrare). Females, males imder sixteen " Servius Tullius, a.tj.c. 176 — 219, elevation to the throne was secured by was the first king who became such subterfuge. Having ascended the without the previous election by the throne, however, he solicited and ob- Senate or sanction of the ourise, His tained the imperium by the lex euriata. 14 OUTLINE OF KOMAN HISTORY. who had not exchanged the prsetexta for the toga,^ and slaves, were indicated hy numher merely, and not by name. After Servius TuUius had thus taken the census, he divided the people into six parts, i.e., into five classes, determined hy their income, and a residuum consisting of those who, by reason of their poverty, were relieved from all taxation. This act secured to the king the goodwill of a numerous body, and made the memory of Servius immortal. Each class was taxed dif- ferently, and in proportion to its rank, so as to secure contri- bution to the national expenditure proportionate to the wealth of the individual. The following table acoordiug to Livy as to Classes I. to IV., and according to Dionysius as to Class V., shows, in E,oman asses and English money, taking the as at Id. the various classes. CLASS. ASSES. Englisli Money I. . . 100,000 . . £400. II. . . . 75,000 . . JE300. in. . . 50,000 . . £200. IV. . . 25,000 . . £100. V. . . 12,500 . . £50. The members of each of these classes were bound to render fully equipped inilitary infantry service free of cost to the state; ' ' ' Toga (from tegere, to cover) the garment of ■wool, ■which, in time of peace, Eoman citizens wore in public. Latterly it ■was ■worn almost exclu- sively by the male sex. Under the Emperors the toga vpent out of fashion. As only free-bom citizens ■were permitted to ■wear the toga, it ■was an honorary garment, and at the same time distinguished the Eomans from other nations ; hence gens togata is used for Koman people. As the toga ■was ■worn only in peace (the ■warrior ■wore the mguni), the ■word toga is sometimes used as a metaphor for peace, oi: peaceful citizens. The toga ■was thrown over the left shoulder and passed over the right arm ■which thus remained entirely free. From the breast do^wn- ■wards it ■was se^wed together, and, as the Eomans had nopooketp, the hollo^w called sinus in front of the breast ■was used -to put small articles in. The variety, the colour, the fineness of the wool, a,nd the ornaments attached to it, indicated the rank of the citizen. Generally it was white {toga alba). Eich persons wore ■wide togm, the poor, narrow ones. Candidates for office wore a pure white toga. The mourning toga ■was black. Persons prosecuted at law wore a dirty, or old, or grey, or in general unsightly toga (togce sordida). If it was ornamented •with a purple stripe, it was called toga pratexta. Such was worn by all superior magistrates and priests. This ornamental toga was also worn by boys and girls, the former till their seven- teenth, the latter till their fourteenth year, after which the former changed it for the toga virilis, i. e., the common simple white toga, which was also called jB«n-a and lihei-a. The triumpha- tores wore a toga adorned with gold and purple (toga picta, also palmata)." — Fopular Encyclopeedia. THE KEGAL PERIOD. 15 tlie most costly branches of that service being allotted to Class I., and so on downward. The residuum were also liable to military service, but at the cost of the state. As to the residuum, however, the authorities are not agreed. The Franchise. — As Servius taxed the people according to their individual means and arranged them in classes according to their wealth, so he endeavoured to fix the franchise upon rational and equitable principles. For that purpose he distributed the members of the various classes into what were termed centuries — in this instance, the word century signifies division, not 100 ; some say of 194, others of 199. Each century had one vote. Livy gives the following distribution : — CENXUEIES. Cavalry (KnigMs) 18 Infantry — ■ 1 Class Seniores 41 Jtmiores 41 2 Class Seniores 10 Juniores . . - 10 3 Class Seniores 10 Juniores 10 4 Class Seniores 10 Juniores 10 5 Class Seniores 15 Juniores I'' Accensi. Velati ....... 1 Buglers, etc., Seniores 1 Juniores 1 Proletarii and capite censi 1 194 The military duties of the seniores [at. 46) were confined to the defence of the city. The juniores were compelled to serve abroad. Though in all cases, as will be seen, the seniores had the same number of votes as ila.e juniores of the same class, yet the century of seniores in each instance was composed of fewer members than the corresponding century of juniores. The intention and effect was to neutralise the undue influence of numbers, to balance numerous youth by less numerous but more experienced 16 OUTLINE OP KOMAN HISTORY. age, and the comimrative poverty of the many hy the wealth of the few. The assembly of the centuries was styled the comitia centuriata. Comitia Centuriata. — These assemblies were held in the Cam- pus Martius, and were convoked by the sound of the bugle. While one section went to vote, the remainder watched in arms on the Janioulum. The suffrages were taken and calculated by centuries beginning with the knights, and then the classes in their order. It is obvious from an inspection of the above table that if the knights and the sections of the first class all voted one way, voting by the rest was useless. livy says that it was rarely necessary to call upon the second class. {Liv. lib. 26. 2.) The Comitia Curiata and Comitia Centuriata, concurrent, — The institution of the comitia centuriata was not in substitution for, but in addition to, the comitia curiata. What attributes belonged, or were supposed to belong properly, to the comitia centuriata when first instituted, history does not show. In the course of time, however, the making of laws, determining criminal charges, and the creating of magistrates, -became theirs. As their functions increased, those of the comitia curiata pro- portionately decreased. The local tribes [ex locis). — The great increase in the popula- tion induced Servius to extend the dimensions of the city. This he did by enclosing the seven hUls, after which he divided the whole into four tribes : — the Palatina, ColUna, Esg^uilina, and the Suhurana. The districts assigned to the first three were those occupied by the three ancient tribes. These foiu' urban tribes expanded with the growth of the city, but were never increased in number, with these tribes ex locis the ancient tribes ex gene- ribiis were consolidated. Henceforth the word tribes signifies the tribes ex locis. It was by tribes the taxes were levied, and the legions recruited. Each tribe had its peculiar religious system and sacrifices. The members of a tribe styled their fellows tribules, tribulis mens. In the course of time these tribes acquired political importance. THE REGAL PERIOD. 17 The Knights {Equites).—As, the knights, though at first mere cavaliy soldiers, were destined to teoome of consideraUe political importance, in short, to hold the political ground between the senators on the one hand and the body of the plebeians on the other, this appears a conYenient place to direct attention to them. Tradition tells us that the guard of Eomulus was called celeres, that it consisted of 300 cavalry, 100 being derived from each of the three original tribes, by the name of which its members were respectively known. We are told that Lucius Tarquin (a.u.c. ' 138—175) added three new centuries to the knights, composed of the youth of the wealthy and newly made patricians — ^the minorum gentium — ■" and that by Servius (a.u.c. 176 — 219) twelve other centuries, recruited from the then most wealthy plebeian families, were further added. These eighteen centuries of cavalry marched at the head of the classes and were the first to vote. That ionovations such as have been described must have been distasteful in the extreme to the patricians, need hardly be said. That the popularity of Servius with the rest of the community was certain to have been great, seems equally clear. Servius was murdered by the emissary of his son-in-law and successor at the instance of his own daughter Tullia. Tarquinius Superbus, A.TJ.C.220— 244(B.C. 534— 510).— After the murder of Servius TuUius, L. Tarquinius, subsequently styled Superbus (the proud), ascended the throne without being either elected by the senate" and the people, or sanctioned by the curice. The rights and privileges conferred upon the plebeians by Servius were abolished. The patricians rejoiced, but only for the moment. Tarquioius surrounded himself vrith a body guard, usurped all power, and took the entire administration into his own hands. He never condescended to consult, pr even to assemble the senate. By the force of his arms he overcame and captured Suessa Pometia,^ a wealthy Volscian town with a fertile and luxurious domain. By force or treachery, he made Gabii,^ a Latin town, 1 128. 18 OUTLINE OF EOMAN HISTORY. Hs own. All Latium was made to bow before tbe majesty of Eome. In order to enable him to complete the building of the magnificent temple of Jupiter on the Capitoline Hill, which hig father, during a struggle with the Latins, had vowed to erect, as also to execute other public works of magnitude, he not only exhausted his treasury, but oppressed and failed to pay his labourers. Discontent began to speak aloud. He resolved on the capture of Ardea,^ a wealthy town of the Eutulians, as a means of recouping his exhausted exchequer, and satisfying the discon- tented workmen. Siege was laid to the town. Meanwhile, the vile son of the king, Sextus Tarquinius, overcame the chaste Lucretia. By the threat that, unless she yielded to his lust, he would murder her, and lay a slave with his throat out beside her body, he accomplished his foul purpose. She immediately after sent messages to her husband and her father, begging them to visit her, accompanied by trusted friends. They went. She saw them, told her tale of woe, called upon them to avenge her, and then thrust a dagger to her heart. The facts noised abroad excited universal execration. The king was deposed, and he, together with the whole gens of the Tarquinii, was exiled. Eegal Eome was no more, (a.u.c. 244,^ — b.c. 510.) The annihilation instead of the reformation of royalty has by many been regarded as Eome's fatal error. From the moment that royalty was abolished, the distinction between patrician and plebeian became illogical. Theoretical equality was the necessary consequence : actual equality is an impossibilHy. ' 128. ( 19 ) Chapter II. THE EBPUBLIC— 1st Period. A.U.C. 244 till A.Xr.C. 354 ;-B.C. 510 till B.C. 400. The establislunent of the Consulate and the Eex Sacrifioulus, or Eex Saerorum, A.TJ.C. 245,— B.C. 509.— On the expulsion of the Tarquins, it was resolved that no one thereafter should bear in Eonie the title of king, and that, with the exception of the king's pontifical duties, all his powers should vest in two consuls, who should be annually elected, and who should alternately, for one month at a time, during the year, hold the fasces, the emblem of the imperium. The king's pontifical duties were vested in an officer styled the rex sacrifioulus, or rex saerorum. The institutions of Servius were restored. The senate was again raised to its full numerical strength — ^^300. As the new senators were taken from the eques- trian order they were in many instances plebeians. To distinguish the new from the old senators, the new were styled conscripti; hence, from this period the senate was addressed aspatres conscripti, i.e.,patres et conscripti. The two first consuls were Brutus, who fell in battle when resisting an attempt of Tarquinius to regain the throne, and Valerius who, subsequently, for his public spirit,"was surnamed Publicola. Leges Valeria, A.ir.C. 245, 246 (B.C. 509, 508).— The consul, Valerius Publioola, reduced to written law and extended to the plebeians the patrician custom oiprovocatio ad populum, by which any citizen condemned by a magistrate to be put to death, scourged, or even fined, had the right of appeal to the people {provocatio ad populum). He defined the position and powers of the qucesfores parricidii, and created a new magistracy styled c2 20 OUTLINE OF KOMAN HISTOKY. qucestores, wliose duty it was to collect the public taxes. He further enacted that any one convicted of aiming at royalty, or assuming authority not vested in him by the people, should, with all his substance, be devoted to the gods. Yalerius concluded the first treaty that Eome had with Carthage 1 (a.tj.c. 246, 247,— B.C., 608, 307). Eome, at the instance of her exiled king, was besieged by Porsenna, the king or lord of Clusium^ in Etruria, who ultimately concluded a treaty with Eome. In a.tj.c. 253 (b.c. 601) the Eomans became involved in a serious war with the Latins. A Patrician Dictator {Magister Fqpuli), A.TJ.C. 253 (B.C. 501), — In order the more effectually to enable the Eomans to cope with the Latins, all other officers were suspended, and absolute power was vested in the hands of T. Larcius. From his decision there was no appeal. He marched on foot at the head of the infantry, preceded by twenty-four lictors. Larcius was suc- ceeded by others. A. Postumius was dictator at the battle of Lake EegOIus,^ a.tj.c. 258 (b.c. 496). The results of the war were plebeian poverty ; the necessity of borrowing from the patricians ; inability to repay ; the adjudi- cation of the debtors to their creditors as bondsmen — addicti; cruel treatment by their masters, and general plebeian dis- content. In B.C. 496 an old man who had served in many wars rushed into the forum and showed the bleeding stripes on his back, the doing of his cruel patrician creditor. The plebeians rose in insurrection. The Yolscian army was marching against Eome. The patricians promised the plebeians justice. The plebeians enlisted; the Yolscians were defeated. The patricians were faithless. The plebeians rose in open revolt. The Sabines threatened Eome. The plebeians said, "Let them come, we fight no more." M. Valerius was made dictator. He was a just man ; he promised the plebeians redress ; they enlisted ; the foe was repulsed. This period is specially noteworthy, it being generally accepted as the end of Eoman tradition and the commencement of the historic period. ' 115. 2 128. THE EEPUBUC — FIRST PERIOD. 21 Tribuni Plebis, A.U.C. 260 (B.C. 494) .—Two plelbeian tribunes ■were appointed. In a.u.c. 283 (b.c. 471), the number was raised to five, i.e., one for each class, and in a.u.o. 297 (b.c. 457), that number was doubled. Their persons were declared sacred. Their houses, open day and night, were refuges to which any- one who considered himself injured might fly. They presided in the assemblies of the plebeian tribes. They had the right to intercede {intercessio) with the senate or a magistrate. They could veto the act of either. Thenceforth the senate may be regarded as the guardian of patrician interests, the tribunes as the guardians of those of the plebeians. The tribunes were elected by the centuries. Their appointment was ratified by the curim. Owing to the secession of the plebeians having taken place during the autumn of B.C. 493, the land had been completely neglected. There was a famine. Corn was imported from Sicily.^ A patrician, one Coriolanus, suggested that the ple- beians should not be allowed to have it, except in barter for their newly acquired privileges. The senate declared the sug- gestion inhuman. Comitia Tributa, A.TJ.C. 265 (B.C. 489).— The first sitting of this assembly was held with the concurrence of the senate, and for the purpose of trying the patrician Coriolanus. He failed to appear, and, in his absence, was condemned. This assembly was solely composed of plebeians convoked by tribes. It was convened without the consultation of augurs. Though, in law, the entire population was divided into local tribes, in fact, the constitution of these assemblies by tribes was purely plebeian. Plebeian Ediles (^diles PfeJm).— Another consequence of the plebeian secession was the appointment of two plebeian ediles, whose duty it was to superintend the details of the police administration ; they also acted as judges in cases referred to them by the tribunes. In B.C. 486, Sp. Cassius, in his third consulship, concluded a 1 130. 22 OUTLINE OF ROMAT^ iilSTORY. treaty ofEensiTe and defensive between the Eomans, the Latins, and the Hernicans. He also proposed an agrarian law. Its ohject was the removal of a rapidly growing abuse. The fact is, that large portions of the ager publicusj which having been con- quered in war belonged by law to all, were then in and were gradually increasing in the hands of private patricians. Cassius proposed that part of it should be taken from the patricians and distributed among those plebeians who had no landed pro- perty. The patricians took the alarm, and circulated the report that Cassius aimed at royalty. He was tried, condemned, and put to death, b.c. 485. In B.C. 479, KsBSO Fabius, who had taken part in the con- demnation of Cassius, but who- was now popular with the plebeians, proposed that the lands taken in war should be dis- tributed in equal proportions among the plebeians. "For," said he, " it is but just that those should have them, by whose sweat and blood they have been gained." Fabius was treated by the patricians as a renegade. The Fabii, 306 in number, with 4,000 clients, emigrated ; one member of the family alone remained to continue the race at Home. Unaided, the Fabii waged war against Veii.^ Success made them careless. The Etruscans, from their ambush, fell upon them. They were all massacred, b.c. 477. The consul, T. Menenius, could have saved them, but would not. A Consul impeaclied by Tribunes, A.TT.C. 278 (B.C. 476).— During a truce with the Etruscans two of the tribunes impeached T. Menenius for having neglected to save the Fabii on the Cremera.i He was fined. Impeachments by the tribunes became a practice. The lex PubUUa.— In a.u.c. 282 (b.c. 472), the tribune, Publilius Volero, proposed that the tribunes should be elected in the comiiia tribiita; and in B.C. 471, in conjunction with 0. Lsetorius, he proposed that ih.& pleleian ediks should also be elected in the comitia tributa, and that the resolutions of the » 128. THE REPUBLIC — ^FIRST PERIOD. 23 plebeians (pkbiscita) should extend to matters affecting patricians as well as plebeians, and should be binding on aU alie. The patricians in vain endeavoured to prevent those propositions being put to the vote. Yiolence was resorted to to break up the plebeian assembly. The consul seiit his lictors to seize the tribune Lsetorius. Lsetorius sent his men to arrest the consul. The plebeians seized and occupied the Capitol. The senate yielded. The proposals of the tribunes were carried ; they were sanctioned by the senate, and were known as the lex Puhlilia. For the time being that law was a dead letter, but the seed of an ample crop was sown. In the year 463 b.c. Eome was ravaged by a fearful pestilence, thousands perished. In b.c. 462 the tribune, 0. Terentillius Arsa, for the purpose of reforming the state, proposed that five competent persons should be ap- pointed to frame a code of laws binding on all citizens. The suggestion was violently opposed by the patricians year after year, till ultimately, in b.c. 453, the patricians yielded, and an embassy, it is said, was sent to Greece ' to study the working of the laws of that country. The Decemviri, A.TJ.C. 303 (B.C. 451).— For the double pur- pose of making the law uniform, and known to all, consuls, tribunes, qusestors, and ediles laid down their power for a period of one year, or rather their collective power was vested m a body of ten patricians styled decemviri. These ten worked well during their year of office, and at its close published ten tables of law, which were publicly exhibited. Their successors added two tables ; but having abused their power they were overthrown, and the former offices re-established. Two of the ten perished in prison, the remaiaing eight were sent into exile, and the estates of all were confiscated b.c. 449 (a.u.c. 305). Of these twelve tables Cicero speaks in the most enthusiastic terms. For ages they were regarded as the carmen necessarium, and were committed to memory by the Eoman youth. Unfortu- nately fragments only of them are in our possession. These fragments have been collected from different authors, through- out whose pages they are scattered. They have been reeon- 1 175. 24 OUTLINE OF ROMAN HISTORY. structed in part by conjecture and in part by certain indications given by Cicero and Dionysius. As so reconstructed they are as follows : — Table 1. Treats of the Summons before the Magister. 2. Judicial proceedings. 3. Executions. 4. The rights of a Father. 5. Inheritance and Tutelage. 6. Dominion and Possession. 7. Eeal Property Law. •8. Torts. 9. Public Law. 10. Sacred Law. 11. Marriage (supplement to the first five tables). 12. Supplement to the last five tables. The following is a concise statement of the provisions of the Twelve Tables arranged under the heads respectively of — 1. Public substantive law; 2. Private substantive law; and 3. Adjective law. THE TWELYE TABLES. PUBLIC SUBSTANTIVE lAW. Generally. — All previous enactments inconsistent with the provisions of these tables are hereby annulled (Tab. 12. 5). All laws must be general. No law shall be enacted that affects one private individual merely (9. 1). No law that inflicts capital punishment — i.e., deprivation of life, liberty, or citizenship — can be enacted by any person or persons other than the comitia centuria (9. 2). Roads, &e. — Beads must be at the least 8 feet broad and 16 feet at the turning at the end (7. 6). A space of 2^ feet at least must be left between adjacent buildings for the purpose of THE TWELVE TABLES. 25 ventilation (7. 1). A space of 5 feet must te left between adjacent fields for the purpose of access and the turning of the plough ; this vacant land cannot be acquired by usucapio (7. 4). {Provisions regulating PlantationSy Excavations, and Erections on neighbouring Plots of Land (7. 2).) Burial. — It is unlawful to burn or bury the dead within the city (10. 1), or to erect any funeral pile or sepulchre within 60 feet of another man's house, except with his consent (10. 10). Neither the sepulchre nor its vestibule can be acquired by usucapio (10. 11). The flute-players at a funeral must not exceed ten in number. The dead must not be buried or burned in more than three robes or in more than three fillets of purple (10. 3). Women must not tear their hair nor make immoderate wailings (10. 4). The bones of the deceased must not be collected for the purpose of subsequent funeral, except in the case of death in i battle or in a foreign country (10. 6, 8). [Promsions prohibiting the Embalming of the Bodies of Slaves, Funereal Banquets, expensive Libations, Coronal Garlands, and the Erection of Incense Altars (10. 6).) If the deceased has either personally, or by his slaves or horses, obtained any public trophy, he shall be entitled to the honours it confers (10. 7). Gold must not be buried with the dead, but if the teeth are fastened with gold that may be either buried or burned (10. 9). The wood of the funeral pile must not be smoothed (10. 2), When lawful to KiU. — It is lawful to kill any one committing a robbery by night (8. 12). A thief surprised during the day must not be put to death unless he attempts to defend himself with arms (8. 3). The Penalty of Death. — Death shall be the penalty for :— (1) Exciting an enemy against the Eoman people (9. 5). (2) Dehvering a citizen to the enemy (9. 5). (3) For seditious gatherings by night in the city (8. 26). (4) For the acceptance of a bribe by a judge or arbitrator (9. 3). (5) For arson of a house or haystack near a house. In this case the death shall be by fire and preceded by scourging (8. 10). 26 OUTLINE OF ROMAN HISTORY. (6) For depasturing, or cutting a neighbour's crops By night, when the offender is of the age of puberty; if under that age, scourging at the discretion of the magistrates, and fine of double the value of the damage done shall be substituted (8. 9). (7) For fraud by a patron on his client. Let him be sacrificed to the gods, sacer esto (8. 21). (8) For the practice of enchantment or the use of poisonous. drugs (8. 21). (9) For perjury. The perjured shall be thrown from the Tarpeian rock (8. 23). (10) For homicide (8.24). (11) Libellers and public defamers are liable to capital punishment (8. 1). ' A person whose limb is broken by another may retaliate unless compensation is offered (8. 2). Theft. — Theft is divided into two classes, vi^., furtam mani- festum and furtum nee manifestum (8. 15).^ A freeman taken in the act of theft shall be scourged and made over by addictio to the person he has robbed. A slave shall be scourged and thrown from the Tarpeian rock. Those under the age of puberty shall, at the discretion of the magisier, be scourged and condemned in damages (8. 14). A theft of private property may be treated as a tort merely, or be settled between the parties. (See^os^, "Theft" and "Adjective Law.") Usury. — The highest legal interest shall be 8J per centum per annum. The penalty for exceeding is the quadruple (8. 18). PRIVATE SUBSTANTIVE LAW. Societies. — The members of a corporation or college {sodales) are free to make what rules binding upon themselves they may think fit, provided that they do not contravene the law (8. 27). Marriage. — Marriage between patricians and plebeians is for- bidden (11. 1). The marital power over a woman may be acquired by usus (6. 4), i.e., by cohabitation for one year. By absenting herseK from her husband's house for three successive 1 The distinction between fwrtum stances attending the act, and the conceptum, oblatum, and non exhibittm, particular action to which eaoTi gave had reference to the accidental oirCum- rise. See Index " Purtum." THE TWELVE TABLES. 27 nights in eaoh year, a woman can prevent her husband ever acquiring marital power over her (6. 4). A child horn more than ten months after the death of its reputed father is Ule- gitimate. Monstrous or deformed offspring are to be at once destroyed (4. 1). So long as a child is in the patria potestas the father may imprison, scourge, sell, or even take his life (4. 2). Three consecutive sales of the son by the father shall release the son from the patria potestas (4. 3). All females, vestals alone excepted, are in perpetual tutelage. A vestal is free both from tutelage and from the patria potestas (5. 1). Res mancipi of females cannot be acquired by usucapio, except when delivered to the possessor by the woman herself with the sanction of her tutor (5. 2). Idiots. — The custody of an idiot and his property, there being no curator [mstos) belongs to the agnates, and in default of agnates to the gentiles (5. 7). Usuoapio. — Possession by a citizen for two years in the case of land, and for one year in the case of other 'property, vests it in the possessor (6. 3). Possession by an alien, however long, cannot vest in him the property of a citizen (6. 6). Title to stolen goods cannot be acquired by usuoapio (8. 17). Contracts, Purchase and Sale. — In the case of things sold the property does not pass till payment (6. 10). Nexum and Mancipium.' — In the case of nexum and mancipium, ' By the Eoman law, as by most witnesses. That form of contracting other legal systems, all things are, as to was styled " hy the brass and balance ' ' their alienability, divided into two [per ms et libram). As every contract classes, viz., those that may be alien- must be for actual or assumed valuable ated by simple handing over, and those consideration, that consideration was the alienation of which must be evi- supposed to be placed in the scale, and denced by certain formalities. These to balance the value of that for which classes were respectively designated by it was given. It in fact, however, was the expressions res nee mancipi and res the reciprocal promise that bound mancipi. ■ The res mancipi were lands, either party. It was the libripens and houses, slaves, and ordinary beasts of the witnesses who made the bargain burden, while all other things taken binding by their ability to testify as to separately, and not as a universitas, what it was. A contract, accompanied were res nee mancipi. The solemn form by the ceremony per ms et libram, was required in -the case of res mancipi was styled nexum. The only other method either maneipatio or injure cessio. The of alienating res mancipi was_ by a persons present were — the contracting formal ceremony before a magistrate, parties, an independent intermediary, styled injwe cessio. the balance holder [libripens)^ and five 28 OUTLINE OF ROMAN HISTORY. the words used at the time of the weighing out constitute the contract— the law (6. 1). Either party subsequently denying that he used the language actually used renders himself liable to a penalty of double the amount of the value of the subject of the contract (6. 2). Rights in Alieno Solo. — When a road is rendered impassable, the owner of a right of way may cross where he pleases (7. 6). Branches of trees over-hanging adjoining property must be pruned up to fifteen feet from the ground (7. 8). The owner of adjacent property is entitled to a guarantee against threatened damage from the aqueduct and other works of his neigh- bour (7. 7). The proprietor of fruit has the right to go on to his- neighbour's land to pick up the fruit that falls thereon from his trees (7. 9). Succession. — ^A father may by will dispose of his entire pro- perty as he pleases, and may appoint such tutors as he may think fit (5. 3). In default of appointment of a tutor the agnates are the legitimate tutors (5.6). In the event of intestacy the property of the deceased goes to the suus hmres ; in default of suus hwres, it goes to the nearest agnate (5. 4) ; in default of agnates, to the gentiles (5. 5). The inheritance is divisible among the heirs. Division may be enforced by the actio familice erciscundm (5. 9 and 10). The patron succeeds to the inheritance of the enfranchised dying without hceres suus. ADJECTIVE LAW. Generally. — Injure cessio and mancipatio are confirmed (6. 11). Every citizen has the right to institute an action to remove a sus- pected tutor. The penalty upon a tutor convicted of defalcation is double the value of the property abstracted (8. 20). An y one who, being summoned in Jus (commonly translated, before a magister'^), refuses to go, may, should he attempt flight, be ' MaguUr. — The term magisfer has styled magister equitmn ; when the em- variOus significations in Roman law, pire was divided hy Constantine into •viz. : a dictator was styled magister f onr praetorian prsef ecturates, the ex- populi; the head of the cavalry was pression magister miUtitm designated THE TWELVE TABLES. 29 arrested in tlie presence of witnesses and detained by force. If tke defendant is infirm or ill, tlie plaiatifi must provide a con- veyance, but is not bound to provide a covered conveyance. "Wlien the parties cannot come to terms, the action must be entered for trial either in the comitium or in the forum (a place where justice was administered) before midday. If the case is not finished before sunset it shall be adjourned, in which case bail for the future attendance may be demanded. A rich man must be vindex {bail) for another rich man. Any one may be bail for aproletarius (Tab. 1). Serious illness, or an engage- ment with a peregrinus, is ground for adjournment. Witnesses must be summoned twenty-seven days before the hearing. No trial can commence till each party has deposited the sacranientum (Tab. 2). Interim Possession. — In an action to try the right to property (manuum consertio) the magister may, pending the litigation, give the possession to which of the litigants he shall think fit. In the case of a claim to liberty, the magister shall give the interim possession in favour of liberty (6. 6). Wrongful Conversion. — Specific chattels, the property of one in the possession of another without the owner's consent, may be recovered by vindicatio. Timber of one wrongfully attached to a bunding of another, or used to support a vine, cannot be removed, but the owner may bring an action against the user to recover the double value (6. 7, 9). Boundaries. — In the case of dispute as to boundaries, it Is the duty of the magister to appoint three arbitrators to settle the matter (7. 5). Eight to Chattels. — In the case of disputed right to possession of a chattel the magister shall appoint three arbitrators to hear the commander of the infantry ; at it is never, I believe, used as synony- times it is almost equivalent to our mous with judex. When not used as term "trustee in bankruptcy"; as a technical legal term, the context corn- here used, it indicates a legal func- monly suffices to indicate the sense in tionary, but not a judge [judex), for -which it is used. 30 OUTLINE OF ROMAN HISTORY. and determine. The measure of damage is a sum equal to douUe the profits (12. 3). Bodily Injuries.— The measure of damages in the case of the fractui-e of a hone (of a tooth) of a freeman, shall he 300 asses ; in the case of a slave, 150 (8. 3). In the case of the slightest hodily injury, the measure of damages shall be 25 asses (8. 4). Theft. — In the case oifurtum nee manifestum the penalty shall be double the value of the thing stolen (8. 16). For theft or damage by a slave his master must be sued by an actio noxalis (12. 2). Fraudulent Bailee. — A fraudulent bailee shall be liable to a penalty equal to double the amount of the damage sustained (8. 19). Damage to Trees. — The penalty for wrongfully felling the tree of another is 25 asses (8. 11). Depasturing, — An action lies for depasturing on a neighbour's land (8. 7). Pignoris Capio. — When a beast has been let on hire for the express object of devoting the hire money to the purposes of sacrifices, or when a beast has been sold for the purpose of being sacrificed, and the purchaser in the one ease, the hirer in the other, omits to pay the vendor or bailor, the latter shall be entitled to the pignoris capio ^ (12. 1). The penalty for con- secrating anything that is the subject of a suit is double its value (12. 4). 1 Mmus injectio and pignoris eapio for sacrificial purposes, but had not were words of execution— the former paid for it, might be seined by the on the person, the latter on the goods vendor of the beast to satisfy its price ■ of a debtor. Rgnons capio, the sei- tax-gatherers might seize property for zure by a private person of property the purposes of securing taxes f soldiers of his debtor, was only lawtul in a might seize the properi>y of their pay- few defined oases, and that on the masters for the pipose of seomins ground of public policy: «.?., the pro- their pay, &o. («s miUtare, ms eauestrl perty of one who had bought a beast ms hordiarium). (See Index.) THE TWELVE TABLES. 31 Negligence. — In the ease of damage done througli negligence, damages are recoverable for tlie damage sustained (8. 6). When the -wrongdoer is too poor to make good the damage done, e. g., by setting fire to the house of another, he shall be liable to moderate chastisement (8. 10). Animals. — In the case of damage done by a quadruped, compensation may be recovered from its owner, or the animal be forfeited (8. 6). Witnesses. — One who has been a witness, or who has acted as scalebearer {Mbripens), and refuses to testify to the facts, shall be branded as infamous, and declared incapable of giving or receiving testimony (8. 22). Judgment Debtors. — A judgment debtor, in a case of money lent, shall have thirty days' grace within which to pay, or give security ; on default, the judgment creditor may forcibly {manus injectio) take the debtor before the magister agaia. If he then neither pays nor gives security, his creditor may keep him in chains for two months, during which period the debtor may live as he pleases, at his own cost. If he is destitute his creditor must supply him with one pound of bread daily. If the debt is not then paid, the magister shall pass the sentence of addictio (by which the debtor became the absolute property of his creditor), after which the creditor may either sell his debtor to any foreigner resident beyond the Tiber,^ or may kill him. If the debtor has more than one creditor, his creditors may divide his body between them (Tab. 3). Appeal. — A right of appeal to the people in the case of any penal sentence appears to have been given (9. 4). It is said that, by the provisions of the twelve Tables, all the patricians and their clients, as well as the plebeians, thenceforth 128. 32 OUTLINE OV ROMAN HISTORY. became members of the local tribes: be tbat as it may, the consuls Valerius and Horatius secured, or, perhaps more correctly, endeavoured to secure to the plebiscita a force they had not previously enjoyed. Lex Valeria Horatia— Da Plebiscitis, A.U.C. 305 (B.C. 449).— This law enacted that the plebiscita, i. e., the laws promulgated by the plebeian assembly, the comitia tributa, should be obligatory on all citizens {ut quod fributim plebes Jussisset, populum teneret). The Canuleian Law — De Connubio Patrum et Plebis, A.U.C. 309 (B.C. 445). — ^At the instance of the tribune Canuleius, the provision in the Twelve Tables prohibiting marriage between the patricians and the plebeians was abrogated. The colleagues of OanuleiUs also proposed that thenceforth one of the consuls should be a plebeian. The opposition of the patricians led to a compromise. Military Tribunes (Tribuni Militum), A.U.C. 310 (B.C. 444).— Military tribunes with consular power {tribuni militares consulari potestate) elected from either order were declared eligible, in lieu of consuls, at the discretion of the senate. The patricians, fearing that the plebeians would shortly lay claim to the consulship, resolved to sever from it one of the most important of the consul's functions, and to create as a distinct office that of censor. The Censors {Censores), A.U.C. 311 (B.C. 443).— The censors, two in number, were elected by the comitia centuriata from the members of the senate (patricians). The same senator could not occupy the post twice. The term of office was five years, i. e., from census to census. They were the guardians of the public and private morals. The census determined the rank of every citizen and his status in society. The duration of the office was reduced in b.c. 434 to eighteen months, so that, from that date, in every lustrum, or period of five years, there were three and a half years during which there were no censors. In B.C. 440, famine drove many of the poor to commit suicide. THE REPUBLIC. 33 In B.C. 439, L. Q. Oinoinnatus was appointed dictator. In B.C. 426, the Eomans were defeated before Yeii.^ Nothing but wars of little note marks the history of Eome till the year B.C. 407, when the senate, unsolicited, issued a decree that thenceforth the soldiers should receive pay from the public treasury. In b.c. 128. N, 34 OUTLINE OF ROMAN HISTORY. Chapiter III. THE 'EEPHBLIG—cmtinued. THE FOURTH CENTURY B.C. i, e., A.U.C. 3.55 till A.U.C. 454 ;— B.C. 399 tiU B.C. 300, In B.C. 396, after a siege of nine years, Yeii^ succumbed to the Eomans, then led by the dictator Camillus. The Veientiae ter- ritory was distributed in lots of seven jugera each among the plebeians.- Eegarding themselves as invincible, the Eomans refused satis- faction to the Gauls for a wrong done to them by the Eoman ambassador. Fabius Brennus at the head of 70,000 Grauls marched on Eome. The. Eomans went out to meet him, but at the little river AUia,^ seeing the strength of the foe, the Eomans threw down their arms and fled on the 18th July, u.c. 390 {dies Alliensis) . The Gauls seized Eome and burned it to the ground. The Capitol alone stood out, defended by 1,000 men, till, pressed by hunger and disease, many of the Gauls retired from Eome. It is said that at the moment that Eome was weighing out the 1,000 lbs. of gold for which Brennus had promised to depart, Camillus, recalled from exile, appeared before Eome at the head of an army by whom the Gauls were defeated ; there, and again on the road to Gabii.^ Neither Polybius nor Diodorus makes any mention of- this alleged interposition of Camillus. With the exception of the Sabines and some Latin towns, all the neighbouring towns and tribes endeavoured to recover their independence in the hour of Eome's distress. Between this period and b.c. 376 Eome practically recovered her external 1 128. THE REPUBLIC. 35 influence. Within, however, the poverty of the lower orders, consequent on the destruction and rehuilding of Eome, had revived the old cry — the oppression of the rich. In that year (b.c. 376), L. Licinius Stolo and L. Sextius were elected tribunes. They proposed three laws, viz. : — ^I. That the interest already paid by debtors should be deducted from the priQcipal debt, and that the remainder should be paid off by three yearly instalments. II. That no one should be allowed to possess more than 500 jugem of the public land. III. That thenceforth consuls should be elected instead of consular tribunes, and that one of the consuls should always be a ple- beian. These propositions were stoutly resisted by the patri- cians, and at their instance by the other tribunes. Licinius and Sextius were re-elected year by year. In B.C. 369, the tribunes were equally divided as to the propositions, when Licinius brought forward a fourth bill, suggesting that instead of the two patricians who till then had been entrusted with the keeping of the Sibylline books,^ ten ■ ' ' Sibyllm, certain women said . to have been, inspired by beaven with the knowledge of futurity. They flourished in different parts of the world, but their number is unknown. Plato speaks of one, others of two, Pliny of three, M\\a.u of four, and Varro of ten, an opinion which is universally adopted by the learned. These ten Sibyls generally resided in the follow- ing places : Persia," Libya, Delphi, Cunse in Italy, Erythraea, Samos, Cumse in JElia, Marpessa on Helles- pont, Ancyra in Phrygia, and Tiburtis. The most celebrated of the Sibyls is that of Cumae in Italy, whom some have called by the different names of Amalthsea, Demophile, Herophile, Daphne, Manto, Phemonoe, and Dei- phobe. It is said that Apollo became enamoured of her, and that, to make her sensible to his passion, he offered to give her whatever she should ask. The Sibyl demanded to live as many years as she had grains of sand in her hand, but unfortunately forgot to ask for the enjoyment of the health, vigour, and bloom of which she was then in possession. The god granted her her request, but she refused to gratify the passion of her lover, though he offered her perpetual youth and beauty. Some time after she became old and decrepit ; her form decayed ; melancholy, paleness, and haggard looks succeeded to bloom and cheer- fulness. She had already lived about 700 years when .Slneas came to Italy, and some have imagined she had three centuries more to live before her years would be as numerous as the grains of sand which she had in .her hand; She gave JEneas instructions how to find his father in the infernal regions, and even conducted him to the entrance of hell. It was usual for the Sibyl to write her prophecies on leaves which she placed at the entrance to her cave, and it required particular care in such as consulted her to take up these leaves before they were dispersed by the wind, as their meaning then became incom- prehensible. According to the most authentic historians of the Eoraan Re- public, one of the Sibyls came to the palace of Tarquin the Second, with nine volumes which she offered to sell for a very high, price. The monarch disregarded her, and she immediately disappeared, and soon after returned, d2 36 OUTLINK OF ROMAN HISTOKY. custodians should be appointed; of whom one-half should be plebeians. This proposition was to meet the patrician objection that the plebeians, not having' the same auguries as the patri- cians, nor, consequently, the knowledge necessary to enable them to interpret the wiE of the gods, were not qualified to become consuls. The existing siege of Velitrse^ was the excuse offered for postponing the discussion of these propositions. That siege- over, the tribunes returned to the charge. The Grauls re- appeared : M. Furius OamiUus, appointed for the fifth time dictator, defeated and dispersed them. Licinius and Sextius were re-elected for the tenth time. The rogations became law. The Licinian Law — Plebeians admitted to the Consulate, A.TT.C. 387 (B.C. 367).— L. Sextius was elected the first plebeian consul, B.C. 363. The patricians had, however, secured a compromise. Consular power was again lessened. To whom, it was asked, must the knowledge of the law and the right of interpreting it belong ? According to the patricians, there could be' but one answer: — To them, and to- them alone. The judicial functions of the consuls were therefore vested in a new officer — a.prmtor. ■when she had burned three of the loss which the puhKe seemed to have volumes. She asked the same price sustained, commissioners were imme- f or the remaining six books, and when diately sent to different parts of Greece, Taxquin refused to buy them, she to collect whatever verses could be burned three more, and still persisted found of the inspired writings of the in demanding the same sum of money Sibyls. The fate , of these Sibylline for the three that were left. verses, which were collected after the ' ' This extraordinary behaviour as- conflagration of the Capitol, is nn- tonished Tarqniu ; he bought the known. There are now eight books books, and the Sibyl instantly vanished; of Sibylline verses extant, but they and never after appeared to the world. are universally reckoned spurious. These books were preserved with great They speak so plainly of our Saviour, care by the monarch, and called the of his sufferings and of his death, as Sibylline verses. A college of priests even to surpass far the sublime pre- was appointed to have the care of dictions of Isaiah in minuteness of them, and such reverence did the description ; and therefore from this Romans entertain for these prophetic very circumstance it is evident that books that they were consulted with they were composed in the second cen- the greatest solemnity, but only when tury by some of the followers of the State seemed to be in danger. Christianity, who wished to convince When the Capitol was burnt in the the heathen of their error, by assisting troubles of SyUa, the Sibylline verses, the cause of truth with the arms of which were deposited there, perished pious artifice." — Lempriere. in the conflagration ; and to repair the i 128. THE REPUBLIC. 37 The First Praetor Urbanus, A.TJ.C. 387 (B.C. 367).— According to Pomponius, this oflScer was styled urbanus because of his administering the law in the city, " qui urbanus appellatus est, quod in urbej'us redderet." He was nominated by the centuries, and selected from the patrician order. He convoked the senate and presided over it. He assembled a comitia, and presented to them suggestions as to new laws. LexLicinia— De Modo Agrorum, A.TJ.C. 387 (B.C. 367). — This law prohibited the possession by any one man of more than 500 jugera of land under a penalty of 10,000 asses. It appears to have required the sale by the rich of all the land possessed by them over 500 jugera, and to have prescribed the mode in which it should be sold ; the object being to bring land by purchase within the reach of the poorer classes. Licinius was the first who was sentenced for the violation of his own law. He had 1,000 jugera, 500 of which, in order to conform to the letter of the law of which he was the author, he placed in his son's name. He was fined 10,000 asses. Lex Licinia— De ^re Alieno, A.U.C. 387 (B.C. 367).— This law enacted that money already paid under the head of interest should be taken in reduction of the capital, and that the surplus should be paid by equal instalments within three years. Though of undoubted benefit to many, this law was insufficient to meet the case, for we find that in b.c. 357 the legal interest was fixed at ten per cent, per annum ; that in b.c. 347 it was reduced to five per cent. ; and that various expedients were subsequently resorted to to relieve the poor. Lex Licinia— The SibylUne Verses, A.ir.C. 387 (B.C. 367).— The Sibylline books or verses were entrusted to the custody of ten persons, of whom one-half were plebeians. .ffidiles Curules, A.U.C. 388 (B.C. 366).— Two patrician wdiles were appointed along with the plebeian cediles, with whom they shared the criminal jurisdiction in annual rotation. They had analogous but superior functions. In addition they had the 38 OUTLINE OF EOMAN HISTORY. superintendence of the police, tlie temples, and the great festivals. First Plebeian Dictator.— B.C. 356 saw the first plebeian dictator. First Plebeian Censor. — b.o. 3^1 saw the first plebeian censor. Between b.c. 362 and B.C. 343 Eome waged war against the Hemicans,! the Tiburtines,' the Etruscans of Tarquinii,i the Faliscans,^ the Privematans,^ and the Gauls, in each instance with ultimate success. These may be regarded as the schools in which Eome learned the art of war, the Grauls being her best teachers. Eome's first great military enterprise is to come — the Sam- nite^ war. The Samnites were at that time the most powerful and warlike nation in Italy. Lucania * and Campania,^ though then independent nations, had been Samnite colonies. In B.C. 343 war was declared. Two consular armies took the field against the Samnites. M. Valerius Corvas met the Samnites on Mount Graurus, in Campania. The struggle com- menced which was to determine whether Eome or Samnium should have the sovereignty of Italy. Such was the position of the ground taken by the Eomans that between victory and annihilation there was no choice. Both armies fought through- out the day, resolved to conquer or to die. The night was fast approaching, thousands had fallen on either side. The Eomans made a final and desperate attack. The Samnites were routed. Cossus, thanks to the tactics of the intrepid F. Decius Mus,' came up to the other Samnite army. It is said that 30,000 of the foe were cut to pieces. The next year the Eoman garrison at Capua ^ revolted. Debt and its horried consequences were the alleged causes. Valerius appeased the insm-gents by a general cancelling of debts, Rome or Latium? B.C. 340— 338.— Next came the question as to whether Eome should be a mere Latin town, or sovereign ' 128. 8 U3. THE EEFUBLIO. 39 6f the whole of Latiiun.^ The Latins demanded that one of the consuls and half of the senate should he Latins. Eome declared war. Her armies were successful. The Latin con- federacy broke up. The towns surrendered one after another. The Latin domain lands were distributed among the Eomans. The connuhium and the commercium among the Latin towns were abolished. The inhabitants of some of the towns were raised to the rank of Eoman citizens, other towns were weakened and humbled. Leges Publiliae, A.TJ.C. 415 (B.C. 339).— The dictator Pub- UKus PhiLo, a patrician, and an exceedingly popular man, was, accordiug to Livy, the author of three laws favourable to the plebeians and adverse to the patricians (secundissimus plebei, adversus noUlitati), viz. : — I. That the censors should be ple- bians ; some say, that one of them should be. II. That the plebiscita should be binding on aQ.—ui plebiscita omnes .quirites tenereni. This law appears to have been in the same terms as the Yalerian law of B.C. 449, and the subsequent -Hortensian law of B.C. 287. III. That the curicB should confirm the de- cision of the centuries previously to voting ; in other words, it abolished the veto of the curice on laws passed by the centuries. ■ First Plebeian Praetor.— a.u.c. 417 (b.c. 337), saw the first plebeian praetor. Lex PetiUia Papiria— De Nexis, A.TJ.C. 428 (B.C. 326).— The practice of debtors assigning themselves jjer ces et libram to their creditors as security, or satisfaction, for debt was declared illegal. The servitude of the nsod was thus abolished. The Second Samnite^ War.— The years b.c. 326 and b.c. 304 are respectively given as the date of the beginning and close of the second great struggle between the Eomans and the Samnites for supremacy. Of all the battles fought between them during these twenty-two years, that which stands out most conspicuously 1 128 ^ 143. 40 OUTLINE OF ROMAN HISTOEY. was ioughi, in the narrow valley of Caudium {furculce Caudinw) B.C. 324. Hemmed in on every side the Eomans were com- pletely defeated and compelled to capitulate. One-half of that Boman army was cut to pieces. The survivors were compelled to pass imder the yoke, the then ordinary mode in Italy of dis- gracing a defeated army. The nohle-hearted C. Pontius, the Samnite general, proposed terms of peace, which were accepted and sworn to hy the consuls ; but, when they, with the remnant of their army returned to Eome, the whole population put on mourning. The senate refused to ratify the peace ; they not merely resolved to sacrifice the 600 hostages left by the consuls, but decreed that those who had been parties to the treaty should be delivered up to the Samnites as persons who had deceived them. Samnium was not the only matter on the Roman hands during those twenty-two years ; they had several minor wars, in addi- tion to which the Etruscan' war broke out in B.C. 311. Appius Claudius the Bliiid, A.U.C. 442 (B.C. 312).— In B.C. 312, Appius Claudius, who had been elected censor in b.c. 313, dis- tributed the whole body of the lower order among the tribes, possibly to increase the number of those entitled to serve in the army. Freedmen, as such, were not eligible. He also excluded from the list of senators the names of a large number of patricians, and substituted for them sons of freedmen. This list of senators was, however, set aside in the following year. He built the road from Eome to Capua, called " The queen of roads," and named after bi-m ua Appia. He built an aqueduct eight miles long — ^the oldest at Eome — the aqua Appia. He raised Cn. Flavins, a scribe, the son of a freedman, to the curiile cedilesMp. Jus Flavianum, A.U.C. 450 (B.C. 304). — Cnseus Flavins pub- lished a book, or list of the dies fasti and nefasti, called the "fastorum lihri," and caused it to be exhibited in the forum on a tablet covered with gypsum. By this act, as Cicero expresses ' 127. THE REPUBLIC. 41 it, "he put out the crows' eyes" {qui cornimm oculos confixerit). By which we may take it to be intended to be understood, that he put an end to patrician mystery, not to say imposition, in relation to the dies fasti and nefasti. In addition to this calendar, he made and published a collec- tion of the formulcB of the legis actiones, which theretofore had been handed down by tradition and kept as knowledge peculiar to the patricians. First Plebeian Pontiff and Augurs — Lex Ogulnia, A.U.C. 454 (B.C. 300). — To the tribunes Q. and C. Ogulnius the plebeians were indebted for the removal of the last trace of their political inferiority. These tribunes carried a law by which the number of the augurs was increased to nine, and that of the pontiffs to eight in addition to the ponti/ex maximus. The law provided that four of the pontiffs and five of the augurs should always be plebeians. 42 OUTLINE OF ROMAN HISTORY. Chapter IV. THE 'KEPJJELlG—contvmed. THE THIRD CENTUBY B.C. i.e., A.U.C. 455 tUl A.XJ.C. 554 ;— B.C. 399 tiU B.C. 200. The Orators, Historians, Philosophers, Poets, &c., of the Period. NEVIUS (CNEIUS), poet, first half of the third century. PLAUTUS (MARCUS ACOESrO), comic writer, floTmshed ahout B.C. 20. CATO, orator and prose writer, hoiii b.o. 232, died b.o. 148. ENNIUS (QUINTUS), poet and historian, bom e.g. 239, regarded by the Romans as the father of Roman poetry. LIVIUS ANDRONICUS, the first Roman dramatist of whom we have any knowledge ; is said to have been taken prisoner at the capture of Tarentum, B.C. 272, and carried to Rome. In B.C. 299, an axmy of Gauls, induced by- their countrymen ■who had settled in Italy, crossed the Alps and, at the instance of the Etruscans, marched into the Eoman territory. The Romans allowed their territory to he laid waste by them. Laden with booty, the Gauls returned to their homes. The Romans wreaked their vengeance on the Etruscans. The Third and Last Sanmite War. — Between b.c. 298 and b.c. 290, the third and last Samnite War was -waged with varying success, ultimately terminating in the triumph of the lioman arms, and the practical annexation of Samnium to Rome. In B.C. 290, the Sabines revolted, were subdued, many made prisoners, and large tracts of land were annexed. Rome was now the mistress of central Italy. THE REPUBLIC. 43 That these perpetual wars should bring in their wake famine, poverty, disease, and consequent discontent, was but natural. The plebeians once more, and for the last time, seceded, and encamped on the Janiculum, b.c. 287. Q. Hortensius was appointed dictator. Lex Hortensla— De Plebiscitis, A.TJ.C. 468 (B.C. 286). — This law enacted that the pleUscita should be binding on all Eomans. {Utplebiscita omnes quirites tenerent.) From this date that law appears not to have been questioned. Previous laws apparently to the same effect, viz., the Lex Soratia and the Lex PuUilia, had either fallen short of the terms of the Lex Hortensia or had been disregaxded. It would appear that the Lex Hortensia abolished the veto of the senate upon legislative measures passed by the plebeian assembly. Rome Mistress of all Italy.-r-Between b.c. 286 and b.c. 266, Eome made herself mistress of the whole of Italy proper [Italia propria), i.e., that portion of Europe which is washed by the waters of the Mediterranean and the Adriatic, south of a line drawn overland between, and connecting, the little streams Macra ^ and Eubicon.^ Italy [Italia) in the wider sense of the term, that in which it was understood ia the days of imperial Rome, comprehended the whole of the territory south of the Alps. It was in b.c. 281, that Pyrrhus, King of Epirus,° one of the greatest generals of antiquity, the author of a work on military tactics, crossed over into Italy to aid the Tarentines ^ agaiast Eome. It was he who, after a victory over the Eomans on the banks of the Siris,* when congratulated on his success, said : — " One more such .victory, and I shall be obliged to return to Epirus without a single soldier." Again, referring to the Roman army, he said : — " With such soldiers, the world would be mine, and it would belong to the Eomans if I were their commander." In B.C. 276, Pyrrhus was completely defeated by Ourius 1 112. 2 127. ' 159. * 144. 44 OUILINE OF KOMAN HISTOKY. Dentatus. His camp was taken, two of his elephants were killed, and four that were captured alive adorned the consul's triumph. The Fourth and Last Samnite Kising.— In B.C. 868, the Sam- nites rose for the fourth and last time. It was but a feeble effort. Though at this period the Eomans had no literature of their own, it is said that they were familiar with that of Ghreece. Architecture, sculpture, and painting, however, had made con- siderable strides at Eome. The First Punic War, B.C. 264 to B.C. 241.— (Punic from Pceni, Phcenicians — Carthage ' was a Phcenician colony.) The first Punic war covers a period of twenty-three years. It was Eome's first great departure. It was the foundation of Home's world-wide greatness. The patricians and the plebeians were at one. ■Pome had no other Italian foe to conquer. To exist without some military enterprise on hand appeared to the Eomans an impossibility. The republics of Eome and Carthage had long regarded each other with jealousy. Excepting the little king- dom of Hiero of Syracuse ^ and the north-eastern district governed by the Mamertines of Messana,^ the whole of the fair island of Sicily' was under the sway of the Carthaginians. Hiero had declared war against the Mamertines. The Mamer- tines were divided among themselves ; one section besought the aid of Eome, the other that of Carthage. Hiero made peace with Messana. Eome coveted Sicily, and made war on the Carthaginians b.o. 263. Hiero became ihe aUy of Eome. Eome had no fleet : Carthage had a fine fleet, but only mer- cenaries. Hannibal defended Agrigentum ; ' but, after a siege of seven months, he was compelled to surrender to the Eomans : 25,000 captives are said to have been sold into slavery. The Car- thaginian fleet ravaged the coasts of Italy. The senate resolved ' 115. 2 145. 3 130. THE REPUBLIC. 45 to bTiild a fleet and to fight the Carthaginians on their own element. 130 ships were built. Bach- quinquereme had 300 rowers and 200 marines. The Carthaginians laughed at the Eoman fleet. C. Duilius furnished each of his ships with a hoarding bridge. The Carthaginians hastened to the battle as to certain victory. Duilius grappled his boarding bridges. Thirty of the Carthaginian ships were captured in the first attack, others soon followed ; 3,000 Carthaginians were killed and 7,000 were taken prisoners. In B.C. 259 a Carthaginian fleet, under Hannibal, was de- stroyed. The Carthaginian Hamilcar defeated the Eomans on land. In b.c. 257 nearly half of Sicily was in the hands of the Carthaginians; In b.c. 256 the greatest naval action that the then world had witnessed was fought between the Eomans and the Carthaginians oif Ecnomus.^ The Carthaginians were defeated. The Eomans landed in Africa. Xanthippus, of Sparta,^ was engaged in the Carthaginian service. He taught them the use of elephants. He defeated the Eomans under Eegulus, and, loaded with rich presents, prudently returned, to his own country. The Eoman fleet, of between 200 and 300 vessels, sailed to the rescue of the garrison of Clypea.' It encountered and over- came a Carthaginian fleet, but finally perished in a storm. A new fleet of 260 vessels was built. In b.c. 252 the consuls again descended upon Africa, but, returning with their booty, 150 of their ships were wrecked. In b.c. 250 the consul Metellus defeated the Carthaginians at Panormus : ^ 104 of their 130 ele- phants were taken in triumph to Eome. In b,c. 250 Eome ordered the building of a new fleet of 200 ships. In b.c. 249 P. Claudius Pulcher was defeated at Drepana ^ and lost ninety- three of his ships. The Carthaginians, for the time being, regained the ascendancy in Sicily. Hannibal captured the Eoman provision ships at Panormus.^ Carthabo pursued a convoy of 800 transports ; he destroyed a large number of them and seven ships of war. C. Junius, the Eoman consul, lost all his fleet, save two ships, in a storm. In b.c. 248 Carthabo landed and ravaged various parts of Italy. Hamilcar, entrusted I 130. ' 175. = 115. 46 OUTLINE UV ROMAN HISTOKY. with the supreme command of the Carthaginian forces, com- pletely paralysed the Eomans, and never lost an opportunity of damaging them. In b.c. 243 HamUcar was defeated by 0. Fundanius. In b.c. 242 it was decreed for a third time that a Eoman fleet should he huilt. The Eepublic lacked the means. The money was borrowed. The Carthaginians were defeated, 120 of their ships were sunk, the rest dispersed ; 14,000 of their men were killed, 32,000 of them were taken prisoners. This victory, gained on the 10th of- March, b.c. 241, decided the issue. The Carthaginians sued for peace. It was granted to Hamil- car on the conditions, inter alia, 1st, that the Carthaginians should evacuate Sicily and all the islands between Sicily and Carthage ; 2nd, all Eoman prisoners should be restored without ransom; 3rd, Carthage should pay 3,200 Euboean talents. Such are some of the incidents of the first Punic war, during which Eom^ lost no fewer than 700 ships. There. were men in those days in the Eoman world. It is not pleasing to be compelled to take note of another phase of contemporaneous Eoman life. But what, we ask, had been going on at Eome during this desperate and glorious struggle ? In the year b.c. 264, or the next, the state ceased to defray the cost of the public festivals and games. That burden was thenceforth cast on the shoulders of the sediles, as none but the wealthy could bear it, and as the higher dignities could only be reached by those who had served as sediles, Eome placed wealth before blood or virtue. In short, Eoman honours were put up at auction and knocked down to the highest bidder — cash down for place. The most popular candidates for the highest offices were those most lavish in their expenditure on the public games. Gladiatorial Exhibitions, A.TI.C. 490 (B.C. 264). — It was to Junius Brutus that Eome was indebted for the introduction at the obsequies of his father of the most brutal, sickening, and de- grading of all Eoman institutions — the gladiatorial exhibitions. First Plebeian Pontifex Maximus, A.TI.C. 501 (B.C. 253). Tiberius Coruncanius enjoyed the privilege of being the first THE REPUBLIC. 47 plebeian who attained the dignity of pontifex maximus. He was also the first plebeian who devoted himself to the public pro- fession of the law. He died b.c. 245. Praetor Peregrinus— The Jus Gentium, A.TJ.C. 507 (B.C. 247).— The importance of this date, and the facts for which it is memorable in the history of Eome, can scarcely be OTer-esti- mated. It was the duty of this new judge to hear and determine all cases of magnitude between foreigners, or between a Roman and a foreigner, and it was his duty to determine such oases by the doctrines and principles of the jus gentium as distinguished from those of the jus civile. Reason and equity, in the true sense of the term, were then made to take the place of the old civil law in every case in which a foreigner was interested. It is obvious that the Romans could not long rest satisfied with anything less for themselves. This change appears to be the foundation of the science of law, to which no nation ever con- tributed more largely than did the Romans. lex Silia— Condictio, A.TJ.C. 510 (B.C. 244).— This, the fifth of the actiones legis, lay for the recovery of specific sums of money {certce peeunice) . We know but little of the details of the forms of the condictio beyond the fact that it was so called because the plaintiff announced {denutiabat, condicahat) to his adversary that he would have to appear before the magistrate, in order that & judex might be appointed. Its date is not certain. Lex Calpurnia, A.TJ.C. 520 (B.C. 234).— By this law the Lex Silia was extended to every species of obligation that was of a definite character. {Be omni certa re.) The Second Punic War.— Between b.c. 218 and b.c. 201, the second Punic war, which Livy says was the most memorable that was ever waged, had as its field Spain, Italy, SicUy, and Airica. In B.C. 218 Hannibal, at the head of his Carthaginian army, 48 OUTLINE OF ROMAN HISTOEY. crossed the Alps and descended into Italy, where he fought the battles of Ticinusi and the Trehia.^ In b.c. 217, on the rocky- shores of Lake Trasimenus,^ he came up with and defeated the consul 0. Maminius : 15,000 Eomans are said to have perished, among whom was Flaminius. A new Eoman army was formed in which freedmen were enlisted. On the 2nd August, b.c. 216, tRe Eoman army of 80,000 foot and 6,000 horse attacked Hannibal on the banks of the river Aufidus, near the little town of Cannae.' They were defeated : 47,000 Eomans, and almost as many allies, covered the field of battle; among them were the consul ^milius Paulus, 80 senators, and many other high officials. The surviving Eomans capitulated and surrendered on condition that Hannibal sent messengers to Eome to negotiate "the ransom of his 3,000 Eoman prisoners. The senate bade his messengers return. The Eomans offered sacrifices to the gods. It is said that among others they offered up two pairs of human beings — a male and a female Gaul, and a male and a female Greek. Hannibal's success at Cannse induced many Italian cities and towns to abandon the cause of Eome and join the Carthaginians. Hannibal wintered at Capua.* It is suggested that his army became corrupted in that effeminate city. It is certain that his losses must have necessitated recruiting. It is probable that his new soldiers were inferior to his old. By almost incredible exertions Eome raised new apid mighty armies ; 8,000 slaves were purchased by the state on credit, and formed into two regiments ; gladiators were enlisted and allowed to serve in their usual arms. In B.C. 216, though Hannibal pitched his camp in the imme- diate neighbourhood of Eome, he only ravaged the country and returned to Ehegium.* It was in B.C. 214, that the great Archimedes took part in the defence of Syracuse. In B.C. 211, P. Cornelius Scipio, a haughty and dictatorial but thoroughly able man, then only twenty-four years of age, offered to take the command in Spain. The command was ' 111. 2 127. 3 143 i 128, 5 145. THE REPUBLIC. 49 given to. him -witli the title of proconsul. WMle at Eome lie went ostentatiously every morning to pray in the temple of Jupiter, on the Oapitol. His piety made him immensely popular with the people. The vulgar credited him with special divine favour. He re-organised the army in Spain. New Carthage,^ Astapa,^ and many other towns were taken by him. He de- feated Masinissa, whose force was three times as great as his own. Hasdruhal, the brother of Hannibal, quitted Spain to assist his brother in Italy. His army was routed and he killed. His head was thrown into his brother's camp. From that time Hannibal maintained himself on the defensive. When Hasdrubal quitted Spain, the Oaithaginians, deprived of their leading spirit, soon succumbed to Eome, who became mistress of Spain. In B.C. 206 Scipio went over to Africa, concluded a treaty with Syphax, returned to Italy, was made consul, and raised a volunteer army. In b.c. 204 he landed in the neighbourhood of TJtica,' ia Africa, with an army of 17,000 foot and several thousand horse. In B.C. 202 Hannibal, recalled, landed in Africa. Scipio and Hannibal met for the first time. It was on the river Bagradas.' It is said that each gazed on -the other in silent admiration. They discussed the terms of peace ; a truce was concluded between them. Ambassadors were sent to Eome to obtain its ratification. The Oarthagiaians, though counselled by Hannibal to the contrary, changed their miads, and resolved on another battle. It was fought at Zama,' b.c. 202. The Carthaginian army was cut to pieces and its remnant dispersed. Peace was concluded b.c. 201. Italy, Sicily, Sardinia, Corsica, and a great part of Spain were now subject to Eome. Carthage and Numidia* were not independent of it. Scipio's soldiers were rewarded, but the bulk of the middle classes of Italy were ruined. The gulf between the wealthy and the poor was wide. The gold that had been carried to Eome from Sicily, from Spain, and from Carthage, made war for the sake of plunder tasteful to not a few. 1 54. « 39. ' 115. * 101. N. E 50 OUTLINE OF KOMAN HISTOKT. The Sumptuary Law of the Tribune C. Oppius, A.U.C. 539 (B.C. 215). — It is said that this enactment forbade any woman to wear more than half an ounce of gold, gay-coloured dress, or to ride either at Eiome or in any other town and its immediate vicinity in a carriage drawn by two horses except on great religious occasions. The ladies clamoured. The law was repealed b.c. 195. First Macedonian War. — ^In b.o. 215 the first Macedonian war was commenced. Philip of Macedonia,^ fearing the growing power of Rome, concluded an alliance with Hannibal. At that time the Greeks were split into parties. The Eomans fostered the discord. Philip began to be looked upon by many as the national protector of the Greeks. A Roman army landed at Dyrrhachium.^ The Epirots' became tired of the war. A peace was concluded between the Romans and Philip in B.C. 205. Athens was at that time in a state of decay, and its inhabitants impoverished, but it was allied with Rome. An incident induced Philip to march against Athens. The Athenians implored the protection of Rome. Lex Cincia Muneralis, A.TI.C. 550 (B.C. 204). — This law was carried by the tribune M. Cincius Alimentus ; its object was to suppress the practice of bribing Judges with presents. Second Macedonian War. — ^In b.c. 200 the second Macedonian war was commenced. ' 173. » 158. 3 139, ( 51 ) Chapter V. THE miTJIBLlO— continued. THE SECOITI} CENITTBY B.C. i.e., A.XT.C. 555 tiU A.TT.C. 654 ;— B.C. 199 till B.C. 100. The Orators, Historians, PMlosophers, Poets, &c., of the Period. CATO, orator and prose ■writer, bom B.C. 232, died B.C. 148. TERENCE or TERENTIUS (PUBLIUS ACER), a pleasing play- ■writer, bom about B.C. 194. 'SULPICIUS GALLUS, astronomer, flourisbed about b.o. 168. PACUVnjS (MAECUS), tragic poet, flourished about B.C. 154. ALBrNXrS, author of a history of Rome written in Greet, flourished about B.C. 157. LUCILIUS (CATCrS ENNmS), caUed the father of Roman satire, bom B.C. 149, died [?]. VARRO (MARCUS TERENTrUS), prose writer, bom B.C. 118, died B.C. 29. The second Macedonian war, wliicli, as already stated, had commenced in the last year of the preceding century, endured tni B.C. 197, when the power of the Macedonians was hroken, and they were driven out of Greece. At the Isthmian games, in b.c. 196, the consul Plaminius proclaimed the freedom and independence of all the Ghreek cities and islands which had been under the dominion of Macedonia.^ In B.C. 193, all Greece was divided into two parties, the one 1 173. 52 OUTLINE OF ROMAN HISTORY. being in favour of the Eomans. The ^tolians, who were an- tagonistio to the Eomans, invited Antiochus, styled the Great, king of Syria, with whom Hannihal then was, to come over into Greece and help them. He did so. He was defeated by the Eomans, and retired to Asia, where he thought himself safe. The Eomans, however, destroyed one of his fleets, and acquired several important positions. In b.c. 190 L. Cornelius Scipio, afterwards styled Asiaticus, arrived ia Asia with an army of about 20,000 men. Antiochus had 70,000. At Magnesia,^ at the foot of Mount Sipylus, Antiochus was defea/ted. He sued for peace. It was granted to him B.C. 188 on the condition of his surrendering to Eome aU his dominions in Asia Minor west of Moimt Taurus,^ aU his ships of war, making certain heavy payments, and deUvering up Hannibal. Hannibal escaped. The power of the Syrian empire was broken for ever. Meanwhile the Eoman arms were no less active elsewhere, e.g., among the Spaniards, the Ligurians,' the Insubrians,* and the Boians.* The Ligurians kept them employed till b.c. 181 ; the Spaniards till B.C. 179. In B.C. 183, finding escape from the Eomans, Tyho were treacherously permitted to surround his house, impossible, Hannibal took poison and died. Scipio Africanus (the elder), his conqueror and admirer, died about the same time. For generations the people believed that the spirit of Scipio had soared up to the abode of the gods, and that a serpent of supernatural size guarded the access to his tomb. Lex Orchiana, A.TJ.C. 573 (B.C. 181). — This was a sumptuary law. It limited the number of persons who were allowed to meet at repasts. Lex .ffibutia — Ordinary or formulary procedure {Ordinaria judicia vel per formulas), A.U.C. 577 (B.C. 177).— The date of this important change is xmfortunately very uncertain. It, however, by common consent is placed between b.c 234 and b.c. 171. Ortolan fixes it at the date here given as the most probable, regard being had to other legislation. '174. 3 220. 3 U2. ■'111. THE REPUBLIC, 63 To the lex JEbutia is ascribed the introduction, or, perhaps more correctly, the sanction of ^q formula system. As thereto- fore, the parties went before the magister, to whom they stated their case, whereupon he nominated the judex and defined his duty, not, however, as formerly by word of mouth, but by filling up and handing to him a species of interpleader issue. The following is a copy of one : — " Let N— = — be the judge. Whereas A. B. has sold a slave to 0. D., if it appears that C. D. ought to pay to A. B. ten thousand sesterces, condemn 0. D., judge, to pay the ten thousand to A. B. If it does not so appear, acquit him." When a sidt was brought for the partition of an hcereditas {familice ercmundm), or the division of a thing held jointly (communi dividundo), or for the fixing and settling of boundaries of contiguous landowners {finium regundorum), the final clause ran — "as much as ought to be adjudged, judge, adjudge to A. B." {quantum adjudicare oportet, judex, A. B. adjudicato). The selection of the form applicable to the plaintiff's case appears to have been left to the magister. In order that the formula should concisely and, at the same time, accurately define the question or questions to be determined, great labour was bestowed upon the construction of the formulce, and it was not uncommon for the magister and the litigants to consult the most learned jurists and to secure their aid in the construction of a particular formula. It is the opinion of M. Ortolan that the formula system was first adopted in the case of disputes between the peregrini, subsequently between Eomans and pere- grini, in which ease the/ws gentium was the law applicable to the case, and that, working well in those cases, it was ultimately adopted in suits between Roman and Eoman. When the ease was tried by the magister himself, the procedure was styled extra ordinem cognoscere, or extraordinaria judicia. The Third Macedonian War. — In b.c. 171, Perseus, king of Macedonia, irritated by the conduct of the Eomans, declared war against them. At first he gained some important advan- tages, but, on the 23rd June, b.c. 168, he was defeated by the aged L. .ffimilius Paulus near Pydna ^ in a battle that only U74. 54 OUTLINE OF ROMAN HISTORY, lasted one hour. The Macedonian infantry were cut to pieces and the cavaky dispersed. The kingdom of Macedonia was no more. The country was divided into four districts. The inhabitants of one were forbidden to intermarry with those of another. The enormous wealth now in the Eoman treasury enabled the state to remit the poU tax. In the same year (b.c. 168) the third and last of the little lUyrian ^ wars was terminated. The country in this instance was divided into three districts. It is said that L. .ffimilius Paulus caused no fewer than 70 towns to be destroyed, and 15,000 Epirots to be either massacred or sold into slavery. At this period the bulk of the wealthy Eomans had become brutalized ; the poor miserably poor ; the middle class almost extinct. The treasury, however, was full. Incessant wars of extermination on the one hand, -wholesale plunder on the other, can scarcely fail to destroy all that is noble in man — everything yields to the sensual gratification of the moment. The orgies of Bacchus, introduced into Rome from Southern Italy, were celebrated at night with the grossest violations of decorum and morality. A slave who happened to be a good cook fetched a higher price in the market than any other. Luxury, gluttony, debauchery, and licentiousness were the order of the day. In vain did the stem old Cato denounce effeminate luxury and prophesy its necessary consequence. To him the philosophy of the Athenian ambassadors, Cameades,^ Diogenes, and Critolaus, who visited Rome b.c. 155, was as hateful as was the existence of Carthage or effeminacy itself. He secured the removal of the ambassadors ; but he could not efface their teachings. The people became divided between the doctrines of the Stoics and those of the Epicureans. Lex Fanniana, A.U.C. 593 (B.C. 161).— This law limited the expenditure to be incurred at great banquets. It was subse- ' 157. nothing but a word ; and that his oon- ' It is said that Cameades on one duct so affected Cato that he demanded occasion maintained the existence of that such ambassadors should be im- justioe as a fact, and on the following mediately dismissed, day undertook to prove that it was THE REPUBLIC. 55 quently re-enaoted and more strictly defined by the Didian and Lucinian laws. lex Calpiimia Eepetundarum, A.Xr.C. 605 (B.C. 149). — The origin of qucBstiones perpetum requires somewhat careful con- sideration. The reader -will rememher that — 1st the king, 2nd the comitia (first curiata, then centuriata, and finally trihuta), and 3rd the senate, were those in whose hands criminal jurisdic- tion was lodged; that these bodies respectively might either themselves investigate a criminal charge, or might delegate the investigation (the qumstio) ; that the person or persons to whom the investigation was delegated were styled a gucestor or qucestoi'es; and that in all cases the delegation had reference solely to a particular case or charge. That question disposed of, the dele- gate was functus officio. In its etymological meaning, therefore, ■ the expression qucBstiones perpetuce would simply suggest that a qucBstor, instead of being appointed for one cascj and for that only, received a permanent appointment ; that, however, is but a part, and a minor part, of what must be understood by the expression. The expression must be understood as conveying the facts — I. That at the time of the institution of qucestores perpetum aU the various kinds of delicts were more or less care- fully and accurately defined; II. That a given number of individuals were appointed for one year, each to act in a given class of cases only, as president of the tribunal ; III. That the verdict was that of the jury or citizen judges, selected for the particular occasion, sometimes numbering as many as 100 per- sons — the number was determined by the law that regulated the particular qumstio perpetua; IV. That the jury pronounced its verdict according to the law of the case, — condemnation, acquittal, or insufficient evidence — condemno, ahsoho, non liquet ; V. That each crime had its penalty, its tribunal, and its procedure. The institution of qucestiones perpetum was thus, obviously, not merely a strong check upon the arbitrary exercise of power, but a distinct advance in scientific procedure. There were crimes and cases, however, for which no qumstio perpetua had been pro- vided. In such cases the uncertain and arbitrary decision of the 66 OUTLINE OF ROMAN HISTORY. comitia, the senate, the praetor, or the special delegates, as the case might he, existed as theretofore. The procedure in such oases was termed cognitiones extraordinarice, — extra ordinem cognoscere. The Third Punic War (B.C. 149 to 146). — Masiaissa, king of Numidia,^ was a source of annoyance to Carthage. Some secretly sided with Masiaissa. Oato never lost an opportunity when addressing the Senate of saying, " Delenda est Carthago " (Carthage must fall). Masinissa fought and defeated the Carthaginians. It was alleged at Eome that the Carthaginians had broken the peace. P. Cornelius Scipio Nasica argued in favour of Carthage, Cato against it. Scipio saw in the existence of an honourable rival: — and such Carthage was — advantage to Eome. The counsel of Cato prevailed. A large army was sent to Carthage. The consuls demanded that Carthage should deliver up her arms and military engines. She did so. The consuls then demanded that the city should be razed to the ground. The Carthaginians, exasperated to madness, closed all the city gates, and slew all the Eomans and Italians who were within the walls. The 70,000 inhabi- tants resolved, though unarmed, to defend their city or to die. It is not easy to realize, it is impossible to describe, the horrors of this conflict, the heroism of the Carthaginians, or the brutality of the Eomans. Suffice it to say, Scipio set fire to the city at three diSerent points, and when the whole city was in a blaze promised to spare the lives of those who should come forth and surrender: 50,000 men and women bearing oHve branches ia their hands came forth. Scipio kept the letter (jf his word. The Carthaginians were sold as slaves. Carthage,, the city, was reduced to ashes. Carthage became a Eoman province under the name of Africa, b.c. 146. Greece a Roman Province. — ^In the same year, viz., b.c. 146, Greece lost the last remnant of independent existence, and was made a Eoman province. » 101. THE KEPTJBLIC. 57 War in Spain. — Between b.c. 153 and b.c. 133 Rome carried on war against the tribes of Spain. For eight years Variathus, a Lusitanian,^ bade the Romans defiance. In b.c. 141 the consul Servilianus concluded a peace with Yariathus as the friend and ally of Eome. . The next year Q. ServiKus Oaspio procured his assassination. In b.c. 138 Lusitania was subdued. At Numantia^ the Eomans fared- badly. The consul was obliged to conclude a peace. In b.c. 137 the consul, 0. Hostilius Man- oinus, renewed the war, and was compelled to accept humiliating conditions. The Romans were permitted to depart in safety. Numantia was to be treated as a friend of Rome. The senate declared the treaty void. Scipio Africanus (the younger), the de- stroyer of Carthage, was sent to Numantia. He resolved to do by starvation what the Roman sword had failed to accomplish. He constructed a fourfold Hne of fortifications round the city. A brave little band of Numantians^ broke through and reached Lutia^ in .quest of provisions. Lutia rendered assistance. Scipio, who had followed the Numantians, ordered the hands of 400 citizens of Lutia to be cut ofB. When the sufferings of the besieged became intolerable they begged for a truce of three days. The request was granted. When the gates were opened on the third day a small nimiber came out and surrendered. The rest were dead. Rather than trust to Roman humanity the three days had been spent in destroying wives, children, each other, and themselves. The city was destroyed b.c. 133. The First Servile War, A.U.C. 620 (B.C. 134).— The number of slaves throughout the empire was enormous. Slaves were buyable in the market for a mere trifle. Eunus, a Syrian slave, by reason of his piety acquired considerable influence among his fellows in Sicily. He was ill-treated by his master. He asso- ciated himself with Oleon. At a given signal 70,000. slaves rose in arms. Eunus assumed the diadem, and called himself King Antiochus. AH the freemen who could not make their escape were massacred. Several Roman armies were defeated. In b.c. 132 the slaves were overcome ; 20,000 of them were put to the sword ; many were naUed on crosses along the high road. I 23. * 62. 68 OUTLINE OF ROMAN HISTORY. Lex Sempronia Agraria, A.TJ.C. 621 (B.C. 133).— By tMs law no citizen was allowed to possess more than 600 jugera of ager pubKcus, with an addition of 350 for each child. Those who had more were to be deprived of the surplus, but were to be indemnified by the public treasury for all outlays incurred by them for the benefit of the property. The lands thus recovered were to be distributed among the poorer citizens, and to be held by them at an annual rental payable to the state. In B.C. 133, Attains Philometer, king of Pergamus,'' died. He had bequeathed his kingdom and treasures to" the Eoman people. They were enormous. His natural son Aristonious refused to recognise the wiU. He was defeated, B.C. 129. Some of the vices of Asia now found their way to Eome. Tiberius Gracchus, Tribune, B.C. 133. — The power of the senate was now everything ; that of the assemblies of the people next to nothing. The illustrious families were in the exclusive possession of the most important and lucrative offices. Those optimates accumulated their wealth in the provinces. At home they amused and corrupted the people by distributions of money or food, by games, spectacles, and bribes. The brothers Tibe- rius and Caius Sempronius Gracchus essayed reform. Tiberius determined to renew the Licinian law. His object was to take from those who had more than their due portion of land the surplus, and to distribute it among the poor. He sought and obtained the tribuneship for b.o. 133. Appius Claudius, his father-in-law, P. Mucius Scsevola, the great jurist, and other just and noble-minded men encouraged him. He succeeded in passing several important measures. P. Scipio Nasica charged him with aiming at kingly power, and called upon the senators to save the republic. Tiberius and some 300 others were mur- dered and thrown into the Tiber, b.c. 132. Cains Sempronius Gracchus was elected tribune, and was re-elected in B.C. 122. He was made consul, b.c. 121. He also carried several laws in the interests of the people. Lex Sempronia, Frumentaria, A.U.C. 631 (B.C. 123). — This was the first of a series of laws, enacted from time to time, 1 204. THE REPUBLIC. 59 regulating the distribution of wlieat among the poorer classes, sometimes at reduced prices, at others gratuitously. lex Sempronia, Judioiaria, A.U.C. 632 (B.C. 122). — By this plebiscitum the theretofore exclusive right of the senators to act as judges in the case of Eomans was transferred to the knights. This is the first of a series of laws abrogating or modifying one another as the senators or knights happened to be in the ascen- dency, and ultimately admitting to the judicial office citizens lower in rank than the knights. The total number of these judices inscribed on the annual list was gradually raised from 300, tiU in the reign of the emperor Augustus it reached about 4,000. L. Opimius (the prsetor) assembled the people with a view to abolish the laws of 0. Sempronius Gracchus. A tumult arose; 3,000 perished in the affray. To avoid civil bloodshed Sempro- nius escaped to the other side of the Tiber. It is said that he, at his own request, fell by the hand of a faithful slave. The blessings striven for by the Gracchi were realized but in part. The JugurtMne War, A.U.C. 643—648 (B.C. Ill— 106).— The war against Jugurtha, king of Numidia, commonly called the usurper, cannot be passed over without mention, though its incidents are unworthy of detail. It is another instance of Eoman intrigue. It is memorable for the fact that Jugurtha, before quitting Home, where he had been to negotiate, ex- claimed, " Oh, the venal city ! It will perish as soon as it can find a purchaser." It was during that war that Marius and Sylla became for the first time conspicuous in Eoman history. 0. Marius was a man of humble origin, but of strong, energetic, and ambitious temperament. He was a native of Arpinum.^ He had the rustic severity of the early Eomans, and despised the fashions of his time. He was unequalled as a commander and tactician. L. Cornelius Sylla, who accompanied Marius to Numidia^ in b.c. 106, had nothing in common with Marius save ambition and ability. He was a patrician, a man of fashion, talented and refined. Jugurtha, defeated, was carried to Eome a prisoner, and there starved to death in a dungeon. I 128. 2 101. 60 OUTLINE OF ROMAN HISTORY. Lex Thoria, Agraria, A.U.C. 647 (B.C. 107).— This reactionary law guaranteed to the holders of puhlio lands their possession free from incumbrance. It was followed hy seven agrarian laws within fifty-two years, the tendency of which was to nullify the effect of the lex Thoria. AH but the last were practically inoperative. The last was the kx Julia agraria. The Cimbri and Teutons, B.C. 107 to B.C. 101.— About b.c. 113 the Oimbri, supposed to be a Celtic tribe, appeared in Noriciun,' then inhabited by Celts under the protection of Eome, where they were joined by the Teutons, undoubtedly Grermans. They promised not to molest the friends of Eome. A Eoman consul thought fit treacherously to attack them. He was defeated. The Cimbri reappeared near Gaul in B.C. 109, They prayed the Eoman consul to assign them a country to live in, promising to support the Eoman arms when called upon. Their petition was rejected. They attacked and defeated the consul. In B.C. 107 the consul, L. Oassius Longinus, was defeated and slain near the Lake of Geneva.^ Not long after two consular armies were completely annihilated : 80,000 soldiers and 40,000 camp followers are said to have been slain. The Eomans, in dismay, turned to Marius as the only man in whom they had confidence. Unsolicited, and in his absence, he was raised to the consulship B.C. 104. He created and trained an entirely new army, which for the most part consisted of the pqpulus and the veterans who returned with him from Africa. He met the enemy in the neighbourhood of Aquse Sextise (Aix).* The battle lasted for two days. The Teutons were utterly defeated; in short, an- nihilated, for many who had survived the battle destroyed them- selves. This was in b.c. 101, in which year Marius was, for the fifth time, elected consul. Marius next joined his army to that of Catulus, and diverted the approach of the Cimbri, who had spread over the plains of Lombardy. He drew up his forces at Campi Eaudii, near Verona.* The battle was fought on the 30th July, b.c. 101 : 14,000 of the Cimbri were left on the battlefield, and 60,000 ' 125. 2 96. 3 97. 4 126. THE REPUBLIC. 61 captured were sold as slaves. Marius was appointed consul for the sixth time, an event unprecedented in Eoman history. The Second Servile War, B.C. 102 to B.C. 99.— In B.C. 102 the preetor L. Lioinius Nerva manumitted all the slaves in Sicily who were natives of a Eoman province. The remaining slaves resolved to free themselves. The war lasted four years. Marius took no part in it. The slaves were defeated. 62 OUTLINE OF KOMAH HISTOKY. Chapter VI. THE 'EEFUBLIG— continued. THE FIRST CENTURY B.C. i.e., A.TJ.C. 655 to A.TJ.C, 753-4;— B.C. 99 to A.D. The Orators, Historians, Philosophers, Poets, Ac, of the Period. LICINITJS (LtrCIUS CRASSUS), orator, flouriBlied about B.C. 96. OiESAR (CAIUS JULIUS), orator, historian, jurist, bom B.o. 99', died £.0. 43. ANTONIUS (MARCUS), orator, bom b.o. [?], died b.o. 67. CICERO (MARCUS TULLIUS), the prince of Roman orators, bom B.o. 106, died B.C. 43. CATULLUS (OAIUS VALERIUS), poet, bom B.C. 86, died B.C. 57? HORTENSIUS (QUINTUS), orator, bom b.c. [f], died b.o. 49. SALLUST— CAIUS CRISPUS SALLUSTIUS, historian, bom B.C. 83, died B.C. 35. POLLIO (CAIUS ASINIUS), historian, orator, and writer of tragedies, bom B.o. 84, died B.C. 4. VIRGIL— PUBLICIUS VIRGILIUS MARO— the most distin- guished epic, didactic, and pastoral poet of Rome, bom B.C. 70, died B.C. 19. GALLUS (CORNELIUS), poet, bom B.C. 70, died B.C. 28. PROPERTIUS (SEXTUS AURELIUS), elegiac poet, bom B.C. [?], died about b.o. 12. HORATIUS ELACCUS (QUINTUS), lyrio poet and satirist, bom B.C. 65, died B.o. 9. VAUIUS, poet, temp. VIRGIL and HORACE. LIVr or LIVIUS (TITUS), historian, bom B.C. 59, died A.D. 16. TIBULLUS (ALBIUS), poet, bom B.o. 43 f died B.C. 19 ? THE REPUBLIC. 63 OVID-OVIDIUS PUBLIUS, sumamed NASO— poet, born b.o. 43, died A.s. 18. aEATIUS (FALISEUS), poet, beUeved to be contemporary with OVID. NEPOS (CORNELIUS), historian, temp. JULIUS CJESAR and AUGUSTUS. TROaUS POMPEIUS, historian, temp. AUGUSTUS, b.o. 31 to A.D. 14. SENECA (MARCUS ANNJEUS), rhetorician, temp. AUGUSTUS. MANLIUS (MARCUS), poet, temp. AUGUSTUS. ALBINOVANUS (C. PEDO), poet, temp. AUGUSTUS. SEVERUS (CORNELIUS), poet, temp. AUGUSTUS. LUCRETIUS (TITUS CARUS), phHosopher and poet, bom B.C. 29, died B.C. 48. In B.C. 91 the tribune, M. Livius Drusus, who was bent on reforming abuses, proposed, among other things, that the fran- chise should be given to the Italians. The senate refused the franchise to the Italians. Drusus was murdered. It so happened that many Italians who lived in Eome, though not legally qualified to vote as Eoman citizens, had long been allowed to live and act as if Eoman citizens. In B.C. 95, however, the consul, L. Licinius Orassus, and the pontifex maximus. Mucins Sesevola, one of the great Eoman jurists, carried a law which forbade the exercise of citizen rights by any but citizens. This enactment, in conjunction with the murder of Drusus, threw the Italians throughout Italy into a state of the greatest excitement. The senate favoured the claim of the Italians, but the equites and the rabble, with whom the equites made common cause, rejected it. The Italians determined to appeal to the sword. The various Italian nations formed themselves into a confederacy. Their alternative was the franchise or the destruction of Eome. Fortunately for Eome, the Latins, the Etruscans, the Umbrians, and the Oampanians, held aloof. For the purposes of the war the ItaUan nations may be divided into three groups, inasmuch as three Eoman armies took the field against them, viz., 1, Picenum;^ 1 127. 64 OUTLINE OF KOMAN HISTORY. 2. Vestini,! Maxrucini,! Marsi,* Frentani,! and Samnium;'' 3. Hirpini,^ Apulia/ and Lucania.^ The Eoman army in central Italy was under the command of Marius and Sylla. That in the south was commanded by L. Julius Cffisar. That between the two was under the com- mand of the consul On. Pompeius Strabo. In B.C. 90, L. Julius Csesar and P. Eutilius Lupus were unsuccessful against the Italians. The legates, Sylla and Marius, however, were more fortunate. In e.g. 89, the consul 0. P. Strabo defeated the Marsians and Yestinians with 70,000 near Asculum.^ The town was taken by storm. The fate of its inhabitants was dreadful. It is said that 300,000 fell in this war. Rome pro- mised the franchise to all who laid down their arms. The war was thus brought to an end except as to Samnium,* which held out till B.C. 88. lex Julia, A.U.C. 664 (B.C. 90). — By this law, which was carried by the consul L. Julius Osesar, the franchise was granted to all the Latins both in Latium and the Latin colonies, in con- sideration of their not having taken up aims against Rome in common with the Italians. lex Plautia, A.TJ.C. 665 (B.C. 89). — ^In this year the consul, M. Plautius SUvanus, carried a law which in efEeot gave the franchise to all the Italians. The Umbrians and Etruscans, either in this or the previous year, had received the franchise. It is said that Pompeius Strabo carried a law granting the Latin franchise to aU the inhabitants of the country between the Alps and the Po. Soman Citizenship. — The rights of Eoman citizenship were now enjoyed by nearly the whole of Italy, the only condition imposed being a declaration by the new citizens that they would adopt the civil law of Eome. The Eoman civil law thus became the law of aU Italy. ' 128. 2 143. THE EEPUBLIC. 63 As the -whole of the new citizens were placed -in eight tribes, ■whereas Eome.itself had thirty-five, the then political influence of the new commoners may be approximately estimated. Civil War— Marius and Sylla, B.C. 87 to B.C. 81.— When we are told that Sylla, who ultimately triumijhed over Marius and his party, in doing so caused the destruction of 46 persons of consular, praetorian, or sedile dignity, 200 senators, 1,600 equites, 8,000 Samnite captives, and 15,000 citizens, it is not diificiilt to sympathize with Montesquieu when he prays to be permitted to turn away his eyes from the wars of Marius and Sylla. Those who can find pleasure in gladiatorial exhibitions may have stomachs strong enough to read the detailed account of this wading through human blood to power, but even they, so one would thint, must mentally ask, how could such things be ? Marius and Sylla were rivals as individuals, but perhaps not so much as individuals as representative men. Each re- garded the other as the embodiment and exponent of principles, theories, or prejudices to be detested : hence the following of each, hence their fury. Each being resolved to gaia the ascendency regarded no means as too base or brutal. The advantage gained by either was used in butchering and blotting out the friends and supporters of his adversary, Marius made himself consul for the seventh time B.C. 86, iu the 70th year of his age. In B.C. 81, Sylla, at his own instance, was appointed dictator for an indefinite period. He assigned colonies in Italy to twenty-three legions. The places thus made over to the soldiers as a reward for past services were called military colonies. He conferred the Eoman franchise on 10,000 emancipated slaves, who received from him the name of Cornelii ; they constituted his body guard, and were distributed among the thirty-five old tribes. He filled up the vacancies in the senate with equites and centurions. He deprived the tribunes of the right of pro- posing legislative measures and of holding any other magistracy after the expiration of their term of office. He restored to the senators the right to try cases of a public character. He in- creased the number of the praetors to eight, the quEestors to twenty, 66 OUTLINE OF ROMAN HISTORY. the augurs and pontiffs to fifteen each. He placed the criminal law on a solid foundation. He made other alterations, and, to the astonishment of aU, voluntarily laid down the dictatorship in B.C. 79 and retired to Puteoli,i ^tere he died in the following year of disease. He had ordered it to he inscribed on his tomb, that " no man had ever equalled him in doing evil to his enemies, nor in doing good to his friends." The wars of Marius and Sylla gave the deathblow to the Eoman republic. Between b.c. 81, when SyUa made himseK perpetual dictator, and b.c. 31, when Octavius Augustus laid the foundation of monarchy (Empire), the Eoman world wit- nessed the spectacle of wars waged for the sole purpose of individual aggrandizement. In B.C. 78, Lepidus and Catullus were the consuls; the senate made them promise on oath not to take up arms against each other. Lepidus raised an army, marched to the gates of Eome, but was repulsed by Catullus. In b.c. 70, the power of the tribunes was restored, and most of Sylla's laws as to the administration of justice were repealed. In b.c. 82, the prsetor Q. Sertorius, who had joined the Marian party on account of his detestation of aristocratic intrigues, was sent to Spain, there to maintain his party's interests. His object was to blend Spaniards and Eomans into one people, and to establish a new Eoman republic in Spain. He there formed a senate of 300, consisting in part of proscribed Eomans, and in part of illus- trious Spaniards. He appointed republican magistrates in imitation of those of Eome. He founded a great school at Osca^ for the education of the sons of distinguished Spaniards. In B.C. 79, Q. C. Pius was sent against him. Sertorius became suspicious of the Spaniards. He caused all the boys at Osca to be put to death. He was murdered at the instance of Perpenna, B.C. 72. Perpenna put himself at the head of the Marian army : he was defeated by Pompey, and put to death. The last then remnant of the Marian party was annihilated. In B.C. 74, the third Mithridatic war broke out. In B.C. 73, some gladiators, headed by Spartacus, made their 1 112. '67. THE REPUBLIC. 67 escape from Capua.i Spartacus soon found himself at the head of 10,000 slaves. Time after time, he, in b.c. 72, defeated the consuls and laid waste a large part of southern Italy. In b.c. 71, he was defeated by M. Licinius Orassus. 5,000 of the slaves who had escaped to the north of Italy were defeated and cut to pieces by Pompey. In B.C. 70, Pompey and Orassus were the consuls. Early in B.C. 67, Pompey was invested for three years with supreme command over all ports and coasts of the Mediterranean, then infested by pirates. Before the middle of the summer the whole of the Mediterranean was cleared. The strongholds of the pirates were destroyed. In B.C. 66, it was proposed that the command of Pompey should be extended to Bithynia,^ Pontus,^ and Armenia,* in order that he might cope with Mithridates, who had thus far proved victorious in the war. C. Julius Osesar and Cicero supported the proposition. It was carried. Mithridates was defeated. His son Phamaces headed a rebellion against him. The king caused his slave to kill him. Phamaces sent his corpse to Pompey. Pompey made Judsea ' and Cilicia ^ Eoman provinces. The Catiline Conspiracy. — In b.c. 66, 0. Sergius Oatilina, a noble who had squandered all his property, leagued himself with profligates of all parties, as also with many of the dregs of the populace. He offered himself as a candidate for the consulship in B.C. 65 : failing, he plotted the murder of the consuls. His scheme was frustrated. In b.c. 64, he again stood for the consulship. Cicero was elected in his stead. He resolved to destroy the city by fire and to massacre all the leading men. His plans were ripe for execution. Curio, one of the con- spirators, divulged the scheme to his mistress, Fulvia ; Fulvia reported it to Cicero, who revealed it in the senate on the 8th November. Catiline, who was declared a public enemy, made his escape. Documents that fell into the hands of Cicero proved that Lentulus the praetor, Cethegus, Statilius, and ' 128. ' 218. ' 248. " 263. ' 252. « 235, f2 68 OUTLINE OF ROMAN HISTOKY. Oseparius were among the conspirators. Gioero deHvered his fourth speech against Catiline on the 5th December. Those conspirators were arrested and strangled in prison on the same day hj order of the senate. In b.c. 62, Catiline, with 3,000 of his co-conspirators, fell in battle, sword in hand. The First Triumvirate. — C. Julius Csesar's aunt, Julia, his father's sister, the widow of the elder Marius, died in B.C. 67. Csssar delivered the funeral oration. Two years later, he (CsBsar), during the night, replaced the statues of Marius in the Capitol. They had been removed by the order of Sylla. The senate was filled with alarm, the people with delight. Caesar was recognised as the avowed head of the remnants of the Marian party. In b.c. 62, he was made praetor. Spain was assigned to him as his province. In Spain, Csesar collected enough for himself during his year of office to enable him to pay o£E his debts (1,000,000^.). He, Pompey, and Crassus, then (b.o. 60) agreed together that no political measure should be taken that was displeasing to either of the three. The three were all-powerful. It was agreed between them that Pompey should have Spain ; Crassus, Syria ; and Csesar, Gaul, Csesar was consul in b.c. 59. Lex Julia, Agraria, A,XJ.C. 695 (B.C. 59). — By this law, passed at the instance of Julius Ceesar, the public lands of Campania ^ were distributed among the poor citizens who had three or more children. It is said that the distribution benefited more than 20,000 heads of families. In B.C. 61, P. Clodius had had an intrigue with Csesar's wife. Cicero not merely refused to defend Clodius, but testified against him. Clodius was elected tribune for the year B.C. 58. He carried a law enacting that whosover had ]Dut to death a Roman citizen without a formal trial should be outlawed. The law was aimed at Cicero. Neglected by Pompey, Crassus,- and Csesar, Cicero went into exile. In b.c 67, Cicero was recalled. In B.C. 53, Clodius was kiUed in one of his feuds with Milo. Pompey was sole consul. Milo was accused and condemned; ' H3. THE EEPUBLIO. 69 Pompey had surrounded the forum with armed soldiers. Cicero, for the first time, was unnerved. He could not plead for Milo. His oration for Milo was written afterwards. He sent a copy of it to Milo. Milo replied saying, " If you had delivered that speech at my trial, I should not now be eating the fine fish of Marseilles." Csesar's campaigns in Graul, where he is said to have subdued- 300 tribes, and his invasions of Britain in the yeajs b.c. 55 and 54, created in the then Eoman world the same feeling of wonder and admiration that they still inspire in the bosoms of those who delight in chivalry and adventure. ' In B.C. 55, Orassus went to Syria.^ From the temple of Jerusalem he took 2,000 talents. In b.c. 54, he went into Mesopotamia.^ He was unsuccessful, and in the following year was defeated; 10,000 Eomans with their camp fell into the hands of the Parthian conquerors. While attempting escape Crassus was struck down by an unknown hand. In B.C. 54, Julia, the daughter of Csesar and wife of Pompey, died. The bond of union between Csesar and Pompey was severed. Csesar and Pompey were now rivals. Pompey ad- ministered Spain through his legates, and spent' most of his time at Eome. His princely mode of living suggested to many the idea that he aimed at absolutism. Cato publicly denounced some of his doings : Pompey, on the other hand, laid that charge - to Csesar. Each bribed heavily to secure friends at Eome. Csesar wrote to the senate expressing his readiness to disband his army if Pompey would disband his. On the motion of Soipio, Pompey's father-in-law, the senate ordered Cifisar to dis- band his army at a given date. It was evident that Pompey had resolved to crush Csesar if he could. M. Antonius and Q. Cassius, two tribunes who had opposed the motion, fled in disguise to Csesar, and called upon him to protect the inviolable persons of the tribunes. Everything at Eome was in confusion. Pompey was en- trusted by the senate vsith the conduct of the war, if war there should be. He and the aristocracy believed that Csesar dared not march against them. 1 251. ' 265. 70 OUTLINE OF EOMAN HISTORY. No sooner did Csesar hear of the decree than he assembled his soldiers and told them aU that had taken place. The soldiers promised to follow wherever Caesar should lead. Caesar marched to the little river Euhicon,^ the line which no general was per- mitted to pass with an army without the permission of the senate. Arrived, he halted for^ a moment ; he wavered, then exclaimed, " The die is cast." Caesar crossed the Eubicon with one legion in the middle of January b.c. 49. So great was Caesar's popularity that town after town threw open its gates as he approached. Pompey, bewildered, quitted the city at dusk. Consuls, senators, and others followed him, leaving behind them all the money in the pubHe treasury. At first they went to Capua,^ then to Brundusium,' intending, if possible, to make their escape to Ghreece. The soldiers of L. Domitius deserted in a body to Caesar. Caesar followed Pompey as far as Brundusium ; but, not having ships, he could not then go further. Pompey gone, aU' Italy declared for Caesar. Arrived at Eome, Caesar acted with mild- ness, but as sovereign. He took what money he wanted from the public treasury. After a short stay he left his friends in charge of Eome and Italy. It is said that in forty days Caesar overcame his enemies in Spain and returned to Eome. In December, b.c. 49, Caesar left Eome in pursuit of Pompey. He laid siege to Dyrrhachium,* but was obliged to raise it ; disease had broken out among his soldiers, and his provisions were falling short. From Dyrrha- chium he went towards Thessaly.' Pompey, elated, followed him. On the 9th of August, B.C. 48, they fought in the plain of Pharsalus;' Pompey's army was routed and his camp taken. On the 28th September Pompey was murdered by an emissary of Ptolemy. Caesar landed in Egypt a few days later. In Egypt Caesar became involved both in love and war. The fascinations of the lovely and licentious Cleopatra overcame him. Cleopatra was reseated by Caesar on the throne of her fathers. Caesar was enslaved by Cleopatra. Phamaees the son of Mithridates had defeated one of Caesar's legates. Caesar heard of it, tore himself ^127 2128. 3 143. «158. 5 174. THE REPUBLIC. 7X from his mistress, and went to meet Ptarnaoes. It was con- oeming the result of that meeting that Osesar wrote to the senate, saying, " I have come, I have seen, I have conquered " ( Veni, vidi, vici). In September, b.c. 48, Csesar, having returned to Eome, entered on his dictatorship. He made M. Antony his master of the horse. Csesar was invested for life with the rights and privileges of a tribune. The senate and the people vied with each other to do him honour. His unexpected and unexampled mUdness seemed to fill aU with admiration. The partisans of Pompey, however, were plotting. In b.c. 46, Csesar went to. Africa and triumphed. Cato, unable to hold Utica^ against Csesar, advised the inhabitants to surrender to Osesar. That done, Cato put an end to his own existence. If Cato was not the last, he was at least the best of the party of Pompey. Csesar, sole master of the Eoman world, returned to Eome at the end of July, and there proclaimed a general amnesty. The dictatorship was conferred on him for ten years. Csesar commenced reforms. He added ninety days to the calendar of the year b.c. 46, and decreed that confusion should be avoided in the future by strict adherence to the solar motions. He conferred the Eoman fran- chise on all Cisalpine Q-aul,^ thenceforth styled Gallia Togata. In imitation of Sylla, he established colonies in Gaul, Italy, and Africa. He endeavoured to reform the law and to curtail the duration of administration in the provinces. While thus engaged, the Pompeian party again broke out in Spain. Csesar left Eome B.C. 46. On the 17th March, b.c. 45, he defeated the Pompeians at Munda,^ and, as the detachments of the defeated army would not accept his pardon, Csesar destroyed them. It is said that shortly before this victory Csesar was so dejected that he con- templated suicide. Eetumed to Eome, Csesar received the titles of imperator, dictator, and prcsfectus morum for life, and was appointed consul for the next ten years. He adopted M. Octa- vius as his son. He hoped that he might be his successor in dignity. M. Antony, on the 15th February, b.c. 44, ofPered to Csesar the diadem ; Osesar decHned the honour. Antony caused the statue of Csesar to be crowned. Two tribunes ordered the I us. "111. '39. 72 OUTLINE OF ROMAN HISTORY. crown to be removed. A conspiracy was formed against Caesar's life ; it was joined hj Brutus, a nephew of Cato, a man for whom Caesar had great respect. Csesar was warned of the plot, but disregarded th« warning. He was assassinated in the senate house on the 15th March, B.C. 44, in the fifty-sixth year of his age, stabbed, it is said, in thirty^three places. Brutus was one of those who slew him. Was there ever a more senseless murder ? By his will, Csesar appointed his great-nephew, 0. • Julius Octavius, the heir of three-fourths of his private property. At the date of Caesar's death Octavius was nineteen years of age, and by that event his name became 0. Julius Caesar Ootavianus. He, Antony, M. Lepidus, Brutus, Cassius, and Cicero are the individuals who stand out conspicuously in the history of Rome of the . period immediately following the death of Caesar. Antony was one of the consuls of the year. There are but few who have not heard of Antony's funeral oration over the dead body of Caesar, of his attempts to defraud Octavius of his in- heritance, of his intrigue to make himself absolute, and of his having been declared by the senate a public enemy. The Second Triumvirate. — In November, b.c. 43, on a small island in the river Ehenus,^ Octavianus, Antony, and Lepidus met and entered into an alliance. They assumed the title of " The three constituents of the republic " — triumviri rei publicce constituendce — ^which position they agreed to hold for five years. Africa, Sicily, and Sardinia were, by their common consent, assigned to Ootavianus, Gaul to Antony, and Spain to Lepidus. Each drew up a list of those whom he, or the others, wished proscribed, and their property confiscated. Octavianus, to please Antony, entered the name of Cicero ; Antony put down the name of his own uncle, L. Csesar; Lepidus inscribed that of his own brother Paulus. The triumviri went to Eome. Every part of the city was occupied by soldiers. A tribune asked the people to sanction without investigation certain arrangements made by the triumviri. The sanction was obtained. The lists 109. THE REPUBLIC. 73 were distributed among the commanders of tlie forces. Three hundred senators and two thousand equites were massacred. Cicero was murdered hy Antony's emissaries on the 7th Decem- ber, B.C. 43. Octavianus and Antony went to Greece to carry on war against Brutus and Oassius. The fortunes of war favoured Octayianus and Antony. Cassius bade one of his servants take his life. Brutus put an end to the war by destroying himself, e.g. 42. Antony went to Asia. Octavianus returned to Italy. Fulvia, the wife of Antony, excited the consul Antonius against Octa- vianus. Antonius took up his quarters at Perusia^ in Etruria ; he was defeated by Octavianus early in b.c. 40, and turned traitor to his party. Antony meanwhile was first in Asia, and then in Egypt, with Cleopatra, indulging in wild excesses. Fulvia died at Sicyon.^ Antony and Cn. Domitius Ahenobarbus, the republican admiral, sailed to Brundusium.' Octavianus shut the gates of the city against them. A reconciliation was effected. A general amnesty was declared, and a new distribution of the provinces agreed to. Antony was to have aU the provinces east of the Adriatic ; Octavianus, all the western provinces ; Lepidus, Africa ; Italy was to belong to the three in common. Antony, to seal this fcedus Brundusinum, married Octavia, the sister of Octavianus. Sextus Pompeius was to be regarded by all as the common enemy. Lepidus laid down his state, returned to Eome, and became pontifex maximus, which office he retained till death, b.c. 12. Octavianus joined the province and army of Lepidus to his own. Pompeius was defeated, and subsequently put to death, b.c. 35. In B.C. 36, Antony went on an expedition against the Par- thians:* he had with him sixteen legions. He was defeated, and returned to Alexandria and to sensual pleasure with his mistress Cleopatra. Octavia had gone to Gb-eece with reinforce- ments, money, and clothing for his army. Antony wrote telling Octavia not to follow him about. He openly divorced her. Octavianus and his sister were now regarded as the injured parties. War was declared b.c. 32. In the spring of b'.c. 31, 1 127. » 175. ' 143. * 293. 74 OUTLINE OF EOMAN HISTORY. OotaTianus set sail. The fleets met at Actium^ on the 2nd September, n.c. 31. Octavianus was victorious ; Antony and Cleopatra made their escape. In b.c. 30 Antony, having ahan- doned hope, threw himself upon his own sword. Cleopatra, to avoid being carried prisoner to Eome, placed a viper to her breast and died. Egypt became a Eoman province. 1159. ( 75 ) THE ROMAN EMPIRE. A.tJ.C. 7S3 till A.U.C. 753-4 ;— B.C. 31 till A.D. The battle of Aotium, in effect if not in name, made Ootavi- anus sole master of tlie Eoman world, on the 2nd of September, B.C. 31. That is the date commonly accepted as that of the foundation of the Eoman empire as distinguished from the Roman repubKo. In the spring of b.c. 29 the temple of Janus was closed. There was peace throughout the Eoman dominions. The senate conferred on Octavianus the title of imperator for life. In B.C. 27 the senate decorated Octavianus " Father of HIS Ootjntey" and "Augustus." It vested in him the supreme power for ten years. In B.C. 27 an arrangement was concluded by which the provinces were divided between the senate and Augustus. Those assigned to the senate were styled promncice /tenatorice ovpopuli, and were governed by persons appointed annually by the senate, who, however, had not the imperium. The provinces assigned to Augustus, by far the most impor- tant, were styled promndcB Ccesarem, and were governed by his nominees, styled legati Ccesaris or Augusti. The iucome derived from the provinces of the senate went into the public .treasury, cerarium, out of which the expense of the civil government was defrayed. The revenue derived from Caesar's provinces, styled tributum, went into his treasury, the Jiscus, which had to bear the cost of the army. The Jiscus was not the emperor's private purse. In B.C. 23 the senate conferred on Octavianus the tri- bunician power for life. In b.c. 19 consular power was con- ceded to biTTi in perpetuity. In b.c. 17 the ten years' term of absolute power was renewed, and the power of a censor was 76 OUTLINE OF KOMAN HISTOEY. granted to him ; and in b.c. 12, on the death of Lepidus, he waa made pontifex maximus. He ostentatiously, hut prudently, re- fused the title of dictator. Power he loved, and contrived not merely to get but to hold. The history of the past had possibly taught him that the substance might be enjoyed by one willing to forego the shadow — ^the name. Consuls, proconsuls, praetors, tribunes, and the rest were ap- pointed as before ; but now as the colleagues of Augustus, to whom all were in fact subordinate. Those nominated by him were certain of election. It is said that his nephews, sons-in- law, and even his grandsons, when little better than boys, were placed ia offices of trust. In order to avoid exciting alarm he lived with the simpHoity of a private citizen. He established, however, a guard— the praetorian guard — a body of from 8,000 to 10,000 men, who were in effect, though not in name, his body guard.'^ He exerted himself in correcting abuses, both pubHc and private. He paid special attention to the due worship of the gods, which for some time past had been neglected. He cleared the streets of the banditti and assassins that had long infested them both by night and day ; he brought every part of the city under direct and efficient police, i. e. praetorian supervision. He gave a new form to the senate ; he enacted laws for the improvement of the law and the morality of the people ; he introduced discipline iato the army, which consisted of about 450,000 men, and order into the games of the circus; he so greatly improved the city that it was said that " he found it of brick and left it of marble." He protected and favoured the learned ; he travelled largely. Yilleius says — " He made iourneys everywhere in increase of the blessings of peace." With the exception of the reverses of Varus, who was de- feated by the Germans a.d. 9, his arms were uniformly successful ; and in b.c. 10, for the third time in the history of Eome, the temple of Janus was closed. 1 Gibbon saya, "That crafty tyrant, in constant readiness to protect his sensible that laws might colour, but person, awe the senate, and either to that, arms alone could maintain, his prevent or to crush the first motions of usurped dommion, had gradually rebellion." (Vol. I. 163.) formed this powerful body of guards ( 77 ) Chapter VII. THE ROMAN EMPIRE— continued. THE FIRST CENTURY OF THE CHRISTIAN ERA. i. e., A.TT.C. 753-4 till A.TJ.C. 852 ;— A.D. till A.D. 99. Emperors of Eome. A.D. 1 to 14. OCTAVIANUS AVGVSTVa-continmcl His reign commenced B.C. 27. 14—37. TIBERIUS. 37—41. CALIGULA. 41—54. CLAUDIUS. 54—68. NERO. 68. GALEA. 69. OTHO. 69. VITELLIUS. 69—79. VESPASIAN. 79—81. TITUS. 81—96. DOMITIAN. 96—98. NERVA. 98— . TRAJAN. Jurists. Temp. AxJOTJSTOS— M. ANTISTIUS LABEO, C. ATEIUS, CAPITO. Temp. TiBEBTOS— MASURIUS SABINUS, M. COCGEIUS NERVA, SBMPRONIUS PROCULUS, C. CASSIUS. Temp. Teajan— P. JUVENTIUS OELSUS, NERALIUS PEISCUS, PRISCUS JAVOLENUS. 78 OUTLINE OF EOMAN HISTOKY. Orators, Historians, Philosophers, Poets, &c. PHiEDEUS, a fabulist in iambic verse, temp. Atjgttstus and Tibeeius. VALEEIUS MAXIMUS, historian, &e., temp. TiBEEnrs, i.e. a.d. 14 to A.B. 37. SKNECA (LUCIUS ANN-S)US), philosopher, poet, and prose writer, bom A.D. [?], died a.d. 65. MARTIAL or MARCUS VALERIUS MAETIALIS, poet, epigrammatist, born A.D. [?], died a.d. 164. VALEEIUS MAXIMUS, historian, temp. TiBEBins. SILIUS ITALICUS (CAIUS), poet, bom a.d. 15, died a.d. 90. PLINY— CAIUS PLINIUS SECUNDUS — the elder, a prolific 'and learned historian, &c., bom a.d. 22, died a.d. 79. PERSIUS (AULUS ELACCUS),, satirical poet, bom a.d. 34, died a.d. 62. LUCAN— MARCUS ANN.ffiUS LUCANUS— poet, bom a.d. 37, died A.D. 65. STATIUS (PUBLIUS PAPINIUS), poet, bom a.d. 61, died a.d. 96. PLINT— CAIUS PLINIUS C^CILIUS SECUNDUS — the younger, philosopher, historian, and orator, bom a.d. 62, died a.d. [?]. PRONTO (MARCUS CORNELIUS), orator and teacher of oratory, temp. Maeotjs Atjebutts and Lucius Vbeus (a.d. 161 to 199). SULPICIA, poetess, flourished about A.D. 90. QUINTILIAN or QUINTILIANUS (MARCUS EABIUS), advocate, rhetorician, and critic, flourished during this century. TACITUS (CAIUS CORNELIUS), poet, philosopher, and historian, bom about A.D. 56, died about a.d. 135. PLACCUS (CAIUS VALERIUS), poet, flourished during this century. JUVENAL— DECIMUS JUNIUS JUVENALIS — satirist, flourished during the second half of this century. Special attention must now he directed to the " Leges Julia et Papia," the lex ^lia Sentia and the lex Furia Caninia, to fidei commissa and codicilli, to the respoma prudentum, and to the constitutiones primipum. leges Julia et Papia (Lex Julia, B.C. 18— Lex Papia, A.D. 9). — Foreign and domestic war, wholesale proscriptions and suicides, inordinate luxury coupled with ahsolute insecurity, had toward the close of the reputlic necessarily made libertinism and celibacy THE ROMAN EMPIRE, 79 Characteristic features of the period. Tlie old race was fast becoming extinct : a race of freedmen, foreigners, and slaves threatened to take their place. Legislation was resorted to. The two laws above mentioned, and commonly by subsequent Eoman writers referred to imder the title "Leges Julia et Papia" or " NovcB leges" or simply as " Leges" they being regarded as laws par excellence, in short, divided the whole Eoman society into — 1, the married and unmarried {ccelibes) ; 2, into parents {patres or mafres) and the childless (orbi). The fundamental object of the two laws was Eoman procrea- tion, legitimate marriage, or, failing that, citizen cohabitation. Fecundity on the part of the female Eoman citizen, whether her children were legitimate or not, was rewarded. Three con- finements, she being ingenua, or four, she being an enfranchised, gave her the jus liberorum. Eewards were offered to the fruitful, while the childless were punished. By the old law, unaltered by the iiew, any Eoman citizen might by testament be appointed heir or legatee. The Eoman citizen had the testamenti factio. The leges Julia et Papia took from them, however, the right to receive the inheritance or legacy under the will [jus capiendi ex testamento) unless they had previously, or within a given period after the reading of the win, complied with the provisions of the new laws. The un- married could not take any part of what had been left them by wiU. The orU could only take one-haK ; neither husband nor wife could effectually bequeath a legacy to the other, unless they had a common child. The property thus lost to the person named in the will was styled cadiica. The lex Papia determined its devolution, and the order in which the patres mentioned in the wiU should, as the reward for their paternity, be allowed to claim the caduca {Jus caduca nndicandi). The fruitful, therefore, succeeded, ex lege, to the caduca, and not by virtue of the terms of the will. Should it happen that no heir or legatee had chil- dren, the caduca were swept into the mrarium or treasury of the people, in order, says Tacitus, that, failing the rights of paternity, the people, as being the common father, should realize the for- feited gifts. In the course of time, forfeitures arising from other causes incident to a will were described as in caiisd caduci. 80 OUTLINE OF EOMAN HISTORY. Lex .ffilia Sentia, A.D. 4— lex Fusia (or JFuria) Caninia, A.D. 8. Enfranchisement.— Mariixs and Sylla, Pompey and Caesar, having armed thousands of slaves, threw into Eome legions of freedmen. Added to this, citizens had of late enfranchised their slaves in order to increase the numher of their clients — some- times, in order that the slaves, having become citizens, should receive their share in the gratuitous distributions, but still more frequently, at the moment of death, in order that a long retinue of freedmen, with the cap of liberty on their heads, might follow the funeral car of their former master. To check these revolu- tionary practices, the lex ^lia Sentia enacted that slaves who, by way of punishment, had been placed in irons by their master, or who had been branded with a hot iron, or who had been accused and found guilty of a crime, or who had been delivered over to combat with either man or beast, or had been thrown into a gladiatorial school or prison, and afterwards enfranchised, could thereby only acquire the right of peregrini dediticii.- Slaves; who had not sufEered either of the before-mentioned iudignities, by enfranchisement became either Latini Juniani, or Eoman citizens. The Latini Juniani were so styled because they acquired the privileges of Latins by virtue of the lex Junia. If the slave was, firstly, more than thirty years of age; secondly, in the quiri- tarian ownership of the master ; and, thirdly, enfranchised " for just cause," either by vindicta, census, or testament, he became a Eoman citizen. If either of those three essentials was wanting, he became merely a Latin. The instances given by Gains of "j'ustce causce" are the enfranchisement of a son or daughter, of a natural brother or sister, of a nurse or teacher, of a slave for the purpose of making him an agent [procurator), or of a female slave for the purpose of marrying her. A slave under thirty years of age would, however, by enfranchisement, become a Eoman citizen if his master, being insolvent, instituted -him heir in his testament. The lexJElia Sentia also provided that any one who, by reason of being under thirty when enfranchised, became a Latin merely, might subse- quently acquire the Eoman citizenship by marriage with a Eoman, or a Latin, and the possession of a son by that marriage THE ROMAN EMPIRE. 81 of one year of age, upon proof of those facts by seven Eoman citizens of full age before the competent authority. No provision was made by which the dediticii could become Eoman citizens. They were forbidden to live within one hundred miles of Eome. If the enfranchisement was in fraud of creditors, or of a patron, it was void. If the master was under twenty years of age, he could only enfranchise by vindicia before the council after having shown just cause. The Lex Fiisia Caninia forbade the enfranchisement by testament of more than a given proportion of the testator's slaves. The owner of two might enfranchise both ; of from two to ten, one-half ; of from ten to thirty, one-third ; of from thirty to one hundred, one-fourth ; of more than one hundred, one-fifth. In no case could more than one hundred be enfranchised by testament. , Fidel commissa — Codicilli. — By the then law, precise legal espression, accompanied by the strict observance of , certain formalities, was necessary to the due execution of a -will. Certain testamentary dispositions, if made, could not be enforced by the aid of the civil law. The testator in such cases had to trust to the honour of his heirs {fidei committere). Such disposi- tions were styled Jldei commissa. Written without the solemnities of a will, the documents containing them were called codicilli. Augustus was several times instituted heir. In each case- he made it a point of duty faithfully to execute the trust. He ordered the consuls to exert their authority to the like effect. The practice gained general favour and was made law. Trusts and codicils became general. . Licensed Jurists— Responsa prudentum. — ^Augustus, wishing, so he said, to give to the responsa prudentum more authority than they theretofore enjoyed {ut major juris auctoritas haberetur), created a class of- privileged jurists, who thus became officials invested by him with the right of responding under imperial sanction. The opinions {responsa) of these jurists were given under the sanction of their seals {responsa signata). It does not, however, appear that the creation of this privileged class of N. Cf 82 OUTLINE OF ROMAN HISTOEY. jurists took from other jurists the right of giving opinions : it merely gave to the responsa prudentum of the privileged a value they otherwise would not possess. At this period responsa prudentum had not the force of law which they afterwards obtained {legis vicem oMinent). Augustus, so far as we know, merely introduced the thin edge of a wedge destined to play a mighty part in the moulding of Eoman law. Augustus appears personally to have consulted these Jurists in matters of legal douht. Thus, when he had to determine a point regarding codicils, he convoked the jurists and submitted the matter to them. Pomponius says : — " Before the time of Augustus, the right to give opinions publicly concerning the law had not been con- ceded by the chiefs of the republic. All who considered them- selves sufficiently learned were at liberty to give their opinion to those who thought fit to consult them. These opinions were not given under the seal of the jiirists who delivered them, but, in many cases, the jurists themselves wrote to the judge; in other cases, the parties who went to oons\ilt them took with them witnesses, who testified before the judge as to the opinion given, Augustus, whose object it was to give additional authority to the law, was the first, as already stated, who gave to the jurists the right to express their opinion by virtue of imperial autho- rity; and this authorization being once established, it was supplicated as a favour." Constitutiones Principum. — The generic term " Constitutiones " embraces all imperial acts. Those acts are divisible into three distinct classes, viz. : (1) JSdicia, i. e., general ordinances ; (2) Decreta, i. e., judgments delivered by the emperor person- ally in his tribunal ; (3) Mandata, epistolw, rescripta, i. e., orders issued to individual lieutenants, magistrates, &c., or to private individuals who petitioned him. When those constitutiones were first introduced is matter of discussion. Some writers date their rise from the reign of Hadrian (a.d. 117—138). Ortolan makes them commence with Augustus. His reason appears to be almost conclusive. We know that Augustus, who never shirked labour, transacted THE ROMAN EMPIRE, 83 judicial business even at night, altogether regardless of the sol occasus of the Twelve Tables. Augustus, however, and his immediate successors always took care to obtain the sanction of the people, or of the senate, never allowing it to appear that they issued edicts or decrees except in virtue of the functions conferred upon them. Lex de Imperio— lex Curiata— Lex Regia.— Vast discussion oohceming these three terms has practically ended in this— the act styled in the case of the king lex regia or lex curiata ; in that of the repubHo, lex curiata; and lastly, in the case of the emperors, lex regia or lex de imperio, means, wherever either term is met with in Eoman law, but one and the same thing, i. e., the inves- titure of the supreme power — the imperium. The system of the imperial government as it was instituted by Augustus, and maintained by those princes who imderstood their own interests and those of the people, may be defined to have been an absolute monarchy disguised by the forms of a commonwealth. The masters of the Eoman world surrounded their thrones vnth darkness, concealed their irresistible strength, and humbly professed themselves the accountable ministers of the senate, whose supreme decrees they dictated and obeyed. The face of the court corresponded with the forms of the admiuistration. The emperors, if we except those tyrants whose capricious folly violated every law of nature and decency, disdaiued that pomp and ceremony which might offend their countrymen, but could add nothing to their real power. In all the oflSces of life they affected to confound themselves with their- subj'eots, and maintaiued with them an equal intercourse of visits and entertainments. Their habits, their palace, their table, were suited only to the rank of an opulent senator. Their family, however numerous or splendid, was composed entirely of their domestic slaves and freedmen, Augustus or Trajan would have blushed at employing the meanest of jthe Romans in their menial affairs, which, in the household bedchamber of a limited monarch, are so eagerly soKcited by the proudest nobles of Britain. (Gibbon, I. 109.) The domestic relations of Augustus were not satisfactory ; the G 2 84 OUTLINE OF KdMAN HISTORY. detauoliery of Ms daughter Julia was to him a soiirce of great grief. It is said that when he felt death approaching, he called for a mirror, arranged his hair, and said to the bystanders : " Have I played my part weU ? " Being answered in the afiBr- matiye, he added, " Vakte et plaudite " — farewell, and grant me your applause. He died on the 19th August, a.d. 14, eet. 79. His testament was puhlicly read in the senate. He bequeathed as a valuable legacy to his successors the advice to confine the empire within those limits which nature seemed to have placed as its permanent bulwarks and boundaries. On the west, the Atlantic Ocean, the Ehine, and Danube. On the north, the Euphrates. On the east and towards the south, the sandy deserts of. Arabia and Africa. The people erected altars to him, and, by a decree of the senate, the month Sextilis was thenceforth called " August." The reign of Augustus has necessarily occupied considerable space. It is a point of departure in Roman history. Tacitus says that at this period consuls, senators, and knights were rapidly degenerating into a state of abject servitude, and that the higher the dignity of the individual, the lower was his probity (Ann. 1. 7). He gives a graphic account of the con- temptible conduct both of the senate and Tiberius — who had been appointed by Augustus heir to two-thirds of his estate — when the time came to determine the position Tiberius should occupy in the state. He describes how, by feigned humility and reluctance to assume so important a position, Tiberius con- trived to make himself the successor of Augustus. Tiberius, — who assembled the praetorian guards at Eome, and lodged them in a fortified camp under the pretext of relieving Italy, — was intentionally suffocated. Caligula, whose favourite companions were actors, gladiators, and prostitutes, was murdered in his own palace. Claudius, at the instance of Agrippina, his wife,, was poisoned. The monster Nero, who is said, among his other viQainies, to have fired Eome that he might enjoy the spectacle of a city in flames, put an end to his own existence in order to escape the fury of Galba.. It was about this time that the praetorian guard assumed the right of electing the emperors. The sanction of the senate THE KOMAN EMPIRE. 85 became an empty form. Not long after, tlie legions in the provinces claimed to exercise the like privilege. Galba was assassinated in the forum. Otho, fearing Vitelliixs, committed suicide. Vitellius was murdered. The death of Titus was commonly laid to the charge of his brother Domitian. Domitian —who concluded peace with Decebulus, the king of the Dacians, undertaking that the Eomans should pay him tribute — was assassinated by, or at the instance of, his wife. In short, out of the eleven emperors who reigned between Augustus and Trajan, two only, i.e., Vespasian and Nerva, died natural deaths. "During fourscore years — excepting only the short and doubtful respite of Yespasian's reign — Eome groaned beneath an unremitting tyranny which exterminated the ancient families of the republic, and was fatal to almost every virtue and every talent that arose in that unhappy period." (Gibbon, I. 129.) These facts give some idea of the state of things among what are termed the upper classes ; but to the student of Eoman civil law, there is another and more pleasing phase of the then existing Roman life. Ortolan says : — " The period of the [early ?] emperors was that in which the civil law made the greatest stride : jurists were multiplied, and numerous works on law made their appearance. All the principles of law were developed and connected together, and jurisprudence became a general science closely studied in every branch. Political rights, however, did not undergo much change, for despotism is not an innovator. Augustus had laid down all the fundamental bases of absolute power, and his successors had only to allow them to be consolidated by time. New institutions are rarely met with, even at long intervals." The Two Schools — The Sabinians or Cassians, and the Procu- leians or Pegasians. — Diiring the reign of Augustus there were two representative men, Labeo and Capito. Labeo, the praetor, independent and incorruptible, was learned, not merely in the law, but in science in general, and was gifted with originality. He did not hesitate to suggest, and at times to make, innova- tions in the existing law. The consul, Oapito, a favourite of his imperial master, was also learned in the existing law, but he 86 OUTLINE OF ROMAN HISTOKY. loved wealth and power, and hated change ; he continued to present things as they had been presented to him. To these jurists Pomponius refers the origin of the two famous Roman schools of law, respectively known by the names of the Sabinians or Cassians, and the Proculeians or Pegasians. It was from Proeulus and Pegasus, two of the most illustrious of the pupils of Labeo, and from Sabinius and Cassius, pupils of Capito, that the respective schools took their names, for it was not till the disciples had succeeded to their masters that the two schools were in fact founded as rival teachers. The difference between the two schools was rather matter of tendency to change or retain than anything else. There was no inflexible line of demarcation. On more than one occasion the followers of one system abandoned the doctrines of their own school and adopted those of the other. New cases gave rise to fresh controversies. The result was that for nearly two centuries — ^the life of the schools — every legal proposition that admitted of fair discussion was thoroughly sifted by each. With the exception of the kx Junia Norhana, this period furnishes no new law worthy of record. Private law, however, became a science. Lex Junia Norbana, A.U.C. 772 (A.D. 19). — ^By this law all freedmen were divided into two classes depending on the mode of enfranchisefaent, viz : — enfranchised citizens or enfranchised Latins, styled Latini Juniani. The former enjoyed full liberty and all citizen rights ; the latter had only the rights of Latin colonists. They had not the testamenti /actio, but they might be provided for in a codicil. Gibbon sums up the history of Eome during this century thus : — " Happily for the repose of mankind, the moderate system recommended by the wisdom of Augustus was adopted by the fears and vices of his immediate successors. Engaged ia the pursuit of pleasure, or ia the exercise of tyranny, the first Caesars seldom showed themselves to the armies, or to the provinces ; nor were they disposed to suffer that those triumphs which their indolence neglected should be usurped by the conduct and valour of their lieutenants. The military fame of a subject was considered as an insolent invasion of the imperial THE KOMAN EMPIRE. 87 prerogative, and it beoame the duty as well as interest of every Eoman general to guard the frontiers entrusted to his care, without aspiring to conquests which might have proved no less fatal to himself than to the vanquished barharians. The only accession which the Eoman empire received during the first century of the Christian era was the province of Britain. In this single instance, the successors of Osesar and Augustus were persuaded to follow the example of the former, rather than the precept of the latter. The proximity of its situation to the coast of Graul seemed to invite their arms ; the pleasing though doubtful intelligence of a pearl fishery attracted their avarice ; and as Britain was viewed in the light of a distinct and insulated world, the conquest scarcely formed any exception to the general system of continental measures. After a war of about forty years, undertaken by the most stupid (Claudius), maintained by the most dissolute (Nero), and terminated by the most timid (Domitian), of all the emperors, the far greater part of the island submitted to the Eoman yoke." " Such was the state of the Eoman frontiers, and such the maxims of imperial policy from the death of Augustus to the accession of Trajan." (Cap. 1.) 88 OUTUNB OF ROMAN HISTOKY. Chapter VIII. THE EMPIRE — continued. THE SECOND OENTTJE.Y. i.e., A.TX.C. 853 till 953;-A.D. 100 till A.D. 199. Emperors of Rome. A.D. to 117. TRAJAN (his reign commenced A.r. 98). 117—138. HADRIAN. 138—161. ANTONINUS PIUS. 161—180. MARCUS AURELIUS ANTONINUS. 180—193. M. COMMODUS ANTONINUS. /PERTINAX. 193. DIDIUS JULIANUS. ' SEPTIMIDS SEVERUS (LUCIUS). Jurists. Temp. Teajau— P. JUVENTIUS CELSUS, NERATIUS PRISCUS, PRISCUS JAVOLENUS. Temp. Habbian— ALBURNUS VALENS, SALVIUS JULIANUS, SEXTUS CJEOILItTS AERICANUS. Temp. Antootntts Pros— TERENTIUS CLEMENS, SEXTUS POM- PONIUS. Temp. MAEotra Atjeelibs— PAPIRIUS JUSTUS, TARRANTENUS PATERNUS, Q. CERVIDIUS SG^ilVOLA, ULPIUS MAR- CELLUS, GAIUS. Temp. SEPTraros Sevbetis- ^MILIUS PAPINIANUS, CLAUDIUS TRYPHONIUS. THE ROMAN EMPIRE. The Orators, Historians, Philosopliers, Poets, &c., of the Period. SUETONIUS (CAIUS TRANQUILLUS), historian, flourished about A.B. 100. FLOEIS (LUCIUS ANNiEUS), historiau, temp. Teajan and Habeian,. GELLIUS (AULUS), prose writer, author of Xoctes Attica, horn ahout A.D. 130, died [?]. Trajan. — Trajan was bom at the town of Italica^ in Spain. He was the first Eoman emperor who was not a native of Italy. He was one of the most nohle and able rulers that Eome ever had. One of his first acts was the establishment of a system of national education for the sons and daughters of the poorer classes of citizens. He founded the TJlpian Library {Bibliotheca Ulpia) at Eome. The virtue and example of his wife and sister materially influenced the conduct of the Eoman ladies. The notion of paying tribute to the Dacians^ was to him intolerable. He fought and conquered them, first in a.d. 101, and agaiu in A.D. 105, when Dacia (modem Moldavia, WaUachia, and Tran- sylvania), was made a new Eoman province. The Oolumna Trajana, in commemoration of this conquest, was erected A.D. 114.S Hadrian. — With the exception of the last three years of his reign, in wMch he was guilty of many acts of cruelty and iu- justice, attributed by his adopted son and successor to a mental disease, Hadrian was a good ruler of his people. He surrendered the eastern conquests of his warlike predecessor. He restored to the Parthians* the election of an independent sovereign, and withdrew the Eoman garrison from Armenia,' Mesopotamia,^ and AssjTria.' For the purpose of better jurisdiction, he divided Italy into four regions, and placed a consul at the head of each. 139. '171. ''About 250 years after his death, ' He subdued the vrhole of Arabia thesenate, in pouring out the customary Petrcea [263]. , Mesopotamia [265] re- acclamations on the accession of a new- cognised the supremacy of Home. emperor, -wished that he might surpass Every day the astonished senate re- the felicity of Augustus and the virtue ceived, so -we are told, the inteUigenoe of Trajan." (Gibbon I. 121.) of ne-w names and ne-w nations that ^ 293. ^ 263. « 265. ' 251. aokno-wledged his sway. 90 OUTLINE OF KOMAN HISTORY. He made journeys, largely, it is said, on foot, throughout the empire, correcting abuses and making improvements. He decreed that the child horn of a female Roman citizen married to a Latin should be a Eoman citizen. The most senseless act of his life was an edict forbidding the Jews to practise the rite of circum- cision. The Jews rose in arms under Barcochab. It is said that 580,000 Jews were slain by the ESmans. Those that survived and were not sold as slaves were forbidden to live in or near Jerusalem — a sad fate, but not worse than that to which the Old Testament tells us the Jews in the time of their prosperity and in the name of Grod had subjected not a few other nations. The Jews thus dispersed in time became the pioneers of commerce throughout the globe. The Jews have never since had a terri- tory of their own, but may it not be said that no nation has given them shelter without thereby deriving benefit to itself ? Lex de Responsis Frudentum — Sententise at Opiniones made part of the Lex Scripta. — By a rescript of the Emperor Hadrian the responsa prudentum of the official jurists acquired the force of written law, but only in cases where the jurists were unanimous (quibus permissum est jura condere) — {quce legis vicem ohtinent). From this period the responsa prudentum, when imanimous, must be taken as part of the kx scripta. Edictum Perpetuum, A.D. 131, — The work of the iUustrious. jurist, the prsetor Salvius JuHanus, that bore this title, appears to have been a code, or digest of the then praetorian law, to which imperial authority was given, and to which all praetors were obliged to conform. It appears, however, that subsequent praetors had the right of adding such accessory rules and forms - as altered circumstances necessitated or suggested. Aulus Ofilius, an intimate friend of Caesar, is believed to have been the first to make and publish a digest of the edicts of the praetors. He is mentioned by Pomponius.^ 1 Of Hadrian, Oibbon says :—" He to the most enlai-ged views, and the encouraged the arts, reformed the laws', minute details of oiTil policy. But asserted military discipline, and visited the ruling passions of his soul were all his provinces in person. His vast curiosity and vanity. As they pre., and active genius was equally suited vailed and as they were attracted by THE ROMAN EMPIRE. &1 Antoninus Pius.— It is said of tHs man that he was the most virtuous of all the Eoman emperors, and one of the nohlest beings that ever lived. He lived as a private citizen accessible to aU. He granted toleration to the Christians and protected them. By two constitutions in favour of slaves he enacted (1) That any one who killed his slave without just cause should, he dealt with as if he had killed the slave of another ; (2) That any master proved to have rendered the condition of his slave intolerable should be compelled to sell him. Owing to the almost total suspension of wars, the absence of violence and public crime, his reign of twenty-two years is historically a blank. During his reign and that of his predecessor, it is estimated that the standing military force of Eome amounted to 375,000 men, whose valour and discipline were well maintained, notwith- standing the leniency of the period. What finer monument to emperor or people ? It was in this reign and in that of Marcus Aurelius that the jurist Graius, now so famous for his Institutes, lived. Till the year 1816 G-aius or Cains was unknovrai to the modern world except by name. In that year Niebuhr, when at Yerona, dis- covered a copy of his Institutes written on a parchment that had previously borne other writing (a palimpsest). Who Graius was we do not know. It has been conjectured that he professed law in one of the minor towns of the empire, possibly in Asia Minor, but why I confess myself unable to say. He belonged to the school of the Sabinians. That he and his Institutes were well known in the time of Justinian appears to me obvious, unless there were many works similar to his, of which there is HO evidence, and which is highly improbable. I say that in my opinion his Institutes were well known in the time of Justinian, for it appears to me that the author of the Institutes of Jus- tinian, though not sufficiently candid to admit it, simply brought difEerent objects, Hadrian was by turns judged worthy of empire ; and the an excellent prince, a ridiculous sophist, tediousness of a painful illness rendered and a zealous tyrant. The general him at last peevish and cruel. The tenor of his conduct deserved praise senate doubted whether they should for its equity and moderation.' Tet in pronounce him a god or a tyrant ; and the first days of his reign, he pvrt to the honours decreed to his memory death four consular senators, his per- were granted to the prayers of the sonal enemies, and men who had been pious Antoninus." (I. 122.) 92 OUTLINE or ROMAN HISTOEY. Graius down to date, and wherein he otherwise deviated from his model did so to the no small disadvantage of the legal student. Marcus Aurelius Antoninus. — It is said of this prince, who became emperor in his fortieth year, that at the age of twelve he embraced Stoicism, that. he was severe to himself, indulgent as to the imperfection of others, just and beneficent to all mankind. War he detested as the disgrace and calamity of human nature, but when the necessity of a just defence called upon him to take up arms, he readily exposed himself to eight winter campaigns on the frozen banks of the Danube, the severity of which was at last fatal to the weakness of his constitution. It is said, how- ever, that he ordered or sanctioned a cruel persecution ■- of the Christians in Gaul in a.d. 177. Of him and his predecessor, who are referred to iu history as " The two Antonines," Gibbon says, " Their united reigns are possibly the only period of history in which the happiness of a great people was the sole object of government." (I. 124.) M. Commodus Antoninus. — ^Not long after the death of Aure- lius, his son Commodus, then about nineteen years of age, con- cluded peace with the Marcomani^ and Quadi,^ and returned to Home, where the love and veneration entertained for his father secured for him a welcome reception. Though nothing had been neglected by the anxious father, or by the men of virtue and learning by whom he had been surrounded, to fit him for his exalted position, there are few characters in history which iuspire so unmingled a feeling of disgust and detestation as does his.- During the first two years of his reign he wavered between the counsels of his father's friends and the temptation of his youthful associates, and contented himself with extravagances and plear Bures which were more or less excused by reason of his years. In A.D. 182, however, the discovery by Tn'm of a conspiracy plotted against him determined his future career. One evening, as he was returning through a dark and narrow ' 124. 2 139. THE ROMAN EMPIKE. 93 portico in the amphitheatre to his palace, an assassin rushed upon him with a drawn sword, exclaiming, " The senate send you this !" Tho'agh the deed was not executed, and though it was discovered that the author of the plot was his licentious and jealous sister Lucilla, and not the senate, yet the words of the would-be assassin produced in Oommodus an indelihle impres- sion of fear and hatred against' the whole body of the senate. Nearly all the friends of his father and those who. had risen to eminence under him were put to death. The remainder of his life was an uninterrupted series of sanguinary and disgusting excesses. He gratified his lusts in a harem, which, it is said, con- tained 300 concubines. He fought as a gladiator in the circus more than 700 times, where he slew wild beasts and human beings, for which he demanded worship, as a second Hercules. [Finally, having resolved to put the consuls for a.d. 193 to death, together with a number of others, on the 1st Ja,nuary of that year, he drew up the list of those whose fate he had sealed. The list fell into the hands of his mistress Marcia, who to her astonishment found her own name at its head, together with those of the prsefect Lsetus and the chamberlain Eclectus, who . all three had endeavoured to dissuade him from the execution of his plan. The fact was communicated by Marcia to Lsetus and Eclectus. Oommodus was poisoned that evening ; as the poison operated, however, but slowly, he died strangled by a celebrated athlete during the night of the 31st December, a.d. 192. The news of the death of Oommodus was glad tidings to all but the praetorian guard. Pertinax, the immediate successor of Oommodus, reigned for eighty-six days. His virtues, his moderation, his expressed and obvious determination to repair the damage done to the state and to private individuals by Oommodus, so far as in him lay, once more made life tolerable to all but the prsetorian guards, the household dependents, and the debauched associates of the late emperor. To them virtue was a hateful thing. The praetorian guards dreaded a return to discipline and order. Lffitus, the prefect of the prsetorian guard, awoke to the fact 94 OUTLINE OF ROMAN HISTORY. that the new emperor would reward a servant, but would ndt be ruled by a favourite. Two attempts to place others in the emperor's stead having failed, a general sedition broke out in the camp. Some two or three hundred soldiers marched at noonday to the palace ; the gates were thrown open to them by the soldiers on guard. Pertinax ^disdained either to conceal himself or to fly ; he fell pierced with many wounds on the 28th March, a.d. 193. From that date the Eoman republic was a military despotism. Didius Julianus. — From the ramparts the praetorians pro- claimed that the Eoman world was to be disposed of to the highest bidder. Salpicianus, the father-in-law of the late emperor, offered 5,000 drachms (above £160) to each soldier; Didius Julianus, a wealthy senator, bid 6,250 drachms. The camp gates were thrown open to him. He was declared emperor. The prsetorian guard, after taking the oath of alle- giance to Didius Julianus, led him to the senate, who obse- quiously conferred on him every branch of imperial power. The armies of Britain, of Syria,^ and of Pannonia^ refused to ratify the ignominious bargain of the praetorians. Septimius Severus, who was at the head of the army of Pannonia,^ crossed the Alps,, and hastened.with his legions towards Eome. Arrived at Interamna,' about seventy miles from Eome, Septimius Severus despatched his emissaries to the Capitol to assure the guards that on condition of their abandoning Julianus and the perpetrators of the murder of Pertinax to the justice of the conquerors, he would not treat the murder as an act of the whole body of the praetorians. The praetorians, fearing the Pannonian legions, seized the greater part of the assassins, and signified to the senate that they no longer defended the cause of Julianus. Severus was acknowledged emperor, and divine honours were decreed to Pertinax. Julianus was deposed, con- demned to death, and beheaded as a common criminal on the 2nd June, 193, ^ 251 2 141. 3 128. , XHE ROMAN EMPIRE. 93 It is at this stage, that the student of Eoman history is per- mitted to turn from excitement, at times pleasing, at others revolting, to the calm study of Eoman private law. It is there and there alone that the principles of Eoman social life can be foimd. He cannot, therefore, do better at this point than to read the Institutes of Gaius {see post, pp. 200 et seq.). 96 OUTLINE OP ROMAN HISTORY. Chapter IX. THE EMPIEE— coraWjiMei. THE THIRD CENTURY, i, e., A.TT.C. 953 till A.U.C. 1052 ;— A.D. SOO to A.D. S99. Emperors of Kome. A.D. to 211. SEPTIMIUS SEVEKUS. 211—217. CAEACALLA. 211—212. GETA. 217—218. MACEINUS. 218—222. ELAGABALUS. 222—235. AliEXANBER SEVERUS. 235—238. MAXIMIN. ( GOEDLANUS I. 238. } ( GORDIANUS II. ( PUPIENUS MAXIMUS. 238 { ' ( BALBINUS. 238—244. GORDIANUS III. 244—249. PHILIPPUS. 249—251. DECnJS. „^ „^ ( HOSTILIANTJS. 251—254. { ( TEEBONIANUS GALLtTS. 253. .ffiMILIANUS. 253—260. VALERIAN. 260—268. GALLIENTJS. 268—270. CLAUDIUS II. 270—275. AURELLAN. 275—276. TACITUS. THE ROMAN EMPIRE. 97 A.S. 276. FLORIANUS. 276—282. PEOBUS. 282—283. CAEUS. 283-284. f^^^^^«- ( miMERIANUS. 284—305. DIOCLETIAN. 286—305. MAXIMIAN. Jurists. Fragments preserved by the Digest of Justinian. PAPESriAKr 596 ULPIAN 2462 PAUL 2083 CALLISTRATUS 99 ^LIUS MAECIANUS 2737 FLORENTINUS 427 ^MILIUS KACER 62 HEEEENIUS MODESTINUS 345 The Orators, Historians, Philosophers, Poets, &c,, of the Period. CLAUDIAjNUS (CLAUDIUS), poet, flourislied about a.d. 275 to A.D. 299. CALPURNIUS (TITUS), poet, flourished during this period. Septimius Severus. — After a stay of thirty days in Eoiae, Severus started with his legions first against Pescennius Niger, who was at the head of the army in Syria, and aftenvards against Clodius Albinus, at the head of the army in Britain, each of whom contested his right to the throne, hence once more oiTil war. Severus was ultimately successful. His triumph was marked by many acts of cruelty. Large numbers of the senators who had belonged to the party of his unfortunate com- petitors were put to death, and the noblest provincials of Spain N. H 98 OUTLINE OF ROMAN HISTORY. and Gaul were Involved in the like ruin.' Byzantium,' the strongest bulvi^ark of the Eomans against the barharians of Pontus 2 and Asia, adhered to the cause of Niger, even after his death. For three years it withstood the siege of Severus, but ultimately succumbed to famine, when, to the discredit of Severus, its magistrates and soldiers -^ere put to the sword, and, to the peril of the state, its fortifications were razed to the ground. When Severus had secured his position, however, it must be said to his credit that he governed with wisdom and Justice. Salutary laws, enforced with inflexible firmness, cor- rected most of the abuses that succeeded the death of Marcus. He secured peace and property at home, and revived abroad the ancient respect for the Roman name. He disbanded the preeto- rian guard, but substituted for it a military guard drawn from the legions of the frontier, into which were drafted from time to time the soldiers most distinguished for strength, valour, and fidelity. By this act he at once diverted the Italian youth from the exercise of arms, and overawed the senate and citizens of Rome by the presence of 60,000 armed men, mostly barbarians. He disdained the show of subservience to the senate, and where his predecessors had requested, he ordered. The command of his favourite troops became the first office of the state. There- tofore the prsetorian prsefect had been a simple captain of the guard ; he was placed by Severus at the head of the army, the finances, and the law. Plautianus was the first ; Papinian, the most famous of Roman jurists, was his immediate successor. Alas ! lawyers and historians taught that the emperor was freed from the restraint of civil laws ; they unblushingly said that he could command by his arbitrary will the lives and fortunes of his subjects, and was at liberty to dispose of the empire as of his private patrimony. He conferred on his two sons, CaracaUa and Greta, the rank of augustus and the revered name of Anto- ninus. When more than sixty years of age, he went to Britain, whore he subdued the barbarians of the north. He died at York in the sixty-fifth year of his age, in a.d. 211. The peace and glory of his reign made his contemporaries forget the ' 203. 8 248. THE ROMAN EMPIRE. 99 cruelties of its inauguration ; but posterity has ascribed to his military system the main cause of the decline and faU of the Eoman empire. It was during his reign that Eoman juris- prudence is regarded as having attained its full maturity and perfection. It was then that Papinian, Paulus, and Ulpian, the most celebrated of the Eoman jurists, flourished. Caracalla and Geta.— Severus, in his last moments, commended his two sons, Caracalla and Greta, to the army as his joint suc- cessors : he recommended concord to his sons. On the death of their father the two were proclaimed emperors. They both returned to Eome on the 27th Februaxy, a.d. 212. Greta was assassinated in his mother's chamber when she was endeavom-- ing to reconcile the brothers. In her presence, and in the presence and at the instance of Caracalla, 20,000 persons of both sexes, alleged to be the friends of G^eta, were put to death, and among them Papinian, who, being commanded by Cara- calla to make a studied apology for the assassiaation of Greta, replied : — " It is easier to commit than to justify a parricide." When an attempt was made to convince him that Geta had merited his death, he said : — " To accuse a person who has been assassinated unjustly is to be guilty of a second assassiaation." Caracalla, never to return, left the capital about a year after the death of Greta. He visited province after province, particularly those of the east : rapine and barbarity attended him. From a secure spot in the temple of Serapis at Alexandria' he viewed and directed the slaughter of many thousands of citizens and strangers. In March, A.D. 217, he was assassinated by a centu- rion named Martialis, at the instance of Macrinus, the praetorian prsef ect, who entertained, and not without reason, fears concerning his own safety. Two important matters in the legal history of the Eomans mark this reign. Execrated by the virtuous and those who had anything to lose, Caracalla secured the support of the soldiery by the most extravagant liberality. To enable him to provide the necessary funds he had to resort to two expedients. 1 223. h2 100 OUTLINE OF KDMAN HISTORY. All Subjects Citizens, A.D. 212 (A.U.C. 965).— By an enactment of the emperor Caracalla, all Eoman subjects were made Eoman citizens, " In orle Romano qui sunt, ex constitutione imperatoris Antonini cives Bomani effecti sunt." The real object of this apparent act of grace was, according to Dion Cassius, to swell the revenue. Caracalla first 'increased the amount of the taxes payable by citizens, and then increased the number of citizens. Caracalla placed all on a level, but that level was subjection to the imperial will. The' boast, "Jam a Eoman citizen," had long been a thing of the past. There is considerable doubt as to the true meaning and effect of this enactment, but there is no doubt that after, as weU as before it, dedititii and Latini Juniani were well known in Eome and its provinces. From this period peregrini were those who were in fact strangers to Eome, barbarians, mercenaries in the pay of the emperor. The idea attached to the word peregrinm was thus changed a second time. Eoman slaves thenceforth had to be obtained from beyond the frontiers of the Ehine, the Danube, of Asia Minor, or of Eoman Africa. This constitution, which gave to all subjects the rights of Eoman citizenship, did not give to all Eoman territory the status of ager romamis. Leges Julia et Papia Foppaea Modified. — Caracalla, who had doubled the impost upon inheritances, legacies, donationes mortis causa, and enfranchisements, before he made all Eoman subjects Eoman citizens, also abrogated that portion of the leges Julia et Papia Poppcea that gave the cadiica to those named in the wUl. who had children, and swept the whole caduca into the fscus. Hodie ex constitutione imperatoris Antonini omnia caduca fisco. vindicantur. Maerinus, A.D. 217— 218.— Three days after the assassina- tion of Caracalla, the troops, with some reluctance, proclaimed Maerinus .emperor. They despised his military talent, and- suspected his personal valour. The senate ratified the choice, as matter of course, though indignant that a man of equestrian THE ROMAN EMPIRE. 101- rank should dare to don the purple. The prodigality of Cara- calla had left the exchequer low. Macrinus, to meet the exigency, essayed the r61e of reformer. He tried economy in the army. A general rehellion was the result. Bassianus, who was falsely, hut in his supposed interest, alleged to he the natural son of Oaracalla, was high priest of the sun at Emesa ' ia Syria, where a large numher of the troops were then stationed. Bought over hy the grandmother of Bassianus, the troops at Emesa declared Bassianus emperor, May 16th, a.d. 218. Macri- nus marched to meet him, but in the heat of the battle made a shameful and precipitate flight. He died a few days later. Elagabalus (or Heliogabalus). — The sun was worshipped at Emesa under the name of Heliogabalus. As pontiff, Bassianus presumed to adopt the sacred name. His sole serious object in life, if serious it can be called, appeared to be the triumph of the worship of the god of Emesa, to whom he attributed his elevation. That end he endeavoured to secure by costly and showy proces- sions through the streets of Eome, and by sacrifices celebrated in the temple with every circumstance of pomp. Such was the gross- ness of his sensuality that it is said even the licentious soldiery blushed at the object of their choice. Mesa, his grandmother, by whose instrumentality he had been placed on the throne, feeling that his glaring vices must ere long destroy him, per- suaded him (a.d. 221) to adopt his cousin Alexander, and to invest him with the title of Caesar, " that his own divine occu- pations raight be no longer interrupted by the cares of earth." Alexander became popular ; Elagabalus grew jealous. .Eeport said that Alexander was dead. The troops refused to be pacified. Elagabalus, mortified at the attachment shown to Alexander, punished the leaders of the mutiny. Elagabalus was massacred by the enraged praetorians. His corpse was dragged through the streets, and thrown into the Tiber, March 10th, A.D. 222. Alexander Severus (A.D. 222— 235).— Alexander, born at Acre, in. Phoenicia, was elevated to the throne when in his seventeenth 1250. 102 OUTLINE OF ROMAN HISTOKY. year. He was a virtuous youth, endowed with excellent under-f standing, fond of study and the society of the learned. Ulpian, the great jurist, was his chief adviser and a frequent guest at his tahle, which was served with the most frugal simplicity. With the approhation of the senate, his mother, Mammsea, chose sixteen of the wisest and most virtuous senators as a perpetual council of state. On his accession the reins of govenmient were in the hands of his mother, and Msesa, his grandmother. Maesa died shortly after. Mammsea continued her influence over her son and the affairs of state during the whole of Alexander's reign. She, her son, and the council devoted their energies to the redress of the damage done to the state hy Alexander's immediate pre- decessors, the consequence being that his thirteen years' reign secured the love and gratitude of [the people as distinguished from the army. The dignity, the freedom, and the authority of the senate were restored, and every virtuous senator knew and felt that he could approach the person of the emperor without fear and without a hlush. Mammsea, though wishing well to the empire and her son, through jealousy was guilty of gross cruelty to her son's first wife and her father. She secured the banish- ment of the former and the death of the latter. By the most gentle arts Alexander laboured to inspire the fierce and lawless soldiery with a sense of duty, and endeavoured to restore the semblance, at least, of that discipline for which the Roman legions had been so famous, and to which Eome was mainly indebted for its greatness. His attempt, however, proved fatal, not merely to TJlpian and others who co-operated with him, but eventually to himself. The attachment of the guards to their youthful prince induced them at first to think that the attempted reform was the work of Alexander's advisers. Their anger centred itself on their preef ect, Ulpian, who fell a victim to their fury, being assassinated at the feet of the emperor, who vainly strove to cover him with the purple. The historian Dion Cassius, who had commanded the Pannonian legions, escaped their fury by retreat at the emperor's entreaty to his vUla in Campania. Alexander was murdered in Gaul, together with his mother, during an insurrection of the legions, headed by Maximin. TEE llOMAN EMPlllE. 103 It is reported that when at Antioohi during his Persian expe- dition, which, if not a failure, could hardly be called a success, he ordered the punishment of some soldiers who had been dis- covered in the baths of women. That act excited sedition in the legion to which the men belonged. Hearing of it, Alexander ascended his tribimal, and in a modest but firm manner declared it to be his intention to correct the vices introduced by his pre- decessors, and to maintain the discipline which could not be relaxed without the ruin of the Roman name and empire. Being interrupted by the clamour of the soldiers, he said, " Eeserve your shouts tiU you take the field against the Persians, the Grermans, and the Saxmatians. Be silent in the presence of your sovereign and benefactor, who bestows upon you the corn, the clothing, and the money of the provinces. Be silent, or I shall no longer style you soldiers, but quirites (simple citizens), if those, indeed, who disclaim the laws of Eome deserve to be ranked among even the meanest of the people." Being then threatened by their, brandished arms, he added, "Tour courage would be more nobly displayed in the field of battle. Ton can destroy me, but you cannot intimidate me. The justice of the republic would punish your crime and would revenge my death." The legion still retaining their, threatening bearing, he cried out with a loud voice, " Citizens ! lay down your arms and depart in peace to your respective habitations." The tempest was instantly appeased ; grief and shame took the place of defiance. The men laid down their arms and retired, not to their camp, but to the inns of the city. After thirty days, and after the execution of the tribunes, whose connivance had occasioned the mutiny, Alexander restored the men to their places in the legion, which gratefully served him while living, and revenged him when dead. "We are told that no sooner had Alexander returned from Persia than he marched against the Germans ; that he was at the head of a large army on the borders of the Rhine, when Maximin, a soldier of fortune who had risen from the condition of a Thraeian peasant to high command, stimulated the discon- tent of the soldiers, and incited his emissaries to ask the men ' 250. 104 OUTLINE or EOMAN HISTOKY. how long they intended to submit to a man who was no general hut the timid slaye of his mother and the senate, and to ask them why they did not select as their prince and general a real soldier educated in camps and exercised in wars, who would assert the glory and distribute among his companions the treasure of the empire. It' is said that shortly after, when Maximin went on the parade ground, the troops saluted him emperor, after which they hastened to the murder of Alexander ; that Alexander, perceiving their intention, withdrew to his tent ; that he was followed by a tribune and some centurions ; that instead of receiving them with manly resolution, he, with unavailing cries, entreated them to spare his life. The reader may find it dijBBcult to reconcile these two alleged incidents, though it is easy to reconcile the former with conscious virtue, and to sup- pose the latter , to be the lying version of the scoundrel who caused the death of a noble man. For a long time after the death of Alexander Severus history is silent as to jurisprudence. It is occupied solely with military seditions, emperors reigning for a few months, armies fighting in support of their respective candidates, and the mention of the numerous pretenders to imperial rank. Maximin (A.D. 235 — 238). — -During the three years of this man's reign he neither visited Eome nor Italy. He trampled on every principle of law and justice. Noble birth, accomplish- ments, or knowledge excluded the possessor of either from the imperial presence. The aristocracy were plundered and mur- dered ; the treasure of every city reserved for the purchase of com, or the cost of the public games, was confiscated ; the temples were stripped of their ornaments of gold and silver ; a universal cry of execration and prayer for vengeance went up. Gordianus, the proconsul of the African province, was com- pelled by the African legions to accept the imperial purple in his eightieth year. His son was declared his colleague in the imperial dignity. The Eoman senate unanimously and gladly ratified the choice and appointments. Maximin, his son and adherents were pronounced common enemies. The senate in the meantime assumed the reins of government, and made THE ROMAN EMPIRE. 105 arrangements to meet Maximin in the field. Unhappily the younger Grordian, who went out to meet the enemy, was killed. He died honourably, sword in hand. The news of his death paralyzed the old man, his father. He put an end to his life, after a reign of thirty-six days, in March a.d. 238. Maximus and Balbinus. — The Eoman senate, on the news of the fate of the Grordians, conferred the imperial dignity on Maximus and Balbinus, two distinguished senators, the latter a polished orator and poet, the former a rougher but able states- man. The multitude, jealous of the senate, demanded the ele- vation of the younger Grordian, a lad of thirteen, to the imperial rank, in token of their gratitude to his predecessors for the sacrifice of their lives in the national cause. The senate con- ferred on him the title of Csesar. Meantime, Maximin had crossed the Alps on his way to Eome. In April, a.d. 238, he appeared before Aquileia.^ The city was ready for him, and the generals had rendered the surrounding country an unde- sirable camping ground. Want bred disaffection in his legions. A band from the praetorian guard of Alba,^ entrusted with the execution of the sentence of the senate, met with no resistance. The ponderous monster and his son were slain in the imperial tent. His legions swore allegiance to the senate, to Maximus and Balbinus. That Maximus and Balbinus proved themselves all that was expected was freely admitted by the senate and the people. Neither the senate nor the people were, however, the soldiery. The whole city a few days after unsuspectingly gave itself up to the Capitoline games. While aristocracy and commonalty were so engaged, a band of assassins from the prsetorian guard entered the palace, seized the emperors, and finally, to prevent their rescue, mangled them with a thousand wounds. » Gordianus III.-^After the murder of Maximus and Balbinus the soldiers carried the boy Grordian to the camp, where they saluted him Augustus and emperor. Possibly the recollection 1 126. 2 111. 106 OUTLINE OF. KOMAN HISTORY. of the reign of Sfeptimius Severus gilded the pill with many. Misitheus, a learned man of the time and a master of rhetoric, had a daughter. The young emperor fell in love with and married the daughter, and appointed his father-in-law praetorian prsefect. About this time the Persians threatened Antioch-^ Misitheus advised Gordianus to tak§ the field against them. He did so, and so far as history records opened for the last time the temple of Janus. He was successful, and had the pleasure of announcing the fact to the senate, though modestly, and possibly deservedly, ascribing his good fortune to Misitheus. Be that as it may, the prosperity of Gordianus ended with Misitheus. The death of Misitheus was followed by suggestions of poison. His successor as prsstorian prsefect, Philip, was by birth an Arab. It is hinted that he created an artificial scarcity in the camp, and then ascribed the distress of the army to the incapacity of the prince. We know this — The emperor was murdered March, a.b. 244, and Philippus was proclaimed emperor by the soldiery. Philippus (A.D. 244 — 249). — In order to captivate the people, Philippus solemnized the secular games which, since their insti- tution or revival by Augustus, had only been celebrated by Claudius, Domitian, and Severus. The mystic sacrifices were performed during three nights. Slaves and strangers were excluded. Five years after the accession of Philippus the legions of Moesia revolted in favour of one Marinus. Philippus sent the senator Decius to quell the insurrection. The legions of Moesia^ gave Decius the choice between the purple and death. He elected the former. Somehow or the other, Philippus met his death a few days after at Yerona' (a.d. 249). His son and associate in the empire was assassinated at Eome by the prsetorian guard. Decius (A.D. 249 — 251). — Decius was universally acknow- ledged by the senate and the provinces. This reign is primarily memorable as being the time when the Goths, who at a later 1 250. ■' 172. ■■< 126. THE ROMAN EMPIRE. 107 date sacked the Eoman Capitol, and reigned in Gaul, Spain, and Italy, first made a perceptible impression on tlie Eoman power. The inhabitants of Marcianopolis^ bought off the Invaders by the payment of a considerable sum of money. Not long after the Goths returned, and crossed the Danube a second time, under the leadership of Cniva, their king. The troops of Decius, who was defeated, fled in disorder. PhUippopolis^ suc- cumbed to the barbarians; 100,000 persons are said to have been massacred. Decius, having at length restored discipline and recruited his numbers, again met the enemy, when, beiag confident of victory, he refused to listen to any terms of accom- modation. The Goths fought, resolved on death rather than slavery. The Eomans were defeated, and perished in a morass, A.D. 251. The body of the emperor was never found. Gallus and Hostilianus. — Hostilianus, the only surviving son of Decius, was created emperor from a just regard for the memory of his father. Gallus was associated with him on account of his experience and ability. Gallus bought off the Goths from the Illyrian provinces, and promised to pay them an annual tribute. Hostilianus perished during a pestilence. Some said that Gallus had more than the pestilence to do with his death. The bribes of Gallus encouraged the Goths to fresh attempts, ^milianus, governor of Pannonia and Mcesia, en- countered, defeated, and pursued the enemy beyond the Danube. He distributed among his soldiers as a donation the money collected for the tribute. Gallus went out to meet his aspiring lieutenant. When the armies were in sight of each other, the soldiers of Gallus murdered him and his son, and thus put an end to the projected civil war in May, a.d. 253. .wffilmilianus, A.D. 253. — .^milianus reigned four months. He was slain by his troops on the approach of Valerian, bent on revenging the murder of his master Gallus, August, a.d. 253. Valerian (A.D. 253 — 260) and Gallienus (A.D. 253 — 268).— Valerian, who was about sixty years of age when made emperor 1 187. ' 188. 108 OUTLINE OF ROMAN HISTOKY. hj the unanimous voice of the Eoman world on account of his noble hirth, his unblemished manners, learning, prudence, and experience, united "with himself his son Gr.alHenus, a youth who did not reflect the image of his father. The whole period of these reigns was one uninterrupted series of confusion and calamity. The Franks, the Alemanni, the Goths, and the Persians attacked Rome from without. Nineteen pretenders to the throne attacked the empire from within. The Franks carried their devastations to the foot of the Pyrenees, and, having crossed those mountains, devastated Spain during twelve years, after which they seized the vessels in the Spanish ports, and trans- ported themselves to Mauritania.^ The Alemanni passed through the Phsetian Alps, advanced as far as Eavenna,^ and there dis- played their victorious banners in sight of Eome, a.d. 259. Valerian was then in the east, and Gallienus on the Rhine. The senators caUed out the praetorian guard, left to garrison the Capitol, and filled up their numbers by enlisting into their rants the stoutest and most willing of the plebeians. The Alemanni, astonished at their niimbers, retreated, but returned to Germany laden -with spoil. In a.d. 258 — 259, the Goths, sailiag round the eastern extremity of the Euxine Sea,' arrived at Trebizond,* a large and populous city, fortified by a double line of walls, and garrisoned by 10,000 men. "While the garrison was occupied in riot and luxury, the Goths were diligently erecting a lofty pile of fasciaes. In the silence of the night the Goths, sword iu hand, ascended the walls, entered the city, massacred the inhabit- ants, and stripped the temples and other buildings. They then ravaged the province of Pontus,^ and sailed off to their new establishments in the kingdom of Bosporus,® for the time being content with their acquisitions. Thus ended the first of the naval expeditions of the Goths. The second naval expedition of the Goths soon followed. The cities of Nicomedia,' Nice,' Prusa,' Agamea,' and Cius* were devastated, Nice and Nicomedia being left ia flames. In A.D. 262 the Goths made a third naval expedition. Cyzicus was sacked, Athens was seized. There the Goths abandoned > 56. 2 126. 3 232. ' 247. 5 248. « 231. ' 203, THE ROMAN EMPIRE. 109 themselves not merely to plunder, but to intemperance. WMle so occupied, the brave Dexippus, with a band of volunteers, successfully attacked their fleet. Greece for the moment showed signs of its ancient heroic greatness. Gallienus at length appeared in arms. The ardour of the Goths was checked, and their strength divided. Naulobatus, a chief of the Heruli, accepted an honourable capitulation, and with a large body of his countrymen entered the Eoman service. He was the first barbarian invested with the ornaments of consular dignity. Sapor, king of Persia,^ first seized Armenia,^ then the strong garrisons of Carrha and Nisibus, and subsequently devastated both sides alike of the Euphrates.' Valerian resolved to marcb in person to the defence of the east. He encountered the Persian monarch- near the walls of Edessa.* He was vanquished and taken prisoner. He and his troops laid down their arms a.d. 260. Valerian died the captive of Sapor, by whom it is reported he was treated with tbe greatest indignities. The news of his father's death is said to have rather gratified than displeased Gallienus. He made no attempt whatever to revenge. The news of invasions, defeats, and rebellions was received by him with a careless smile. Taking one day with affected contempt a particular product of a lost province, he carelessly asked, " Must Home be ruined if it is not supplied with linen from Egypt or arras from Gaul ? " It is needless to give the names of the nineteen pretenders to the throne, not one of whom enjoyed a life of peace, or died a natural death. In justice to many of them it may be said that they were rather driven to rebellion by fear as to their personal safety than i^-ged to it by ambition. Several of them were men of virtue, and almost all were possessed of vigour and ability. It may be said of Gallienus that though not destitute of courage, he was void of patriotism, and that he attempted everything but the arts of war and good government. Gibbon gays : — " He was a master of several curious but useless sciences, a ready orator, an elegant poet, a skilful gardener, an excellent cook, and a most, contemptible prince." In addition to its 1- 32° N., 60" E. ^ 263. ' 280. * 264. 110 OUTLINE OF ROMAN HISTORY. otlier ills, the Eoman world had to hear hetween a.d. 250 and A.D. 265 the ravages of a frightful plague. It is said that at one time during that period 5,000 died daily in Eome alone, that many towns were absolutely depopulated, and that one- half of the population of Alexandria^ perished. The army that was stationed on ,the Upper Danube invested their leader Aureolus with the purple. He passed the Alps, and occupied Milan {Midiolanum) ? He there challenged Grallienus to contest with him in the field the sovereignty of Italy. Grallienus, provoked by the insult, took arms against him. Aureolus was defeated, and, being wounded, retired to Milan. Grallienus itn- mediately laid siege to the place. Aureolus corrupted the besieging soldiery. Late one night, being informed that Aureolus had made a desperate sally from the town, Gallienus mounted his horse and rode at full speed to the supposed place of the attack. By an unseen hand he was mortally wounded on the 20th March, a.d. 268. Claudius II. (A,D. 268—270). — Claudius, a man of humble origin, but whose abilities had raised him to high offices under Decius, Yalerian, and Grallienus, ascended the throne when about fifty-four years of age. Aureolus attempted to negotiate with hiTin a treaty of alliance and partition. " Tell him," said Claudius, " that such proposals should have been made to GlaUienus ; he, perhaps, might have listened to them with patience and- accepted a colleague as despicable as himself." Aureolus was obliged to yield at discretion ; he was condemned and put to death. Claudius was resolved, so far as in him lay, to restore the empire to its ancient splendour. With the authority of a veteran com- mander he insisted on, the advantage of discipline and pointed to the consequence of laxity in the army. His teaching was not unheeded. The Grerman nations, with a fleet far superior to any they had previously possessed, anchored near the foot of Mount Athos,^ and assaulted Thessalonica.* Claudius went to its relief. The Grermans left the city and hastened to meet him in the field. They met in the neighbourhood of Naissus,' a city 1 223. ' Ul. 3 190 4 174. 5 172. THE ROMAN EMPIRE. Ill of Dardania. The barbarian host, defeated with a loss of 50,000 men, was weakened, but not crushed. The Groths fought in Moesia,^ Thrace,^ and Macedonia,^ and at length, driven into the most inaccessible parts of the mountains of Hsemus,* there found shelter, such as it was, for the time being. During a rigorous winter the troops of Claudius besieged them. Famine and pestilence had frightfully supplemented the devastation of the sword. When spring came it was but a small, though a hardy and desperate band that made its appearance in arms. Claudius succumbed to the pestilence. He died in a.d. 270. During his last illness Claudius recommended Aurelian, one of his generals, to the principal officers of state as the man most deserving of the throne. Aurelian (A.D. 270 — 275). — The death of Claudius gave fresh courage to the Goths. The Goths and the Yandals in vast numbers threatened Eome. Aurelian met them on the field. The approach of night ended a bloody and doubtful conflict. After twenty years of perpetual fighting the Goths and Romans consented to a lasting peace. The Goths engaged to supply the armies of Eome with a body of 2,000 auxiliaries — cavalry, in return for an undisturbed retreat. Aurelian withdrew the Roman forces from Dacia,' and tacitly relinquished that great province to the Goths and Vandals. In A.D. 270, Aurelian defeated the Alemanni in three great battles. They were almost exterminated. The seven hiUs of Rome had been surrounded by Servius TulKus by a wall seven miles in length. Rome had overgrown the enclosure. The suburbs were unprotected. Aurelian com- menced, and Probus finished, the erection of an outflanking wall between eleven and twelve miles in length. Between the building of the first and second of these walls, Rome for centuries had trusted, and with reason, to the valour of her legions. The Goths, the Vandals, and the Alemanni disposed of, Aurelian turned his attention to Gaul, Spain, and Britain on 1 172. 3 188. ^ 173. * 187. ^ 171. 112 OUTLINE OF EOMAN HISTORY. the one hand, Egypt, Syria, and Asia Minor on the other. Owing to the imbecility of recent emperors these Roman provinces had heen seized and long enjoyed by usurpers. Tetricus — the Gaul — the slave and sovereign of a licentious army, whom he dreaded and by whom he was despised, desired to escape unhurt from his unenviable position. He colluded with Aurelian. War was declared. Tetricus took the field against Aurelian, posted his men in the most disadvantageous manner, revealed his position to Aurelian, and, with a few chosen friends, deserted in the'begianing of the action, a.d. 271. Zenobia was the then mistress of the east. Aurelian went to contest her pretensions. She was a charming, high-spirited, and accomplished woman, fond of the chase, and no less fond of Homer and Plato. The forces of Zenobia were defeated first at Antioch^ and again at Bmesa.^ Unable to collect a third army, Zenobia retired to Palmyra,^ which she stoutly defended till famiae made her position no longer tenable, when she resolved on flight. She reached the banks of the Euphrates, sixty miles . from Palmyra, where she was overtaken by AureUan's light horse and carried back. On his way to Rome, Aurelian heard that the Palmyrans had massacred the governor and garrison he had left among them. He hastened back and slaughtered the inhabitants without distinction of age or sex. One Firmus had dared to assume the imperial purple at Alexandria. He raised an army. It was routed. He was cap- tured, tortured, and put to death. It is said that no previous triumph had excelled "in magnificence that of Aurelian on this occasion (a.u. 274). Tetricus and Zenobia were permitted to spend the remainder of their lives in affluence and repose. Not long after his triumph an insurrection broke out at Eome; its cause and object are uncertain. Aurelian lost 7,000 of his veteran soldiers ia its sup- pression. History does not say the number of thousands slain by him, but the blood of rich and poor seems to have flowed- Hke water. The most illustrious of the senate were either killed or disappeared. Aurelian disdained to hold power otherwise than by the sword. ' 250. s. 266. THE ROMAN EMPIRE. 113 While on his way to punish the Persian monarch, and when between Byzaiitium and Heraoles, Aurelian was murdered in March, a.d. 275. Tacitus, A.D. 275— 276.— The army requested the senate to nominate an emperor ; the senate declined, and requested the army to nominate one. The counter-propositions were thrice repeated and rejected. Six months after the assassination of Aurelian the senate raised the aged and virtuous Tacitus, then in his seventy-fifth year, to the imperial dignity. The army confirmed the election. Tacitus marched in person against the Alani, a Scythian^ people. They were defeated, and the pro- vince of Asia was delivered from their yoke. Exhausted by fatigues to which he was not accustomed, and mortified by the insolence of the soldiery, Tacitus, after a reign of six months and about twenty days, Expired at Tyana in Cappadocia,^ on the 12th April, a.d. 276. Florianus, A.D. 276. — Florianus, the brother of Tacitus, un- asked, assumed the purple. Probus, the general of the east, declared himself the avenger of the senate. Florianus prepared to meet Probus, but his own soldiers settled the matter by assas- sinating him after a reign of about three months. Probus, A.D. 276— 282.— Probus, a native of Illyricum,^ the man to whom Aurelian was indebted for the conquest of Egypt, was tmanimously declared em'peror by the army in the east, whereupon he immediately submitted his claims to the senate who joyfully ratified the choice on the 3rd August, a.d. 276. Incredible as it may appear, almost all of the districts crushed by Aurelian had again, and with more fury than before, risen in defiance of Roman supremacy. To meet the occasion, Probus, incapable of attending to all, selected as his lieutenants Carus, Diocletian, Maximian, Gonstantius, Galerius, and others who afterwards either ascended or supported the throne. In a short reign of about six years Probus broke the power of the wandering 1 273. "^ 234. 2 142. N. I 114 OUTLINE OF KOMAN HISTOEY. Sarmatian' tribes, attacked and subdued the Isaurians^ in their mountain fastnesses, chastised the cities of Ptolemais^ and Coptos^ that still adhered to the fortunes of Firmus in Upper Egypt, and delivered Gaul and about seventy flourishing cities from the barbarous oppression of the Germans. He compelled the Germans to restore the effects and captives they had carried away from the provinces, and concluded peace with them on the condition of their supplying the Eoman army with 16,000 recruits, — the bravest and most robust of their youth. Satur- ninus, who revolted in the east in a.d. 279, and Bobosus and Froculus, who revolted in Gaul in a.d. 280, were successively suppressed. Foreign and civil war ended, Probus returned to Eome, and commemorated his victories by a splendid triumph. As to the 16,000 German recruits, Probus dispersed them throughout the provinces in bands of from fifty to sixty among the national troops, saying that " the aid which the repubKo derived from the barbarians should be felt, but not seen." It may be asked — Was this a long or a short sighted policy ? It is a fact that the state of things for a long time previously had checked marriage and discouraged agriculture. The then gene- ration of adult Roman citizens in Italy was rapidly dwindling ; the rising population was not, or was but barely, sufficient to take their place. Probus bestowed land, cattle, instruments of husbandry, and every encouragement upon fugitive and captive barbarians, to induce them to settle on the exhausted frontiers, hoping thus to breed and educate a race of soldiers for the Eoman service. Probus did much for Egypt ; he improved the navigation of the Nile ; he erected and repaired public buildings. His mUi- tary discipline, though less cruel than that of Aurelian, was yet severe. On one of the hottest days of summer he is said to have unduly pressed on the unwholesome labour of draining the marshes of Sirmium.^ Impatient with fatigue, the soldiers threw down their tools and seized their arms. The emperor took refuge in a lofty tower : it was forced, he fell pierced by ' 197. 220. 3 239. * 253. 6 157. THE ROMAN EMPIRE, 115 many wounds. With him the authority of the senate expired, August, A.D. 282. Carus (A.D. 282—283). — Carus was elected by the' army. The senate was not consulted. Oarus simply informed the senate that he had ascended the vacant throne. He conferred on his sons, Cariaus and Numerianus, the title of Osesar. Leaving Carinus in command of the western provinces, he started with his younger son for the east, bent on the subjugation of the Persians.^ Yaranes, or Bahram, sent ambassadors to Carus to negotiate for peace. The ambassadors reached the Eoman camp at the hour of the evening meal. Having desired to be intro- duced to the emperor, they were conducted to a soldier seated on the grass with a piece of salt bacon and a few hard beans before bim as his supper ; a coarse woollen garment of purple was the only circumstance that annoimced his dignity. The conference was conducted with equal simplicity. Carus, taking off his cap, which concealed his baldness, assured the ambassadors that un- less their master acknowledged the supremacy of liome he would speedily render Persia ^ as naked of trees as his own head was destitute of hair. The ambassadors retired. It is said that they trembled. The threats of Oarus were not idle threats. He ravaged Mesopotamia," seized the cities of Seleucia and Ctesiphon, and carried his victories beyond the Tigris. In the midst of his victories he perished in a storm. It was reported that he had been killed by lightning 25th December, a.d. 283. Carinus and Numerianus (A.D. 283 — 284).— Carinus and his absent brother were at once proclaimed emperors. It was ex- pected that the sons would follow up the advantage gained by their father, but they were helpless. The legions, though strong in number and discipline, were superstitious. Death by lightning was an evil omen. It was regarded as the act of the wrathful hand of heaven. An oracle, it was remembered, had marked the river Tigris as the fatal boundary of the Eoman arms. The troops called on the youthful Numerianus to obey the will of the gods and lead them back. 1 32° N., 60° E. ^ 280. i2 116 OUTLINE OF ROMAN HISTORY. Carinus, released from Ms father's control, let loose Ms passion for vulgar pleasures and show. The oldest citizens said that the triumphal pomp of Prohus, or Aurelian, and the secular games of Philip, were surpassed in magnificence by the exhibi- tions of Carinus. It has been said of the two brothers that Carinus was not worthy to live in the most corrupt of times ; whereas Numerianus deserved to live in better times than Ms. Though physically, and by his previous training, unfit to com- mand those by whom he was surrounded, Numerianus was a gentle, affable, virtuous, and contemplative youth. The hard- ships of the Persian war and the heat of the climate had so affected his sight as to make him a close prisoner in his tent. He entrusted the administration of affairs and himself to Arrius Aper, the praetorian prsefect, who was at the same time his father-in-law. About eight months after the death of Carus the army by slow marches reached the TMacian Bosporus.^ A report was circulated through the camp that the emperor was dead. The soldiers broke into the imperial tent, and discovered the corpse of Numerianus. Aper, suspected of foul play, was seized. A general assembly of the army was appointed to be held at Chal- cidor, wMther Aper was transported in chains. A vacant tribunal was erected. The generals and tribunes formed a military council ; - they announced that their choice had fallen on Diocle- tian, commander of the domestic and body guards, as the person most capable of succeeding and revenging their beloved emperor (17th September, a.d. 294). Diocletian ascended the tribunal, raised his eyes towards the sun, made a solemn profession of Ms own innocence. Assuming the tone of sovereign and judge, he commanded Aper to be brought before Mm. When Aper reached the foot of the tribunal, Diocletian, saying, " This man is the murderer of Numerianus," drew his sword, and without giving Aper the opportunity to speak, plunged it into his breast. In the spring of a.d. 285, the forces of the east and the west met in the plains of Margus, near the Danube.^ A tribune, whose wife had been seduced by Carinus, seized the opportunity ' 203 2 125. THE ROMAN EMPIRE. 117 for revenge, stabbed Carinus, and put an end to the civil war A.D. 285. Diocletian, A.D. 284— 305.— Diocletian was one of the most remarkable men that ever lived. His parents had been slaves in the house of a Eoman senator. He was great as a warrior, greater as a statesman, and greatest as a true philosopher. In A.D. 286, he made Maximian, bom a peasant, a soldier of fortune, a man insensible to pity and fearless of consequences, his colleague and august us. _ For some reason not easy to divine, Diocletian assumed the title of Jovius, while Maximian assumed that of Herculius. Diocletian and Maximian, A.D. 286 — 305. — In the year A.n. 292, Diocletian, sensible of the necessity of maintaining large armies on the frontiers, and the danger of entrusting them to the charge of mere lieutenants, elevated,, with the approval of his colleague, Galerius (Armentarius) and Constantius (Chlorus) — the former of humble, the latter of noble birth, soldiers of dis- tinction — to the rank of Caesars; and further to cement the union, he adopted Galerius as his son-in-law ; while Maximian, in like manner, adopted Constantius: each — obliging the adopted to repudiate his then wife — bestowed his daughter in marriage on his adopted son. These four princes divided the Roman empire between them. Diocletian retained for himself Thrace, Egypt, and the rich countries of Asia. Maximian took Italy and Airica. Constan- tius had assigned to him Gaul, Spain, and Britain. Galerius- was stationed on the banks of the Danube as the safeguard of the Illyrian provinces. Each was sovereign within his own jurisdiction. All were united as to the common weal. Dio- cletian was by aU. regarded as the common parent. This division was resolved on by Diocletian as the result of what he had seen, or supposed that he had seen, during the arduous campaigns of the first few years of his reign, which, though attended with success, had satisfied him that the ever-increasing hostility to the Roman sway could no longer be resisted by any emperor seconded only by mere lieutenants. It wiU be remem- 118 OUTLINE OF ROMAN HISTORY. tered, that in the beginning of the empire the emperors derived position and power from the senate; that on the death of Pertinax the prsetorian guard claimed the right to nominate the emperor, and sold the dignity to Didius Julianus on the 28th March, a.d. 193 ; that the legions in the provinces -suhse- quently claimed that right ; and that finally, in a.d. 282, the authority of the senate expired? and the army became all- powerful. Diocletian, by instituting two Augusti and two Csesars, made ' the succession devolve on the Csesars, who were appointed by the existing Augusti, without consulting or even reference to either the senate or the army. In the year a.d. 287, Caransius, who had been entrasted by Diocletian with a Roman fleet, and stationed at Boulogne to watch and chastise the German pirates, seized the booty that he connived at the Germans taking, and appropriated it to his own use. Maximian ordered his death. Caransius, who had attached the fleet to him, sailed for Britain, and persuaded the legions there to confer on him the title of Augustus. His fleets rode the seas triumphant, ravaging' the coasts beyond the Columns of Hercules.' Diocletian and his colleague, dreading his enter- prising spirit, resigned to him the sovereignty of Britain, and reluctantly permitted him participation in the imperial honours. The adoption of two Ctesars imparted new military vigour. Constantius raised a stupendous mole across the entrance to the harbour of Boulogne. The town ultimately surrendered. A large portion of the fleet of Caransius fell into the hands of Constantius. Caransius was murdered by AUeetus, his first minister, a.d. 293. AUeetus seized the government, and held it for three years. Asclepidotus, an officer of Constantius, landed in Britain, defeated and slew Alectus, a.d. 296. Britain was restored to the imperial sway. After a siege of eight months, Diocletian took Alexandria, a.d. 297. The city was treated with the utmost severity. It was said that the Egyptians, though insensible to kindness, were extremely susceptible of fear. Few persons in Egypt obnoxious to the emperor escaped 40. THE EOMAN EMPIEE. 119 death or exile. Thousands of Alexandrians perished in a pro- misouous slaughter. In a.d. 297, Diocletian, in support of the cause of the Armenian king, went to war with the Persians. He took up his station in the city of Antioch, whence he directed the military operations, the execution of which he entrusted to Gralerius. The armies met in the plains of Meso- potamia. Two tattles were fought with douhtful issue ; in the third the Roman army was totally defeated on the same ground where Crassus and the legions had fallen in the year b.c. 53. Diocletian received G-alerius on his return with the indignation of an offended sovereign, and compelled him to follow the emperor's chariot for more than a mile on foot, thus exhibiting before the whole court the spectacle of his disgrace. A second campaign was undertaken, a.d. 298. Galerius fell upon the Persian camp during the night, and put them to flight with dreadful carnage. The Persian Narses sued for and obtained a treaty of peace, by which, inter alia, five provinces were ceded to the Romans, and peace secured in the east for forty years. 120 OUTLINE OF ROMAN HISTORY. Chapter X. THE EMPIEE— cojiiimwed. THE FOURTH CENTXTRY. i.e., A. TJ. C. 1053 till A. V. C. 1152;— A.D. 300 to A.D. 399. Emperors of Jlome. A.D. ( DIOCLETIAN, •to 305. < ( MAXIMIAN'. 305—306. CONSTANTIUS I. (Chlorus). 305—311. GAIERIUS. 306—337. CONSTANTINE I. (the Great). 306—312. MAXENTIUS. 306—310. MAXIMIAISr (returned). 306—307. SEVEEUS. 307—313. MAXIMIN. 307—323. LICINIUS. 337—340. CONSTANTINE II. 337—350. GONSTANS I. 337—361. CONSTANTIUS II. 361—363. JULIAJJ'. 363—364. JOVIAN. 364—375. VALENTINIAN (West). 364—378. VALENS (East). 367—383. GEATIAN (West). 383—388. MAXIMUS (West). 375—392. VALENTINIAN (West). 392—395. THEODOSIUS I. (West and East). THE ROMAN EMPIRE. 121 DIVISION OF THE EMPIRE, West. East. 395—423. HONOEIUS. 395—408. ABCADIUS. The Orators, Historians, Philosophers, Poets, &c,, of the Period. EUTROPIUS (PLAVIUS), Hstorian, temp. Constantine and Julian. AMMIANTJS (MARCELLINUS), historian, born a.d. [P], died A.D. 390. AUSONIUS (DEOroS MAaNUS), poet of this period. LAMPEIDUS (.ffiLIUS), historian, temp. Diocletian and Constantinb Diocletian, continued. — In a.d. 303, Diocletian entered on the twentieth year of his reign, and, as the empire was then entirely relieved from the tyrants and barbarians that had troubled it, he resolTed on a Eoman triumph. Maximian was Ms only companion in the glory of that day. Africa and Britain, the Ehine, the Danube, and the Nile fiimished their respectire trophies, but the Persian victory and conquest was the most important feature. This triumph is remarkable as being the last ever beheld in Eome. Diocletian entertained a deeply rooted aversion to, and contempt for, Rome and its senate, possibly the not unnatural consequence of early associations. When he seized the imperial sway, he simply informed the senate of the fact, disdaining to ask for their recognition. When he divided the empire and took the East as his portion, he made Nicomedia ^ his capital. It is doubtful whether Diocletian had ever visited Home from the date of his elevation till he went there to celebrate his triumph, and then he only stayed there for about two months. -He, his colleague, and successors enacted what laws they thought fit, regardless of the senate. It was his intention to make Nicomedia ^ rival Eome. Maximian made Milan ^ his capital of the West, and concerning it he had a like ambition. Both spent their leisure and resources in the em- bellishment of these new capitals. No emperor, prior to Diocletian, had been distinguished in his dress from other citizens save in the use of the purple. Diocletian, conscious of 1 203. ' 111. 122 OUTLINE OF ROMAN HISTOKY. the effect on the eastern mind of personal splendour, adopted the stately magnificence of the court of Persia. He did not hesitate to adopt the ornament the most detested by the Eomans, the diadem. His rohes were of silk and gold. New forms and ceremonies made access to the sacred persons of the two Augusti daily more difficult. Prostration and adoration after the manner of the East were best suited to the. easterns, and were accordingly adopted. No stronger proof ' of his unceasing actiyity in matters legal could be furnished than the fact that his name appears no fewer than 1,200 times in the code of Justinian. He definitively and* generally substituted the extraorcUnarium judicium for the formvla system. He created, or, perhaps more correctly, greatly increased, a class of inferior judges styled ju'dicespedaiwi. Ortolan says : — " Just as the formula system of procedure was gradually substituted for the actiones hgis, so in its ttirn was the formula gradually superseded and finally displaced by the extraordiiiariajudicia, or extraordinary procedure. " The principle of the cognitio extraordinaria consisted in the fact that the magistrate heard the case and decided it himself. This principle was already recognised in the system of the actiones legis as well as in that of the formulcB. In those two systems of the Eoman procedure, however, and especially in that of the formulw, it only existed as an exception. The procedure hj formula, which involved the separation of the Jus and the Judicium, the guarantee of the Juge-JurSs chosen or accepted by^ the parties, and the technical regulation of that or those judges' commission, was the established form of procedure. The magistrate himself only heard and decided the case as an extraordinary measure {extra ordinem) in cases where his Juris dictio could end the matter : when he wanted to make use of his imperium : when there was no given action according to civil law nor according to the edict, and when extraordinary recourse was had to the power itself of the magistrate {cognitio extraordinaria persecutio, and not actio). But under the imperial government, when the arbitrary power of the emperor was every day increasing, when his will and his decisions had acquired superior authority, when the number of suits called or brought before him THE ROMAN EMPIRE. 123 multiplied, when his oiBoers, his prcetorian prsefects, and his lieutenants participated, through delegation, in the powers of their master, the practice of using the cognitiones extraordimrice became very much more frequent. ... It was in this state of things that .Diocletian, through a constitution that we find inserted in the code of Justinian (a.d. 294), ordered the presi- dents of the provinces to themselves hear and decide all cases, even those which it was formerly the practice to send before judges. This rule, which seems to apply — in the terms of the constitution — only to the provinces, was made general for the whole empire. Diocletian, it is true, reserved to the presidents the right of giving to the parties subordinate judges, when their public occupations, or the multiplicity of the suits, prevented them from hearing them themselves ; but in such eases the suits were no longer sent before the judges in accordance with the formulary system : the distinction between the/ws and judicium, the regulation of the judges' commission by the terms of the formula, was gone : the whole case was transmitted bodily. The formulary procedure had completely fallen through, and what was formerly the exception had become the rule; all procedure was extra ordinem. The jus and the judicium, the office of the magistrate and that of the judge, were confounded, and the name judex, judices majores, is now applied to the magistrate. " From that time, the word actio a second time completely changed its meaning ; and the exceptiones, and the interdicts, institutions of the formulary system, lost their true character. . ." ^ During the first nineteen years of the reign of Diocletian the Christians continued to enjoy the free exercise of their religion without molestation. But notwithstanding this seeming secu- rity, indications were not wanting of coming trouble. The poUcy of Diocletian and the humanity of Constantius, which inclined them to preserve inviolate the maxims of toleration, succumbed to the aversion of Maximian and Gralerius for the name and religion of the Christians. Diocletian, long impor- tuned by Gralerius, issued an edict for the general persecution of the Christians on the 24th February, a.d. 303. Some account ' Pritoliard and Nasinith's translation, pp. 361 et seq. 124 OUTMKE OF KOMAN HISTORY. of the horrors of that persecution will he found in Gihbon's "History of the Decline and Fall of the Eoman Empire" (vol. 2, pp. 456 et'seq.). No sooner had Diocletian published his edicts against the Christians — for the consequences of the first led to others— than, as if desirous of committing to other hands the work of persecution, he divested himself of the imperial purple. Diocletian, however, had for some time meditated abdicating. He discussed and at length agreed with his colleague, that both should do so on the same day. On the 1st May, a.d. 305, Diocletian ascended a lofty throne, erected for the occasion in a plain about three miles from Nicomedia,^ and in a speech, full of reason and dignity, declared his intention both to the people and to the soldiers there assembled. He then divested himself of his imperial robes, and in a covered chariot drove to his favourite retirement in his native country of Dalmatia. Maximian on the same day resigned his imperial dignity at Milan.'^ Maximian grew weary of private life, and sent soliciting Diocletian to resume the reins of government. Diocletian, with a smUe of pity, calmly said : " If I could show Maximian tke cabbages I have planted with my own hand at Salona,' I should no longer be urged to relinquish the enjoyment of iappiness for the pursuit of power." Yopiscus tells us that Diocletian, in conversation with a friend, said : " How often is it the interest of four or five ministers to combine together to deceive their sovereign ! secluded from maniind by his exalted dignity, the truth is concealed from his knowledge : he can see only with their eyes, he hears nothing but their representations. He confers the most important offices upon vice and weakness, and disgraces the most virtuous and deserving among his subjects. By such infamous arts, the best and wisest princes are sold to the venal corruption of their courtiers." Diocletian lived for eleven years in the enjoyment of private life, and died a.d. 313. Constantius I., A.D. 305—306; Galerius, A.D. 305— 311.— The abdication of Diocletian and Maximian was followed by eighteen ' 203. 2 111. 3 142.^ THE ROMAN EMPIRE. 125 years of discord and confusion. Five civil wars distract atten- tion from aU else. Daza — afterwards called Maxitnin — and Severus were appointed Osesars. Constantius and Galerius re- tained their former provinces, Egypt and Syria were allotted to Daza, Italy and Africa to Severus. The British expedition, in which Constantius was accompanied hy his son Constantine, and in which he had an easy victory over the Caledonians, was the last exploit of Constantius, who died in the imperial palace at York, July 25, a.d. 306. Galerius had hoped that on the death of Constantius he would hecome sole master of the Eoman world, but it was otherwise. The troops in Britain, on the death of Constantius, saluted Constantine emperor and Augustus. Galerius dissembled his rage, conferred on Constantine the title of Csesar, and at the same time conferred the title of Augustus on Severus. Gralerius introduced into Italy the same system of taxation that prevailed in the provinces. The Romans, imac- customed to taxation, resented the innovation. The senate, chafed hy the treatment they had received from their absent emperors, fanned the flame of discontent, and excited the feeble remnant of the praetorian guards to revolt. Maxentius, the vicious, and at the same time incapable, son of Maximian, was proclaimed emperor at Eome. Maxentius invited his father to re-assume the purple. He did so, a.d. 309. Severus hastened to Rome to chastise the (to him) usurpers. The gates were closed against him, his own soldiers deserted him, he capitulated, and not long after was compelled to put an end to his own life, February, a.d. 307. A common interest against Galerius united two dissinulars — Constantine and Maxentius. Maximian married his daughter Fausta to Constantine, upon whom he, at the same time, conferred the dignity of Augustus. Appearances led the Romans to conclude that Constantine had adopted their cause. Gralerius appeared in arms in Italy, resolved to avenge the death, of Severus. He found the gates of every town shut against him, and, though he marched to within sixty miles of Rome, he deemed it prudent to retreat, leaving Maximian and Maxentius in the undisputed possession of Italy. In November, a.d. 307, Galerius raised Licinius to the rank of Augustus. Maximin forced -from Galerius the same honour 126 OUTLINE OF ROMAN HISTORY. for Limself . For tlie first and last time the Eoman world was administered hj six emperors, a.d. 308. Maxentins resented the attempted control of his father. The praetorian guards gave to the dispute between father and son their careful consideration. The cause was solemnly pleaded before them. The life of Maximian was spared, but he was 'required to leave Italy. He went into Illyricum.^ Gralerius obliged him to leave that place. He took refuge in the court of his son-in-law, Oonstantine. When, shortly after, Oonstantine was compelled to go to the Rhine, Maximian seized the vacant throne. Oonstantine re- turned, Maximian fled, but was captured and surrendered to Oonstantine, who compelled him to take his own life, February, A.D. 310. Galerius died after a lingering and painful illness, A.D. 311. Maximin and.Licinius divided his dominions be- tween them. Licinius concerted with Oonstantine. Maximin formed a secret alliance with Maxentins. Maxentius filled Eome and Italy with troops, connived at their tumults, and sufPered the plunder and even the massacre of the defenceless people. He publicly insulted the name of Oonstantine, and ordered statutes erected to him to be thrown down. At the head of 40,000 men Oonstantine marched into Italy. The last of three battles between them was fought at Saxa Eubia, about nine miles from Eome. Maxentius was defeated and driven into the Tiber, where he was drowned, October 28thj a.d. 312. Oon- stantine abolished the praetorian guard. This was the final blow to the dignity of the Eoman senate. The city was left defenceless. In A.D. 313, Maximin marched against Licinius; the two armies met near Heraclea;^ Maximin was defeated and fled. Three or four months later he died at Tarsus. The immediate cause of his death is not known. In A.D. 314, Oonstantine and Licinius turned their victorious arms against each other. Licinius, who was defeated in two battles, sued for peace; Oonstantine deemed it prudent to grant it; Licinius was left in possession of Thrace, Asia Minor, Syria, and Egypt. Oonstantine annexed Pahnonia,' Dalmatia,* Dacia,* 1 142. 2 Hi. 3 i4i_ 4 142. 5 171, THK ROMAN EMPIRE. 127 Macedonia,! ^nd Greece.^ The peace endured for about eight years, during which period Oonstantine was largely occupied with the Groths, who ultimately contracted to supply his armies with 40,000 men, whenever required to do so. Oonstantine resolved on the ruin of Licinius. Their first battle was fought near Adrianople,^ July 3rd, 323. Each brought more than 100,000 men into the field. Licinius was defeated. He was again defeated at Chrysopolis,' he surrendered and laid down the purple at the feet of his conqueror, who promised him life. He was sent to Thessalonica,'* where, not long after, he was executed, a.d. 324. Oonstantine reigned alone. Oonstantine Sole Emperor, A.D. 323—337. — Of remarkable historical characters, Oonstantine is perhaps the most remarkable. We have already traced his career up to the point where he com- menced to reign alone. We have now to regard him as the founder of a new capital, the author of the reorganization of the administration of the Roman empire, of a new nobility, of a new state religion, and of important changes in the private law. The New Capital. — We have already seen that for some time past Eome had been distasteful to the emperors. Diocletian had established his court at Nicomedia,^ his colleague his at Mil'an.^ Oonstantine, bom in the neighbourhood of the Danube, and whose travels had made him familiar with much of the territory of the then Roman empire, selected Byzantium^ as the site of the new imperial capital. The prospect of beauty, of safety, and of wealth, imited in a single spot was sufficient to justify the choice. With his own hand, he marked with a lance, in imita- tion possibly of Eomulus, the boundary of the projected new city. It being suggested to him at a particular stage of his pro- gress that he had already exceeded the most ample measure of a great city, he said, " I shall still advance tiH He, the invisible guide who marches before me, thinks proper to stop." All that money and art could do was done to render the new capital attrac- 1 158. 2 175. 3 188. ' 174. = 203. « HI. 128 OUTLINE OF ROMAN HISTOKY. tive. Thither the nohility, the dignitaries, and the wealthy flocked. The city was dedicated on the 11th May, a.d. 330. Reorganization of the Administration. — Constantiae divided the empire into four great praetorian preefectorates — ^the East, Illyria, Italy, and Gaul. He di-jided each prsefeotorate into dioceses, each diocese iato provinces. At the head of each prse- fectorate he placed a prcetorian prcefect, at that of each diocese a vicar, at that of each proviace a rector provincice. Rank, — He selected as his intimate counsellors and private advisers a few of the most emiuent of those who had filled high magistracies, and conferred upon them for life the title of patricii. They had no jurisdiction or imperium, hut enjoyed the highest rank {qui cceteris omnibus anteponitur) . He increased the numher of the council styled comites consis- toriani, and, in addition to the council, established a senate like that at Eome. His high chancellor was styled qu'csstor sacri palatii. The princes of the imperial family were styled nobilis- simi. The praetorian prsefects, the prsefects of the city, the quaestors of the sacred palace, and certain classes of comites, were styled illustres. After these followed the spectahiles, the Claris- simi, the perfectissimi, and, lastly, as men of rank, the egregii. Christianity the State Religion. — Though not himself baptized, Constantino declared Christianity to be the religion of the State. He professed himself to belong to, and to have adopted, the new faith. Most of his nobles, and many of his subjects, followed his example. The whole system of the/ws sacrum, including the jus ptiolicum connected with it, fell to pieces. The pontiffis, the flamens, the vestals, and others disappeared from the temple and the court. Episcopi (bishops) and others took their places. We are told that Saint Paul had advised the Christians to keep away from the civil tribunals, and to settle their differ- ences like brethren through, the ministry of the elders of the church. Oonstantine made it a legislative institution, and in- vested the bishops with certain jurisdiction. To them, as to the consuls, the pro-consuls, and the preetors, was given the power THE ROMAN EMPIUE. 129 of enfranoliismg slaves. They were permitted to act for certain magistrates duxing their absence, and thus, pressing nearer to the throne, they not infrequently advised the emperor in the affairs of state. Changes in the Private Law.— Constantine reduced the power of the father to dispose, hy sale, of his child, to the period of the earliest infancy, and then only permitted its exercise in the case of extreme poverty. He removed the testamentary incapacity of the ccelibes and the orli, and, by allowing parents to succeed ah intestato to their children, he abolished a portion of the Jus liberonim. He origiuated peciilium quasi castrans {castrense), ».e.,.he declared aU property acquired by a son in the service of the court to be free from the father's control. He originated peciiJmm adventitlum, i.e., he declared all property derived by a son from his mother to belong to the son absolutely, subject only to the life usufruct of the father. legal Text Books — Authorities and Opinions. — We have seen that Pomponius, Scsevola, Grains, Papinian, TJlpian, Paul, Marcian, and Modestinus, the most illustrious jurists ever pro- duced by the Eoman nation, flourished between the time of Hadrian and Alexander Severus. Not satisfied with writing independent treatises of their own, however, TJlpian, Paul, and Marcian took upon themselves to write commentaries on the works of Papinian. It is, perhaps, unnecessary to remind the reader that long before the reign of Constantine the Romans had ceased to produce jurists in the proper sense of the -term. The judges and advocates of his time perplexed themselves and others with extracts and quotations ; they avoided dealing with principles, the delight of the Romati jurists. To meet the then deplorable state of the legal profession, and to put a stop to wrangling about trifles {perpetwas prudentium contentiones eruerc cupientes), Constantine prohibited the use of the commentaries on Papinian of TJlpian and Paul, a.d. 321. When those by Marcian were treated in like manner is not known. In a.d. 327 the emperor, however, declared that the independent works of N. K 130 OUTLINE OF ROMAN HISTOEY. Paul, and particularly his sententice, were worthy of being confirmed and quoted as authority before the judge. Oonstantine was twice married. By Minervina, his first wife, he had one son, Orispus. By Fausta, his second wife, he had three daughters, and three sons, Oonstantine, Oonstantius, and Oonstans. Orispus deserved, the esteem, and he engaged the affection of the court, the army, and the people. It is said that Oonstantine became jealous of his son's popularity, and kept him practically a prisoner at his court. Fausta accused the youthful Orispus of an attempt on her chastity : he was sentenced to death by his father. His grandmother, Helena, revenged the youth's death. Fausta was accused of adultery with a slave : she was condemned, and suffocated. Oonstantine died near Nicomedia,i where he had gone for the benefit of his health, in his sixty-fourth year, and in the thirtieth year of his reign, 22nd May, a.d. 337. Oonstantine II., A.D. 337—340 ; Constans I., A.D. 337—350; Oonstantius II., A.D. 337— 361.— From a.d. 337 to 361 the Eoman Empire was in the hands, first of the three sons of Oonstantine, then of two, and during the last eleven years Oonstantius reigned alone. Oonstantine had raised each of his sons, and his nephew Dahnatius, to the dignity of Osesar, and had conferred on his nephew Hannibalianus the new title of noUUssimus, reserving to himself the title of Augustus. To each of these princes he had entrusted the government of certain provinces. On the death of Oonstantine, the troops, no doubt thereunto duly stimulated, declared that none but the sons of Oonstantine should reign. Upon the arrival of Oonstantius in the capital, he sanctioned a promiscuous massacre ; and among many others of high birth, Dahnatius and Hannibalianus fell victims. Oon- stantine, then twenty-one years of age, took the new capital and its dependencies ; Oonstans, then twenty, took Italy, Africa, and the western Illyricum; Oonstantius, then seventeen, took Thrace and the countries of the East. Oonstantius had to sustain the weight of the Persian war 1203. THE ROMAN EMPIRE. 131 against Sapor, who was bent on' reeovering the five provinces that had been torn from his ancestor. In nine bloody battles on the field,' victory attended the Persians ; but so long as the fortified towns of Mesopotamia,^ and particularly Nisibis,i remained in the hands of the Eomans, Sapor's dream could not be realized. Each of his efforts to reduce those strongholds failed, which, coupled with the invasion of the Massagetse on his eastern provinces, induced him to conclude a truce with Oonstantius, to whom it was not unwelcome, he having then lost his two brothers and become involved in a civil contest in the west. While Oonstantius was engaged as abeady stated, Oonstan- tine, not long after his accession, complained that he had not his full share of the spoils of their murdered kinsman. He invaded the territory of Constans, but was betrayed into an ambush, surrounded, and slain, a.d. 340.- Suppression of the Formulae — De Formulis Sublatis, A,D. 342. — By this constitution of the Emperor Oonstantius, the then existing remnants of the formula system were abolished. Its technicalities, troublesome to the ignorant, had long been dis- tasteful to them. Legal learning was now rendered unneces- sary. The use of any language was permitted that was deemed sufficient to convey and express the ideas and intentions of the parties. Eight years later, Oonsta;ns was slain at the instance of Magnentius, an ambitious soldier, who had induced the troops to salute him Augustus, a.d. 350. Oonstantius hastened to Europe. He met Magnentius near Mursa,^ or Eszek. 54,000 fell in the battle. Magnentius was defeated, and fled on the 28th September, a.d. 351. The assumptions of Yetranio and Nepotian are mentioned merely that they may be passed over. The Eoman empire was once more in the hands of one — ^that one a man destitute of all per- gonal merit, the mere slave of his eimuchs, who appealed alter- nately to his fears, his indolence, and his vanity. 1 265. ^ 141. k2 132 OUTLINE OF ROMAN HISTORY. Constantine had left two nephews, Gallus and Julian. Thougli carefuUy educated, they were nothing more nor less than state prisoners in the castle of Macellum. Eestraint developed in GaUus the worst features of his nature. Julian, similarly situ- ated, found solace in literature, and conceived a passion for Greece and the Greeks. In a.d. 351 Gallus was made Caesar. He was married to Constantiaa, one of those infernal furies in human form who gloat over mortal sufferings. He settled in Antioch,^ where with delegated authority he administered the five great dioceses of the eastern prsefecture. Suffice it to say that he and his wife so ruled that Constantius or his eunuchs decoyed him to Petavia, in Pannonia,^ made him captive, went through the form of an investigation into his government, and beheaded Mm in prison like a common malefactor, in December, A.D. 354. Julian, the sole survivor of the numerous posterity of Con- stantius Chlorus, had, through the influence of the empress Eusebia, been suffered to take honourable exile at Athens.' He had been there, however, scarcely sis months when Constantius, oppressed with the burden of sole rule, and troubled both in the west and in the east, summoned him to MUan,* where he was declared Csesar on the 6th November, a.d. 355, and given jurisdiction over the countries beyond the Alps. Though young and inexperienced, the philosophy of Plato had animated him with the love of virtue, the desire of fame, and the contempt of death. SaUust, an officer of rank and experience, soon con- ceived for him a siticere attachment, and aided him in his study of the arts of war and govenmient. In the course of four campaigns (a.d. 356 — 359) he not only drove the Franks and the Alemanni out of Gaul, but made three expeditions beyond the Rhine, and carried the terror of the Roman arms into the very heart of Germany. He gave to Gaul a new .constitution. He settled the finances, reduced the. taxes, personally adminis- tered justice in important cases, and laid the foundation of various cities and castles. Constantius and his entourage, the only persons in the Roman empire who were not proud of the ' 250. 2 141. 3 175. i 111. THE EOMAN EMPIllE. 133 youthful hero and delighted -with his success, resolved to undo him. Constantius sent positive orders to Julian to despatch four entire legions and 300 of the bravest youths of each of his remaining legions to aid him — Constantius— in his Persian war. Julian issued the necessary orders. His legions refused obedi- ence. They encompassed the palace and proclaimed Julian Augustus, telling him that if he wished to live he must consent to reign. He reluctantly consented, and wrote to Constantius narrating what had taken place, and requesting him to ratify the appointment, at the same time expressing his and his legions' willingness to content themselves with the Grallio provinces. Constantius rejected the proposal with scorn. Julian resolved to try the fortune of civil war. His legions, in three divisions and by different routes, started for Sirmium,i which he reached in an incredibly short space of time. Civil war was averted by the death of Constantius, who succumbed to a fever on the 3rd November, a.d. 361. Julian, A.D. 361 — 363. — Julian, who reigned for a period of about one year and eight months, has been branded by some Christian writers with the epithet " The Apostate." It is true that lie had been brought up ia the Christian religion ; but it is no less true that he and his brother G-aUus had been forced to enter the Christian priesthood, and had been appointed readers in their church, for the sole purpose of excluding them from ihe throne. There is no evidence that Julian ever otherwise embraced Christianity. There is strong evidence that he was always attached to the old Eoman faith. Personal safety seems to have prevented his publicly avowing his disbelief in the new religion prior to his being made emperor. Prom the moment that he declared himself he encouraged the revival of the old faith ; and though he decreed toleration to the believers in the new, the professed Christians were carefully excluded from places of trust and profit. That he was no ordinary man is beyond dispute. He began his reign by putting a stop to many abuses. He substituted for the splendour and luxury of his imperial 1 141. 134 OUTLINE OF ROMAN HISTORY. predecessors the habits of a frugal citizen, and thereby was enabled to reduce the taxes by one-fifth. He devoted the whole of his time and energies to public duties, private study, and de- votion. He was a philosopher and a writer. The two schemes the most dear to his heart were the restoration of the ancient faith and the long-cherished Persian conq^uest. His campaign against the Persians, though well designed and at first promisiug, proved a failure. He was misled; his provisions faUed him; he was obliged to retreat. The Persians followed. By his personal valour they were driven off, but, fleeing, discharged a parting volley of arrows at the Eomans. Julian received one in his side. His dying moments were not unlike those of Socrates. He reproved the immoderate grief of some of those who sur- rounded him, and bade them not to disgrace by unmanly tears the fate of a prince who, in a few moments, would be united with heaven and with the stars. Jovian. — Jovian reigned from the 28th June, 363, till the 17th February, 364 a.d. Being a professed Christian, he re- stored that religion to state favour. The venerable Athanasius emerged from his seclusion, and resumed the ecclesiastical government of Alexandria^ at the age of seventy. Jovian, however, published an. edict of toleration, giving to his subjects the right to exercise with freedom and safety the ceremonies of the ancient worship. He, at the same time, declared it to be his intention to suppress the rites of magic, which he denounced as sacrilegious. One night he supped heartily, and on the fol- lowing morning was found dead in his bed. Valentinian I. and Valens. — The crown was for a second time offered to the venerable prcefect Sallust, and was a second time refused by him. With his hearty approval, it was conferred on Valentinian, the son of Count Gratian, a native of Cibalis in Pannonia.^ Yalentiaian, who had greatly distinguished himself in the army, was a warm supporter of the Christian religion, in which he had been educated. He was proclaimed emperor on ' 222. 2 141, THE KOMAN EMPIRE. 135 the 26tli February, a.d. 364; and thirty days after, he bestowed the title of Augustus on his brother Valens. Shortly after, these two brothers solemnly divided the Eoman empire between them. Valentinian reserved to himself Illyricum, Italy, and Gaul, from the extremity of Qreece to the Caledonian ramparts, and from the ramparts of Caledonia to the foot of Mount Atlas.^ The rest he assigned to his brother Yalens. Though it was not tiU a.d. 395 that the empire was finally severed, it is advisable, as far as possible, to keep the histories of the west and east henceforth distinct. In the West. — ^Valentinian condemned the exposure of new- born infants, and appointed fourteen skilled physicians, one in 6ach of the fourteen quarters of Eome. He caused rhetoric and grammar to be taught in the metropolis of every province. The finances were carefully administered, and frugality marked the palace. Under Julian, he had been zealous in the cause of Christianity. During his own reign, the believers in the ancient faith, as also the Jews and aU the various sects of Christians, were protected from arbitrary power and popular insult. But he was hasty in the extreme, and was cursed with an ungovern- able temper. " Strike off his head," " Bum him alive," "Let him be beaten to death," were expressions not infrequently used by him on the slightest provocation. They were orders duly executed. In a.d. 365, and again in a.d. 366, the Alemanni ^ crossed the Ehine, laid waste the villages of the Gauls, and, with their spoils, returned to their German forests. When they renewed their incursion, a.d. 368, they were defeated by Yalen- tinian with great slaughter. By subsequently fomenting their intestine disputes, in imitation of Diocletian, Valentinian for a time freed the empire from further molestation. In a.d. 368, Theodosius, a distinguished Eoman general, drove back the Picts and Scots, who had overrun Britain ; and in a.d. 374, he quelled the insurrection of Mauritania^ and Numidia.* In A.D. 374, the Quadi,* enraged at the treacherous murder , of their >uig by one of the Eoman governors, invaded the 1 12. 2 124. = 41. * 101. 136 OUTLINE OF ROMAN HISTORY. province of Pannonia, > and laid it waste -with fire and sword. In A.D. 375, Valentinian, at the head of a large force, carried the extreme devastation and promiscuous massacre of savage warfare into the midst of the unhappy Quadi, without, it is said, the loss of a single man on his side. To avert the completion of their destruction ia the following year, as threatened by Valen- tinian, their ambassadors prostrated themselves before the em- peror. Incapable of govemiag his passion, Valentinian reviled, in the most intemperate language, their baseness, their ingrati- tude, and their insolence. Such was the violence of his fury, that he burst a large blood-vessel, and fell speechless into the arms of his attendants, on the I7th November, a.d. 375. In the East. — The first difficulty of Valens was the insur- rection, not without some justification, of Procopius, a relative of Julian. Procopius was captured and executed in May, A.D. 366, when 30,000 Groths had crossed the Danube on their way to help him. In a.d. 370, Valens concluded a treaty with the Q-oths. In the west the Arians were not numerous. In the east, the two Christian factions — ^the Arians and the Trinitarians— were more evenly balanced. Athanasius still reigned at Alexandria. The ecclesiastical thrones of Constantinople and Antioch were occupied by Arian bishops. Every episcopal vacancy was the occasion of a popular tumult. The death of Athanasius, on the 2nd May, a.d. 373, was followed by religious persecution at Alexandria. Christians sought the blood of Christians. The fall of the Eoman empire has been dated from the reign of Valens. The nomadic Scythians^ — Tartars^had long since driven the Huns ' southward. The Huns, in their turn, descended on the Goths. The Visigoths implored Valens to let them settle on the south bank of the Danube, and cultivate the waste lands of Thrace.* He complied, on condition of their delivering up their arms, and suffering their children to be dispersed through the provinces of Asia. The lust or avarice of the imperial ' HI. 2 273. 3 9C, 111, 126. 1 188. THE ROMAN EMPIRE. 137 officers induced them to accept the price offered by the Yisi- _ goths for permission to retain their weapons, their ensigns of honour, and pledges of safety. It is said that 100,000 armed fightiag men were allowed to spread themselves over the plains and hiUs of Lower Mcesia* in a.d. 376. The imperial officials, contrary to their instructions, imposed on the new comers and drove them to desperation. Starvation was in their midst, abundance within their reach, weapons were in their hands. They advanced against Marcianopolis,^ defeated Lupiciuus at the head of a Roman army, and laid waste Thrace' with fire and sword. Valens, at the head of a large axmy, came up with them near Adrianople.' They had pre- viously engaged his generals. They were then joined by Huns and Alani. The Roman cavalry fled ; the infantry, abandoned, were surrounded and cut to pieces. Valens, wounded, was con- veyed to a cottage. The cottage was fired ; Valens perished in the flames on the 9th August, a.d. 378. In the West— Gratian, A.D. 367; Valentinian II., A.D. 375.— Gratian, who had received the title of Augustus during the life of his father Valentinian, was seventeen years of age at the date of his father's death. Valentinian II., the son of Valentinian by his second wife, Justina, was four years of age. The infant was proclaimed emperor by the troops. Gratian cheerfully accepted the choice of the army, and said that he should always regard the son of Justina as a brother and not as a rival. He advised Justina to settle with her son at MUan, and himself assumed the more arduous command of the countries beyond the Alps. He was far advanced on his march towards the plains of Adrianople' when news reached him of the death of Valens. Too late to assist, and too weak to revenge, his wisdom suggested the necessity of appointing a successor to Valens able to cope with the difficulties of the situation. He sug- gested Theodosius, who was sent for to Sirmium,* and there, amidst the general acclamation, was compelled to accept the title of Augustus on the 19th January, a.d. 379. The province 1 172. 3 187. ^ 188. ■' 157. 138 OUTLINE OF KOMAN HISTOKY. over which Valens had reigned was entrusted to Theodosius. As willingly as Gratian had accepted the baby Valentinian as his colleague, so willingly did he abandon the reins of govern- ment to those about him who desired to hold them. His heart was in the hunting field. So enraptured did he become with the skill in the chase of a body of the Alani, whom he received into the military and domestic service of the palace, that he did not hesitate, to the great disgust of the Eomans, to show himself in the dress and with the arms of a Scythian warrior. The legions of Britain compelled Maximus to assume the imperial title, a.d. 383. He invaded Graul with a powerful fleet and army. The soldiers of Ghratian received him with joyful acclamations. Gratian fled, was captured and assassinated, a.d. 383. In the West — Maximus, A.D. 383 — 388. — Immediately on the death of Gratian, Maximus sent his ambassador to Theodosius with the alternative of peace or war. Eightly or wrongly, Theodosius chose the former, and entered into a treaty with Maximus, by which the countries beyond the Alps were to belong to him. Italy, Africa, and "Western Illyricum were reserved to Valentinian II. It was not long, however, before Maximus aspired to the conquest of Italy. He was almost under the walls of Milan ^ when Justiaa first heard of his designs. Flight being her only hope, she, the young emperor, and his lovely sister GaUa made their escape to Thessalonica.^ Their flight left Maximus, for the moment, master of the whole of the western empire, a.d. 387. Theodosius, for a second time, wavered between war and peace with his now undoubted rival. He referred the question to his council. He listened to the soft entreaties of Galla on the behalf of her brother, and, touched by her charms, took her to wife. He reflected on the fact that war would, at the same time, occupy his newly acquired legions abroad, and somewhat thin their numbers. "War was declared. One battle on the banks of the Save^ almost annihilated the army of Maximus. He fled, was captured and beheaded, a.d. 388. ' 111. ' 173. 3 141. THE ROMAN EMPIRE. 139 In. the East^Theodosius I., A.D. 379— 395.— On the 19th January, a.d. 379, Theodosius, the son of the celebrated Eoman general who, a few years before, had been executed for no cause other than jealousy of his fame, assumed, at the instance of Gxatian, the government of Thrace, Asia, and Egypt ; but, as he was specially entrusted with the conduct of the Gothic war, the Ulyrian prsefecture was dismembered, and the two great dioceses of Dacia^ and Macedonia^ were added to the dominion of the eastern empire. Theodosius fixed his headquarters at Thessalonica,^ whence he could watch the irregular movements of the invaders, and direct the operations of his lieutenants from the gates of Constantinople* to the shores of the Adriatic' Little by little he restored discipline and confidence to the Eoman troops. Sallies, rarely hazarded without almost certainty of success, gradually engendered the belief that the apparently invincible foe might be overcome. At this juncture, fortunately for the Eomans, Fritigem, the leader of the barbarians, whose genius had kept them together, died. Intestine dissensions induced tribe after tribe to secure treaties with the Eomans. The final capitulation of the Goths, who did not depart, took place on the 3rd October, a.d. 382. In A.D. 386, the Gxuthungi, or Ostrogoths, who had departed in A.D. 382, returned in increased numbers to the banks of the Lower Danube. They were defeated. The survivors formed a treaty with the emperor, who fixed their settlements in Phrygia^ and Lydia.' Though the royal dignity was abolished among them, their hereditary chiefs were permitted to command their followers in peace and war. Their generals, however, were subject to removal at the pleasure of the emperor. An army of 40,000 Goths was maintained for the perpetual service of the empire of the east. They assumed the title of Fcederati, and were distinguished by their gold collars, liberal pay, and licen- tious privileges. The natural effect of this more than doubtful expedient on the part of Theodosius was to extinguish in the Eomans the last spark of military ardour. In A.D. 380, Theodosius was baptized by the Trinitarian bishop > 171. ^ 173. ' 174. ^ 203. ' 143. « 219 ' 204, 140 OUTLINE OF ROMAN HISTORY. Acholius of Thessalonica, shortly after which he dictated a solemn edict which proclaimed the Athanasian doctrine of the Trinity, and branded aU who woidd not accept it heretics. He declared it to be his intention to expel from all the churches of his dominions the bishops and their clergy who should obstinately refuse to belieye the doctrine of the council at Nice {Nicma) } -In May, A.D. 381, he convened at Constantinople a synod of 150 bishops. That coimcil completed the theological system which had been established in the council of Nice, and declared, by a unanimous sentence, the equal deity of the Holy Grhost. In the course of fifteen years Theodosius promulgated as many edicts against those who rejected the doctrine of the Trinity. In A.D. 388, Theodosius, in aid of Justina and Valentinian II., as already stated, fought and conquered Maximus. In A.D. 390, some of the inhabitants of Thessalonica murdered Botheric, the general in charge of the garrison, together with some of his principal officers, for imprisoning one of the favourite charioteers, and refusing to allow him to take part in the festival on the day of the public games. Instead of seeking out, trying, and punishing the malefactors, Theodosius resolved to wreak his vengeance on the entire community. He entrusted the work to his barbarians. The people of Thessalonica were invited in the name of their sovereign to the games of the circus. Thousands flocked to the spectacle. The signal was given. The soldiers, who had been kept in ambush, rushed on the defenceless crowd. Natives, strangers, yoimg and old, guilty and innocent, were slaughtered. Some say that 7,000, others that 15,000 perished. We are told that shortly after, when the emperor proceeded in his accustomed manner to perform his devotions in the great church at Milan,i he was stopped at the porch by archbishop Ambrose, who declared that private contrition was not sufficient to atone for a j)ublic fault, or to appease offended Deity, where- upon Theodosius replied, that if he had contracted the guilt of homicide, David, the man after Grod's own heart, had been guilty, not only of murder, but of adultery ; to which Ambrose replied, "You have imitated David in his crime, imitate his > 111. THE ROMAN EMPIRE. 141 repentance." It is further said that, stripped of the ensigns of royalty, and in the midst of the church of Milan, the emperor humbly solicited, with sighs and tears, the pardon of his sins ; and that after a delay of ahout eight months he was restored to the communion of the faithful. From A.D. 388 till a.d. 391 Theodosius resided in Italy. When he departed, he left Valentinian in possession, not merely of Italy, but of the domiaions beyond the Alps. Theodosius, before his departure, appointed Axbogastes master-general of the armies in Gaul. Arbogastes, it is said, resolved either to rule or to ruin the empire of the west. Justina did not long survive the restoration of her son. Arbogastes undermined his power, and insulted him to his face. Valentinian was found strangled in his apartment, a.d. 392. Arbogastes bestowed the purple on a Eoman — one of his tools — the rhetorician Eugenius. The ambassadors of the new emperor were sent to Theodosius. He dismissed them with splendid presents and an ambiguous answer. He spent two years in his preparation for the over- throw and chastisement of Arbogastes. Late in the summer of A.D. 394, Theodosius met Arbogastes ia the north of Italy, on the banks of the Frigidus -^ a desperate battle was fought during the whole day, in which the advantage was with Arbogastes. Night came to the relief of Theodosius. When day broke, Theodosius found that during the night Axbogastes had sur- rounded him. He realized the extremity of his danger. At that moment a friendly message from the leaders of the forces in his rear dispelled his apprehension. Theodosius was victorious. Eugenius was beheaded, Arbogastes died by his own hand. The Severance of the Eastern from the Western Empire.— About four months after, feeling that, though only fifty, he had not long to live, Theodosius solemnly divided the empire, nominated his son Arcadius emperor of the east, and his son Honorius emperor of the west. He died of dropsy on the 17th January, A.D. 395. Theodosius has by some been styled " the Great." 1 126. 142 OUTLINE or ROMAN HISTORY. The Western Empire, A.D. 395—399 ; Hondrius, A.D. 395— 423. — On the 17tli January, a.d, 395, HonoriuS was saluted emperor, he then heing" eleven years of age. Stihcho, the" uncle of the young emperors, and who regarded himself as their natural guardian, had been made by Theodosius master- general of the Roman forces in the west. He now became actual ruler of the west. In the summer of a.d. 395, Alaric, the bold and able leader of the Groths, entered Macedonia,^ and during that and the following year ravaged almost the whole' of Greece. In a.d. 396, Stilicho resolved to chastise the invader, and for that purpose marched into Peloponnesus;^ but the ministers of Arcadius, more jealous of Stilicho than fearful of the Groths, promoted their leader to the rank of master- general of the eastern Illyricum,* whereupon Stilicho retired. The talent and successes of Alaric induced the Visigoths to proclaim him their king. He resolved on the invasion of Italy. His ambition was to plant the Grothic standard on the walls of Eome. The Eastern Empire, A.D. 395 — 399; Arcadius, A.D. 395— 408. — On the 17th January, a.d. 395, Arcadius was saluted emperor of the east, when eighteen years of age. Eufinus, the praefect of the east, conspired to become its actual ruler; but at the instance of Stilicho, he was assassinated by the soldiers of Gainas the Groth on the 27th November, a.d. 395. From A.D. 395, Eutropius, the eunuch, was the actual governor of the east till a.d. 399, when he fell a victim to the intrigues of Gainas, and was put to death. > 173. 2 175. 3 142. ( 143 Chapter XI. THE mLFIKE— continued. THE FIFTH CENTURY, i.e., A.X;.C. 1153 till A.T7.C. 125S;— A.D. 400 to A.D, 499, The "West. A.D. 395 to 423. HONOEIUS. 423—425. THEODOSIUS II. (West and East). 423—455. VALENTINIAN III. 455. PETKONIUS MAXIMUS. 455—456. AVITUS. 457—461. MLAJORIAN. 461—467. LIBIUS SEVERUS. 467—472. ANTHEMIUS. 472. OLYBRIUS. 473-474. GLTCERIUS. 474—475. JULIUS NEPOS. 475-476. ROMULUS AUGUSTULUS. 144 outline of roman history. The East. 395—408. ARCADIUS. 408—450. THEODOSIUS 11. 450—463. PULCHERIA (EmpresB). 450—457. MARCIAN. 467—474. LEO I. 474. LEO II. 474-491. ZENO. 491—518. ANASTASIUS I. Jurists. (iVoi! One.) Orators, Historians, PMlosophers, Poets, &c, MACROBIUS (AURELIUS AMBROSIUS THEODOSIUS), prose writer, died atout a.d. 420. THE WESTERN EMPIRE. Honorius, A.D. 395 — 423.— In a.d. 402, and toward the end of the year, Alario appeared under the walls of . Milan before StiHcho had had time to prepare for his reception. Honorius fled to Eavenna.i By the spring of a.d. 403, Stilicho had collected troops from Graul, Germany, and Britain. At Easter he attacked Alaric near Pallentia,^ and practically annihilated the Grothic infantry. Alaric escaped, however, with the larger part of his cavalry. He resolved to conquer or to die before the gates of Eome. For reasons best known to himself, Stilicho resolved, if pos- sible, to buy ofE the Goths. Alaric hesitated. His chieftains urged him to accept the bribe. A treaty was concluded. The Goths repassed the Po (Padus) ' with the remnant of their army and a pension. In a.d. 404, Honorius celebrated the event by a ' 127. 2 52. 3 127. THE ROMAN EMPIRE. 145 trmmplial procession, and the usual, games, the last at which a Eoman assemWy witnessed a gladiatorial combat. Honorius fixed his residence in the inaccessible fortress of Eavenna upon the Adriatic. In A.D. 405, a large force composed of Yandals (Slavonians), of Suevi (Germans), of Burgundians (Germans), and of Alani (Scythians), under their leader Eadegast (Eadagasius), passed the Alps, the Po, and the Apenniaes. Many Italian cities were pillaged, some destroyed. Stilicho at length succeeded in so surrounding them that famine, rather than the sword, wrought their destruction. Eadegast was beheaded. Two parts of his army, estimated at not less than 100,000, made their way into Gaul, of which they made them- selves the masters, a.d. 406, On the 23rd August, a.d. 408, Stilicho fell a victim to the suspicions of Honorius and the intrigues of Olympius, and was beheaded. In A.D. 408, Alaric appeared before the walls of Eome. He starved the city into submission. The price of his departure, which took place ia December, was 5,000 pounds of gold, 30,000. pounds of silver, 4,000 robes of silk, 3,000 pieces of fine scarlet cloth, and 3,000 pounds weight of pepper. He settled in the fair and fruitful province of Tuscany. ^ In A.D. 409, Honorius refused to appoint Alaric master-general of the armies of the west. Alaric laid siege to Ostia,^ the granary of Eome. The prssfect AttaluS; proclaimed emperor at the instance of Alaric, acknowledged Alaric master-general of the armies of the west. Alaric again made overtures to Honorius, and undid Attains to forward his projects, but, beiag unsuccessful, again visited Eome. At midnight the Salarian gate was silently opened to him. The inhabitants were awakened by the sound of the Gothic trumpets. It is said that Alaric bade his followers to help themselves freely, but to respect the churches of Saint 128. 146 OUTLINE OF ROMAN HISTOKY. Peter and Saint Paul, and not to shed innocent blood. Be that as it may, the streets were filled with dead bodies. The 40,000 Eoman slayes may have taken some part in the slaughter. After a pillage of six days, the Groths retired. Articles of value and small compass not satisfying their cupidity, sideboards of massy plate, splendid and costly furniture, works of art, vases, and, indeed, everything fancied by them, was tumbled into their waggons. Alaric, after a short illness, died in A.D. 410. He was succeeded by his brother-in-law, Adolphus. Adolphus offered himself, and was accepted, as an ally of Honorius, and in the character of a Eoman general entered Gaul, A.D. 412. In A.D. 414, he, much to the distaste of Honorius and his ministers, but not to that of the lady herself, married Placidia, the daughter of Theodosius. In the same year it was his good fortune to restore Graul to the rule of his brother-in- law, Honorius. In the same year Adolphus marched into Spain for the purpose of recovering that also ; but, being assassinated there in a.d. 415, the task devolved on his successor, WalHa, who, in the course of three campaigns, conquered the Vandals, and again annexed Spain to the empire of Honorius. On their return to Gaul in a.d. 418, Honorius bestowed on the Goths the maritime province between the Garonne and the Loire. The royal residence of the Goths was fixed at Toulouse.^ In A.D. 409 Britain and Armorica^ were released by Honorius from allegiance to the Eoman empire. From that year till A.D. 449, the date of the first Saxon invasion, Britain was governed by the nobles, the clergy, and the municipal authori- ties. Honorius died a.d. 423. Valentinian III. (A.D. 423— 455).— After the death of her affectionate husband, Adolphus, and after some sad experiences, Placidia, the widow of Adolphus, the daughter of Honorius, the captive and the queen of the Goths, married the general Con- stantius in a.d. 417, subsequently emperor for seven months, by whom she had two children, Honoria and Valentinian. 1 82. 2 64. THE ROMAN EMPIRE. 147 Valentinian' III. -was declared emperor in the sixth year of his age, A.D. 423. The reins of government were in the hands of Plaoidia. The western empire had at that time two generals of no ordinary ability, ^tius and Boniface. What the two, if united, might have done for the empire, is not easy to say. Their disunion cost it the loss of Airica. ^tius, who was near Plaicidia, for purposes of his own persuaded her to recall Boni- face from the government of Africa, and, at the same time, secretly advised Boniface to disobey the imperial summons, assuring him that his life was in danger. So situated, Boniface invited the Vandal Q-enseric, then in Spain, to his aid. The invitation was accepted. When too late, the fraud of ./iEtius was discovered. Its consequence was equally lamented by Placidia and Boniface. Boniface, with the aid of the eastern empire, endeavoured in vain to dislodge G-enseric. Leaving Africa in the hands of Q-enseric, Boniface returned to Placidia, by whom he was made master-general of the Eoman armies of the west. In A.D. 432 Boniface died of a mortal wound, received in combat with .^tius. .Sltius was proclaimed a rebel by Placidia, and thug the west, by the fraud of JEtius, lost Africa and its two, then, most competent soldiers, ^tius retired for a time to the tents of the Huns, to whom he was indebted for his safety and subsequent restoration to power. At the head of 60,000 Huns, .ffitius presented himself before Placidia, not to supplicate pardon, but to demand restoration to power. He left Yalentinian in the possession of the purple, and permitted bim to enjoy in indolence the luxury of Italy. Master of the whole military power of the west, ^tius culti- vated the alliance of the Huiis,^oncluded a treaty with Genseric, restored the imperial authority in Graul and Spain, aided the Britons, made the Franks and Suevi his confederates, and concluded a peace with Theodoric, king of the Visigoths, in oonjunotion with whom he met Attila in the plains pf Chalons.^ 1 94. l2 148 OUTLINE OF KOMAN HISTORY. Some say that 162,000, otliers that 300,000, fell in that memor- ahle eneoTinter. Theodorio was slain, but Torismond, his son, forced Attila to give way. Approaching night prevented the total defeat of Attila, whose retreat heyond the Ehine confessed the last victory achieved in the name of the western empire, A.B. 461. The avowed object of the invasion of Attila had been to claim the hand of Honoria, the daughter of Placidia, and with her a share of the imperial patrimony. In the spring of a.d. 462, Attila renewed his demand. It was again rejected. Attila crossed the Alps ; Aoquilia, Altinum, Concordia, and Padua were reduced to heaps of ruins ; Yicenza, Verona, and Bergamo were sacked; the inhabitants of Milan and Pavia delivered up their wealth and applauded the Hun clemency which spared them their lives. Avienus and Leo, bishop of Rome, headed an embassy to AttHa. The deUveranee of Italy was purchased by the promised surrender of Honoria and her dower. Attila had numerous wives. While waiting for his Honoria, he took to himself another, the young and beautiful Ildico. Before the arrival of Honoria, Attila ruptured an artery and died, a.d. 453. JEtius demanded Eudoxia, the emperor's daughter, in mar- riage for his son Gaudentius. Pressiag his suit, apparently too warmly, Valentinian drew his sword, the first sword he had ever drawn, and plunged it into the breast of iEtius, the general who had saved his empire, a.d. 454. By a base artifice, the chaste and beautiful wife of Petronius Maximus, a wealthy senator, was decoyed into a remote and silent bedchamber of the palace, where she wa,s violated by Valentinian. Maximus incited two of the followers of JEtius to avenge their master's death. Valentinian was stabbed to the heart on the 14th March, a.d. 455. Ortolan says : — " Valentinian III., the emperor of the west, also published it [The Theodosian Code, see post, p. 152] ia the same year, and the discovery made by M. Clossius in our own time, together with other interesting documents, presents us with the verbal process employed for the reception of this code THE ROMAN EMPIRE. 149 by the Eoman senate, and the acclamations to which it gave rise : ^Augusti Augustorum, Maximi Augustorum,' eight times repeated ; ' God has given thee to us, may He preserve thee to us ' {Deus vos nobis dedit, Beus vos iiohis servet), repeated twenty- seven times ; ' Hope lives ia thee, safety depends upon thee ' {Spes in wbis, salus in to&w), repeated twenty-six times ; ' Dearer than our children, dearer than our fathers ' {Liberis cariores, parentibus cariores), repeated sixteen times ; ' Honours spring from thee, patrimonies are derived from thee, all things flow from thee' {P&r vos honores,per vos patrimonia, per vos omnia), repeated twenty-eight times." ^ Between the death of Valentinian and the fall of the western empire (a.d. 476), no fewer than nine emperors in succession occupied the throne. Their names appear in chronological order at the head of this chapter. For fourteen days and nights, i. e., from June 15th to the 29th, A.D. 455, Eome was pillaged by Grenserio, who returned to Africa, his vessels laden with its spoil, taking with him as his prisoners Eudoxia, the widow of Valentiaian, and her two daughters. Eudoxia, the elder daughter of Valentinian, haviag reluctantly become the wife of Hanneric, the eldest son of Genseric, gave to Genseric a pretext for demanding, on the behalf of his daughter-in-law, an adequate portion of the imperial patrimony. The emperor of the east purchased his peace with Genseric. We pass over the acts of Eicimer, the actual, though not the nominal, ruler of the west; the murder of three, if not of four of its emperors ; the fact of the practical division of Italy into two hostile kingdoms ; but pause to note the epistle addressed by the unanimous decree of the Eoman senate to Zeno, the emperor of the east. In that epistle the Eoman senate solemnly dis- claimed the necessity and even the wish to continue any longer the imperial succession in Italy, since, in their opinion, the majesty of a sole monarch was sufficient to pervade and protect both the east and the west. They begged that Zeno would invest Odoacer with the title of patrician and the administration ' Prictard aud Nasmith's Translation, p. 418. 150 OUTLINE OF ROMAN HISTOKY. of the diocese of Italy. The imperial ensigns, the sacred orna- ments of the throne and palace, were forwarded to and accepted by Zeno. Odoacer, the son of Orestes, the subject of Attila the Hun, became the ruler of Italy, a.d. 476. THE EASTERN EMPIRE. Arcadius, A.L. 395 — 408. — The ^ reign of Arcadius is marked by the rebellion of the Goths, already mentioned in connection with the history of the west ; the conspiracy of Grainas agaiast Eutropius, one of the principal eunuchs of the palace of Oon- stantinople, and the actual riiler of the east from a.d. 395 tUl 399 ; the revolt of Grainas, and his execution in January, a.d. 401 ; the expulsion of St. John Ohrysostom, the archbishop of Con- stantinople, whose pastoral labours provoked and gradually united against him two sorts of enemies — ^the aspiring clergy, who envied bis success, and the ministers and ladies of the court, who were offended by his orations, in which he declaimed with peculiar asperity against female vices, not hesitatiag, in the exordium of one of his sermons, to exclaim, alluding to the empress Eudoxia, " Herodias is again furious; Herodias again dances ; she once more requires the head of John," an insolent allusion, which, as Gibbon says, " a woman and a sovereign, it was impossible for her to forgive." He was banished, and expired in the sixtieth year of his age, a.d. 407. Theodosius II., A.D. 408 — 450. — At the date of bis accession Theodosius was seven years of age. The prsefeet Anthemius assumed the government. When sixteen years of age, Pul- cheria, the eldest sister of Theodosius, received the title of augusta. It was she who, in fact, governed during the whole of her brother's reign. She and her sisters, Arcadia and Marnia, in the presence of the clergy and the people, dedicated their virginity to God. The palace was, in effect, converted into a nunnery. The sisters renounced the vanities of life, and spent much time in religious exercises. Pulcheria, however, THE EOMAN EMPIRE. 151 never sufiered her attention to be diverted from tlie affairs of state. Her deliberations were matured ; her actions prompt and decisive. Sbe selected a wife for her brother, the celebrated Athenais, educated in the religion and sciences of the Greeks, who received at her baptism the christian name of Eudocia ; and when that lady's ambition subsequently induced her to aspire to the government of the east, Pulcheria prevailed, and Eudocia was banished. During the reign of Theodosius, the kingdom of Aimenia was finally divided between the Persians and the Eomans. Between a.d. 441 and 450, Attila ravaged the eastern empire between the Euxine and the Adriatic, but nothing could induce Theodosius to appear in person at the head of his legions. In three successive engagements his forces were vanquished. Thrace and Macedonia were ravaged without resistance and without mercy. The walls of Constantinople protected Theodosius, his com't, and his unwarlike people, while seventy of the cities of the empire were being successfully erased from the face of the earth, and their inhabitants slaughtered. Theodosius sued for peace. Attila granted it on terms, viz : — (1) The cession to Attila of the extensive and important territory on the southern baiJss of the Danube, between Singidimum or Belgrade and Novae in the diocese of Thrace. (2) An annual tribute of 2,100 pounds of gold. (3) The payment down of 6,000 pounds of gold. (4) The unconditional surrender of all Huns taken prisoners by the Eomans. (5) The ransom of all Eoman prisoners at twelve pieces of gold per head. Theodosius had yet one degree lower to fall. He became party to the proposed assassination of Attila. Thrown from his horse, Theodosius was seriously injured, and expired some days later, on the 28th July, 450. Contemptible as was the man, the period of his reign is of considerable interest to the Jurist. The Gregorian and the Hermogenian Codes. — Between a.d. 312 and A.D. 429, but when, exactly, is not known, two works were pubhshed under the respective titles of " Gregoriams Codex" and " Eermogenianus Codex." Neither of these codes has descended 152 OUTLINE OF ROMAN HISTORY. to US in a complete form. Our knowledge of tliem is limited to extracts from them, found in more recent works, and to state- ments in those works concerning them. We are told that they contained a collection of the imperial rescripts down to the time of Oonstantiae (a.d. 306—337) . "We are told that Theodosius ordered the code that bears his name, and which was published a.d, 438, to be constructed on the model of these codes, and that his example was subsequently followed by Justinian, in the case of the code published by him a.d. 529. If this be so, these codes were collections of imperial rescripts, or rather parts of the im- perial rescripts, under titles indicative of the subject dealt with; the rescripts, or parts of rescripts, on a given subject being arranged in their chronological order. Lex de Responsis Prudentum, A.D. 426. — By this constitution bearing the name of Theodosius, the works of Papinian, Paul, G-aius, Ulpian, and Modestinus were confirmed, as also those passages from other jurists quoted by them. The previous enactment as to the notes of Paul and Ulpian on Papinian was a£Eirmed. When those authorities differed, the majority deter- mined the point ; when equally divided, the opinion supported by Papinian was to prevail ; i£ Papinian was silent, the judge was free to take which he pleased. By this enactment the labour of judges and the legal profession was reduced to the level of the living jurisprudence of the period. The seed, long before sown — when authority was substituted for argument, and legal practi- tioners were converted from reasoning beings into mere quoting and counting machines — had taken root, had grown apace, and had choked aU true science. A matter of peculiar interest in connection with this lex is the fact that Gaius is ranked with Papinian, Paul, Ulpian, and Modestinus. Theodosian Code, A.D. 438. — This code or collection of rescripts was prepared by the order, or perhaps, more correctly, with the sanction of the emperor whose name it bears, on the model of the Gregorian and Hermogenian codes {ad similitudinem Gre- goriani atque Sermogemani codicis). It brought the collection down to date. For the preparation of this code the emperor THE ROMAN EMPIEE. 153 appointed two successive commissions — tlie first in a.d. 429, in ■whicli were eight members of the rank of illustres or specfaUles, and a jurist styled 'vir disertissimus et scolasticus ; the second in A.D. 435, in which were sixteen members illustres, or spectabiles. At the head of each was Antiochus, a man of consular and prse- fectorial dignity. The preparation of this work involved, so we are told, the labour of nine years ; and when published it was declared to be the sole source of imperial law {jus principale) , Valentinian III., the emperor of the west, also published it in the same year as the imperial law of his people. Among the many acclamations in the Eoman senate to which the pubHeation gave rise was this, " Let it be forbidden to add notes."! The Novelise. — All constitutions that were enacted subsequently to the publication of the Theodosian code were styled novellce. As the code was made law both in the east and the west, it was agreed that novellce should not have the force of law, till having been initiated in one empire they had been also published in the other. The novellce that appear in the code of Justinian are those of the east only. Ortolan, alludiag to this period, says : — " We have now reached the last regulation of the lower empire, concerning the authority of the jurists. The first step which bound the judges in this respect was made by Adrian when he ordered them rather to count than to weigh the responsa prudentum. This direction was, however, well fenced, and the judges were only bound where there was unanimity of opinion ; where this did not exist they were free to elect. Oonstantiae, when he invalidated the notes of IJlpian and Paul upon Papinian, did not change the rule : he only desired, by a legislative act, to disentangle Papinian from the controversy which had tended to obscure him, and he in this way aided the tendency which ia fact then existed to give to the dicta of Papinian authority iu' all cases where there was a difference of opiaion. Such was the condition of things 1 It is reported that Napoleon I., on seeing the iirst commentary on his Civil Code, exclaimed, "My code is lost!" 154 OUTLINE OF ROMAN HISTOKY. till the period at which we have arrived, that is to say, for more than a century after Oonstantine : but this rule requiring unanimity in so great a number of opinions, collected from different and remote periods, and in default of unanimity leaving the judge free to act, was altogether behind the then state of legal knowledge. The science had, decayed step by step, and the ancient jurists were rapidly becoming obsolete. It became necessary to concentrate and reduce. It was clearly necessary with regard to the imperial constitutions, and it soon became equally evident that it was as necessary with regard to the works of the jurists. There was a desire to meet this want, and to facilitate the task which fell upon judges, suitors, and advocates, by limiting the .collective body of legal opinions to the works of a comparatively small number of authors, who were the best known, and were designated by name : on the other hand, it made them mere machines. These were the final results of a vicious principle which attributed to the opinions of certain accredited jurists the force of laws, instead of allowiag those opinions to rest upon their legitimate basis — the force of reason and intellect. These were the last fruits developed in the course of time from the seeds which the despotism of Augustus had first sown when he instituted a class of official jurists. It ended in their becoming conditores legum. This new rule is con- tained in a constitution which it is customary to call the M des citations, or lex de respomis prudentum, and which has been preserved in the ancient fragments of the Theodosian code, in- serted in the Breviarium Alaricianum, which emanated in fact from Theodosius II., a.d. 426. It was, however, first published for the western empire in the name of Valentinian, then an infant, and was subsequently enforced both in the east and in the west." " This constitution mentions by name five of the most cele- brated modem jurists — Papinian, Paul, Gains, TJlpian, and Modestinus : it declares that it confirms all their writings, so that Gains has the same authority as either of the others. This principle is, as it were, the pivot upon which judges, Ktigants, advocates, and the public had to turn. " As to' the other jurists, the constitution confirms them, but THE ROMAN EMPIRE. .155 only in those oases wliere the five jurists just mentioned had introduced passages from them into their own works, such as Sesevola, Sabinus, Julian, Maroellus, and others, provided that the correctness of the quotation was ascertained by a comparison of manuscripts. This proviso was rendered necessary by the possibility of errors creeping into the old MS8. The works of these jurists and of those whose decisions they quoted, the accuracy having been secured by comparison of different MSS., were the authorities to .which it was permitted to refer, to deter- mine and solve all legal diffieulties. " The constitution adds that the notes of Paul and TJlpian upon Papinian should continue to be held invalid, as they had been declared to be by Constantino, and it was necessary, inas- much as the term scripta universa, which is general, had been employed, that the restriction also should be specified. As to the notes of Mercian, from the simple fact that nothing was said as to them, they remained under the proscription, with which we know they had been branded by an enactment, the text of which we do not however possess. " The jurists whose works it was permitted to quote, and whose opinions were thus supposed to be settled, having been fixed by law, the judge and the parties iaterested were bound by them, provided that if these authorities differed the majority determined the point ; if they were equally divided, the opinion supported by Papinian was to prevail, and if the opinion of Papinian was not expressed, the judge was at liberty to follow whichever he pleased. " We may well ask what the magistrates, judges, and lawyers of that period were Hke, when we find the duties of their respective offices reduced to mere compilation or comparison and numerical calculation of legal opinions. "Was this a legitimate application of the powers of reason and of learning ? Assuredly the science of jxxrisprudenoe could not sink to lower depths of degradation. . . ." "In addition to the enactments of Theoddsius upon the works of the jurists, to which we have just alluded, we have others, enacted three years later, on 'the imperial constitu- tions. He took as a model {ad similitudincm Oregoriani atque 156 OUTLINE OF KOMAN HISTORY. Hormogeniani Codicis) the collection of rescripts methodically arranged and puhlished under the title of codes, but with- out legislative authority, by Gb-egorianus and Hermogenianus, and which did not go below the tirde of Gonstantine, and he directed a similar collection [of all the constitutions of Constaritine and the succeeding emperors, including himself, commencing from the period when the other collection left off, to be drawn up by two successive commissions under the super- intendence of Antiochus, ex-consul and ex-prsetorian prsefect [cuiictas colligi consHtuMones decernimus, quas Comtantinus inclytm', et post eum dim Prindpes Nosqiie tulimus). In the title of this collection, we find set down the composition of the first commis- sion, which was appointed a.d. 429, in which there were eight members of the rank of illustres or spectabiles,a.n6L a jurist styled t)ir disertissimus et scolasticus, and the appointment for the same object of a second commission, a.d. 435, in which were sixteen members, illustres or speotabiles. In both cases, at the head of these commissions, we find the name of Antiochus, a personage of consular and prsefectorial dignity. The principal object assigned by Theodosius for this undertaking was the astonishing paucity of persons familiar with thS civil law {tarn pauci raroque extiterint, qui plena juris civilis scienfia ditarentur). After aU their labours, scarcely two were to be found who had anything like a perfect acquaintance with the law {in tanto lucubrationum fristi pallor evix unus aut alter receperit soliditafemperfeotce doctrince). This is a result which must be attributed to the immense accumulation of hooks {copia immensa lihrorum), and to the pile of imperial constitutions {moles Constitutionum divalium), which involved the human mind in a maze of inextricable confusion {quae velut sub crassce demersa caliginis et obscuritatis vallo sui,. notitiam humanis ingeniis interelusit)." "This work, which was completed after nine years' labour, received the imperial sanction, and was published in the east in the February of a.d. 438, under the name of the Theodosian Code, with the injunction that from the calends of January, a.d. 439, it was to be the sole source of imperial law {jus princi- pale)."^ * Pricliard and Nasmitt's translation, pp. 412 ct seq. THE ROMAN EMPIRE . 157 Pulcheria and Marcian. — On the death of Theodosius, his sister Pulcheria was unanimously proclaimed empress of the east. She was the first female sovereign of the empire. She chose as her associate Marcian, a senator ahout sixty years of age, who hecame her nominal hushand and was solemnly invested with the imperial purple. Pulcheria died a.d. 453, Marcian a.b. 457. Leo I. (A.D. 457 — 474). — ^During three generations the armies of the east were successively commanded hy one Aspar, his father, and his son. Such was the power and popularity of Aspar, who was an Arian, when the throne hecame vacant hy the death of Marcian, that it is said he might have placed the diadem on his own head if he would have subscribed to the Nicene creed. He recommended Leo of Thrace, a military tribune, the principal steward of his own household. His nomination was ratified by the senate. Leo was the first emperor who received the imperial crown from the hands of a bishop. Aspar, knowing that he had placed Leo on the throne, assumed a dictatorial role, and, when he found that he could not appoint a prsefect of Constantinople, presumed to reproach his sovereign with a breach of promise, and insolently shaMng his purple, said, " It is not proper that the man who is invested with this garment should be guilty of lying !" to which Leo replied, " Nor is it proper that a prince should be compelled to resign his own judgment and the public interest to the wiU of a subject." After the fall of Aspar, who had favoured the cause of Grenserio, to whom he is said to have been indebted, Leo listened to the entreaties of Eicimer, nominated Anthemius emperor of the west, and resolved to put an end to the tyranny of the Yandals. He prepared a fleet of 1,113 ships, at a cost of about 5,200,000^., which, with 100,000 soldiers and mariners, was entrusted to Basilicus, the brother of the empress Verina. The troops were landed at about forty miles from Carthage. The efforts of the Yandals, both by sea and land, to oppose his progress were abortive ; and had he pushed on to Carthage, the downfall of the Yandal kingdom seemed assured. He consented, however, it is suggested, induced by private interest, to a truce 158 OUTLINE OF ROMAN HISTORY. for five days, during whieli Grenserio, seizing his opportunity, destroyed the larger part of the Roman fleet by means of fire ships. Basilicus returned to Constantinople, having lost one- half of his ships and men, a.d. 468. Genseric once more ruled the seas, and ravaged the coasts of Italy, Greece, and Asia. He lived to see the final extinction of the empire of the west. He died A.D. 477. The remaining years of this century may be passed over in silence. ( 159 ) Chapter XII. THE BMPmE—contimied. THE SIXTH CENTTJBY. i.e., A.U.C. 1253 till A.TT.C. 1352 ;— A.D. 500 till A.D. 599. The East. 491—518. ANASTASIUS I. 518—527. JirSTIN' I. 527—565. JUSTINIAN. Anastasius I., A.D. 491 — 518.— The chief characteristic of the twenty-seven years' reign of Anastasius is the fact that he not only delivered his people from the most odious and oppressive taxes, but saved from his annual revenue the enormous sum of 13,000,000^. or 320,000 pounds of gold. In A.D. 505, his general, Sabinian, with 100,000 men, was defeated by the numerically inferior force of Theodoric in the the fields of Margus,i when the flower of his army, and even the hope of the eastern empire, was irretrievably destroyed. To avenge this ignominious defeat, 200 ships, manned by 8,000 men, were despatched by the Byzantine Court to plunder the sea coast of Calabria^ and Apulia.^ The fleet assaulted the ancient city of Tarentum,^ intemipted the trade and agriculture of a happy country, and sailed back to the Hellespont,* proud of piratical victory over a people whom the Romans still pro- fessed to consider their brethren, a.d. 509. The long wall of sixty miles, built by Anastasius, from the Propontis^ to the Euxiae,^ proclaimed the impotence of his arms. 1 39" N., 54» E. 2 143. - 144. * 189. = 203. 160 OUTLINE OF EOMAN HISTORY. If Anastasius had no soldiers, he had at least monks in plenty, whose charaoteristios, however, do not seem to have heen loyalty, charity, and hrotherly love. The Antioch addition of the now- famiHar words, " Who was crucified for us," to the trisagion (thrice holy)—" Holy, holy, holy, Lord God of Hosts " — nearly cost the emperor his throne and his life. It was his lot to he anathematised as the Maniohsean tyrant, and to witness the first war waged in the name of Christ. YitaUan, a Gothic chief, with an army of Huns and Bulgarians, declared himself the champion of the catholic faith, and in the execution of his pious enterprise depopulated Thrace,^ besieged .Constantinople,^ and exterminated, it is said, 65,000 of his fellow Christians, a.d. 514. Justin I., A.D. 518 — 527. — Justin and two other peasants of his native village in Bulgaria (Dardania or Dacia),' when youths, made their way to Constantinople, where their strength and stature secured them admission among the guards of Leo. Justiu gradually accumulated wealth and honours, and on the death of Anastasius was invested with the purple in his sixty- eighth year. About four months before his death, he caused the diadem to be placed on the head of his nephew, Justinian, whom he had brought up and educated, and who, from that moment, was regarded as the emperor. Justinian I., A.D. 527— 565.— On the 1st April, a.d. 527, Justiaian commenced his reign of 38 years, 7 months, and 13 days. The object of the thin line of general history hitherto traced being to lead the reader gradually down to this period when the history of Roman law is for all practical purposes completed, attention will now be strictly confined to the consideration of Eoman law during this reign. What part the emperor took in the legislation that bears his name it is not easy to say. That he did take personal interest in what he intended and supposed to be legal reform cannot reasonably be doubted, any more than that the burden of the labour nominally fell upon Tribonian, ' 188 2 203. 3 171. THE ROMAN EMPIRE. 161 who was possibly also the prime mover in the matter, and who, - as it will appear, was in fact made the legislator. Tribonian,, who was a native of Sido ia Pamphylia,i is said to have been distiaguished for the diversity of his mental attain- ments. His actual or reputed acquaintance with jurisprudence secured for. him the favour of Justiuian, who raised bim to the rank of quaestor of the palace and consid. He has been com- pared to our Bacon, whether justly or otherwise may be matter of doubt. The two, it is said, combined great and diversified learning with the vice of avarice. Each, as matter of history, was dismissed from high judicial office for corruption. The simi- larity between their respective sovereigns is somewhat striking. Inordinate conceit was their common characteristic. Each sove- reign made a parade of attachment to the religion in fashion at his time, while secretly destitute of any sympathy with it. Justinian married a public prostitute. The morality of James was not above suspicion. The flagrant injustice of Justinian to Belisarius was matched by the treatment by James of Ealeigh. The meanness of the one was equalled by that of the other. Neither enjoyed either the affection or respect of his subjects. Both died unlamented. Facts are superior to aU criticism. The reader can better judge of Justinian from his writings and the books published in his name than from anythiag it would be possible for another to say concerning him. He addressed himself to the senate thus : — " To the Senate of Constantinople. " To diminish the length of lawsuits, and to do away with the confused mass of constitutions contained in the Gfregorian, Hermogenian, and Theodosian codes, published by Theodosius, by his successors, and by ourselves, we wish to put them all together in a single code, under our own auspicious name." (Theodosius had merely said, '^nostra nomine nunptipafus" ; with Justiuian it is, " sub felici," and later, " divino nostri nominis vocahulo") " Efficiently to perform so great a wort, we choose . . . ." (Here foUow the names of ten personages whom Justinian distinguishes respectively with one of these 1 220. N. M 162.: OUTLINE OF ROMAN HISTORY. epithets, excellentissimus, eminentissimus, magnifious, disertis- simus, &c. At their head can he remarked John, ex-quaestor, of. the sacred palace, ex-consul and patrician ; among them, Trihonian or Trihunian, who was soon to assume the first place, and Theophilus, count of the consistory, professor of law at Constantinople.) • "We permit them, suppressing preambles, repetitions, con- tradictory or disused clauses, to collect and classify the laws under proper titles, adding, cutting down, modifying, com- pressing, if need be, several constitutions into a single enact- ment, so as to render the sense more clear, and yet preserve in each title the chronological order, so that their order may be noted by position in the code as well as by date. Ides of February (13 Feb.), a. d. 528." (The work was entrusted to six individuals, and was divided into twelve books. The code, manufactured in the space of one year, was published on the Ides of April (13th April), A. D. 529, and came into force from the 16th of the Kalends of May in the same year.) On its publication, Justinian decreed as follows : — " We forbid all pleaders and advocates to quote, under the penalty of making themselves guilty of fraud, any other consti-, tutions than those which are inserted in our code, or to quote otherwise than is written there ; for these constitutions, together with the works of the ancient interpreters of the law, must suffice to decide all suits. No difficulty must be raised on account of some of them being without date, or of their having been originally only private rescripts." Codex repetitse prseleotiones (A.D. 534). — This work was a second edition of the Code of Justinian embodying fifty de- cisions and certain constitutions of later date than a.d. 529, It Is this edition which we possess. The following table shows its construction and titles : — THE TITLES AJSTD SUB-TITLES OE THE CODE. liber 1. — Tit. 1. De summa trinitate et de fide catholica. 2. De sacrosanctis ecclesiis et de rebus et privUegils earum. 3. De episcopis et clericis et Orphanotrophls et Brephotrophls et Xenodochis et Ptochotrophis et Asceteriis et Monachls et THE ROMAN EMPIKE. 163 piivilegio eorum et oastrensi peoulio et de redimendis captivis, et de nuptlis clerioorum vetitis seu perinissis. 4. De episcopali audientia et de diversis capitulis, qns& ad jus curamque et reve- rentiam pontifioalem pertinent. 5. De liEereticis et Manichaeis et Samaritis. 6. Ne sanctum baptisma iteretur. 7. De apostatis. 8. Nemini licere signum salvatoris Ohristi vel in silice, vel in marmore aut soiilpere aut pingere. 9. De Judseis et ooelicolis. 10. Ne Christianum mancipium hsereticus, vel paganus, vel Judseus liabeat, vel possideat, vel circumcidat. 11. De paganis sacrificiis et templis. 12. De Ms qui ad ecclesias eonfugiunt, vel iM exclamant. 13. De Ms qui in eoclesiis manumittuntur. 14. De legibus et constitutionibus principum et edictis. 15. De mandatis principum. 16. De senatus consultis. 17. De vetere jure enucleando et de auctori- tate juris prudentium qui in Digestis referuntnr. 18. De juris et faoti ignorantia. 19. De precibus imperatori ofEerendis et de quibus rebus supplicare liceat vel non. 20. Quando libellus principi datus litis contestationem faoit. 21. Dt lite pendente, vel post provocationem, aut definitivam sententiam, nulli liceat imperatori supplicare. 22. Si contra jus vel utilitatem pub- Heam, per vel mendacium fuerit aliquid postulatum vel impe- tratum. 23. De diversis rescriptis et pragmaticis sanctionibus. 24. De statuis et imaginibus. 25. De Ms qui ad statuas eon- fugiunt. 26. De officio prsefectorum prsetorio orientis et niyrici. 27. De officio prsefecti prsetorio Africse et de omni ejusdem dioeceseos statu. 28. De officio preefecti urbi. 29. De officio magistri militum. 30. De officio qusestoris. 31. De officio magistri officiorum. 32. De officio comitis sacrarum largitionum. 33. De officio comitis rerum privatarum. 34. De officio comitis sacri ' palatii. (34 bis.) De officio comitis sacri patrimonii. 35. De officio proconsulis et legati. 36. De officio comitis orientis. 37. De officio prsefecti Augustalis. 38. T)e officio vicarii. 39. De officio prsetorum. 40. De officio rectoris provincise. 41. Dt nulli patriae suae administratio sine speciaU permissu principis permittatur. 42. De quadri- menstruis tarn civilibus quam militaribus brevibus. 43. De officio prsefecti vigilum. 44. De officio prsefecti annonse. 45. De officio civilium judioum. 46. De officio militarium m2 164 OUTLINE OP ROMAN HISTORY, judicum. 47. Ne oomitibus rei militaris, vel trlbunis lavacra prsBstentur. 48. De oflEicio diTersorum judioum. 49. TJt omnes tam civiles, quam militares, judices post administra- tionem depositam per quinquaginta dies ia civitatibus vel certis locis permaneant. 50. De officio ejus qui vicem alicujus judiois vel prsesidis obtinet. 61. De adsessoribus et domestiois et cancellariis judicum. 52. De annonis et capitu adminis- trantium, vel adsessorum aliorumve publicas sollicitudines gerentium, vel eorum qui aliquas eonseeuti sunt dignitates. 53. De contractibus judicum, vel eorum qui sunt circa eos, et inbibendis donationibus in eos faciendis et ne administrationis tempore proprias sedes isdificent sine sanctione pragmatiea. 64. De modo multarum quae ab judicibus infliguntur.- 55. De defensoribus civitatum. 56. De magistratibus municipalibus. 57. De officio juridici Alexandriee. liber 2. — Tit. 1. De edendo. 2. De in jus vocando. 3. De pactis. 4. De transactionibus. 6. De calculi errore. 6. De postulando. 7. De advocatis diversorum judiciorum. 8. De advocatis diversorum judioum.^ 9. De- advocatis fisci. 10. De errore advocatorum vel libeUos seu preces ooncipientium. 11. Dt quae desunt advocatis partium judex suppleat. 12. Ex quibus causis infamia inrogatur. 13. De procuratoribus. 14. Ne liceat potentioribus patrocinium litigantibus prsestare, vel actiones in se transferre. 15. De bis qui potentiorum nomine titulos prsediis adfigunt, vel eorum nomina in lite prsetendunt. 16. TJt nemo privatus titulos prsediis suis, vel alienis imponat, vel vela regalia suspendat. 17. TJt nemini li.ceat sine judicis auctoritate signa imprimere rebus, quas alius tenet. 18. Ne fiscus vel respublica procurationem alicui patro- oinii causa in lite prsestet. 19. De negotiis gestis. 20. De bis quae vi metusve causa gesta sunt. 21. De dolo malo. 22. De in integrum restitutione minorum viginti quinque annis. 23. De filio familias minore. 24. De fidejussoribus minorum. 25. Si tutor, vel curator intervenerit. 26. Si in communi eademque causa in integrum restitutio postuletur. 27. Si adversus rem judicatam. 28. Si adversus venditionem. 29. Si adversus venditionem pignoris. 30. Si adversus donationem. ^\-'l--^-~^5 ^ ^^^ ^ commonly form one title, § 8 teing in fact a continuation of § 7. THE KOMAN EMPIEE. 165 31. Si adversus libertatem. 32. Si adversus transactionem vel divisionem minor restitui velit. 33. Si adversus solutionem a debitore vel a se faotam. 34. Si adversus dotem. 35. Si adversus delictum suum. 36. Si adversus usuoapionem. 37. Si adversus fiseum. 38. Si adversus creditorem. 39. Si ut se tereditate abstineat. 40. Si ut omissam hereditatem vel bono- rum possessionem, vel quid aliud adquirat. 41. In quibus causis in integrum restitutio neoessaria non est. 42. Qui, et adversus quos, in integrum restitui non possunt. 43. Si minor se majorem dixerit vel probatus fuerit. 44. Si ssepius in integrum restitutio postuletur. 45. De bis qui veniam sstatis impetraverunt. 46. Si major faotus ratum babuerit. 47. Ubi, et apud quern, cognitio in integrum restitutionis agitanda sit. 48. De reputationibus quae fiunt in judicio in integrum restitu- tionis. 49. Etiam per proouratorem eausam in integrum resti- tutionis agi posse. 50. In integrum restitutione postulata ne quid novi fiat. 51. De restitutione militum et eorum qui reipublicse causa afuerunt. 52. De uxoribus militum, vel eorum, "qui reipublicse causa absunt. 53. De temporibus in integrum restitutionis tarn minorum, et aliarum personarum, quae restitui possunt, quam etiam beredum eorum. 54. Quibus ex causis majores in integrum restituuntur. 55. De alienatione judicii mutandi causa facta. 56. De reoeptis. 57. De satisdando. 58. De formulis et impetratione actionum sublatis. 59. De jurejurando propter oalumniam dando. liber 3. — Tit. 1. De judicus. 2. De sportuHs et sumptibus in diversis judioiis faciendis et de exsecutoribus litium. 3. De pedaneis judicibus. 4. Qui pro sua jurisdictione judices dare darive possunt. 5. Ne quis in sua causa judicet vel sibi jus dicat. 6'. Qui legitimam personam in judiciis babent vel non. 7. Ut nemo invitus agere vel accusare cogatur. 8. De ordine judici- orum. 9. De litis contestatione. 10. De plus petitionibus. 11. De dilationibus. 12. De feriis. 13. De jurisdictione omnium judicum et de foro competenti. 14. Quando imperator inter . pupillos vel ^iduas vel miserabiles personas cognoscat • et ne exbibeantur. 15. Ubi de criminibus agi oportet. 16. Ubi de possessione agi oportet. 17. Ubi fidei-commissum peti 166 OUTLINE OF ROMAN HISTORY, oportet. 18. TJbi conveniattir qui certo loco dare promisit. 19. Ubi in rem actio exerceri debet. 20. TJbi de hereditate agatur et ubi scripti beredes in possessionem mitti postulare jdebbnt. 21. Ubi de ratiociniis tarn publiois quam privatis agi ,t)portet. 22. Ubi causa status agi debeat. 23. Ubi quis de -curiali vel cohortali aliave condicione conveniatur. 24. Ubi senatores vel clarissimi civiliter vel criminaliter conveniantur. 25. In quibus causis mUitantes fori prsescriptione uti non pos- sunt. 26. Ubi causae fiscales vel divinse domus bominumque ejus agantur. 27. Quando lioeat unicuique sine judice viudicare se vel publicam devotionem. 28. De inofficioso testamento. 29. De inofficiosis donationibus. 30. De inofi&oiosis dotibus. 31. De petitione bereditatis. 32. De rei vindicatione. 33. De usufructu et babitatione et ministerio servorum. 34. De servi- tutibus et de aqua. 35. De lege Aquilia. 36. Familise ereiscundse. 37. Oommuni dividundo. 38. Communia utiius- que judicii tam famUise ereiscundse quam oommuni dividundo. 39. Knium regundorum. 40. De consortibus ejusdem litis. 41. De noxaUbus aotionibus. 42. Ad exbibeudum. 43. De aleatoribus et alearum lusu. 44. De religiosis et sumptibus funerum. Liber 4. — Tit. 1. De rebus creditis et jurejurando. 2. Si eertum petatur. 3. De sufEragio. 4. De probibita sequestra- tione pecunise. 5. De condictione indebiti. 6. De condictione ob causam datorum. 7. De condictione ob turpem causam. 8. De condictione furtiva.. 9. De condictione ex lege et sine causa vel injusta causa. 10. De obligationibus et actionibus. 11. Ut actiones et ab berede et contra beredem incipiant. 12. Ne uxor pro marito vel maritus pro uxore vel mater pro filio conveniatur. 13. Ne filius pro patre vel pater pro filio emancipate, vel libertus pro patrono conveniatur. 14. An servus ex suo facto post manumissionem teneatur. 15. Quando fiscus vel privatus debitoris sui debitores exigere potest. 16. De aotionibus bereditariis. 17. Ex delictis defunctorum in quantum beredes oonveniantur. 18. De eonstituta pecunia. 19. De pro- bationibus. 20. De testibus. 21. De fide instrumentorum et amissione eorum et antapoobis faoiendis et de bis qu£B sine THE ROMAN EMPIRE. 167 soriptura fieri possunt. 22. Plus valere quod agitur quam quod simulate oonoipitur. 23. De commodato. 24. De pigneratioia aotione. 25. De exereitoria at institoria aotione. 26. Quod cum eo qui in aHena est potestate negotium gestum esse dieitur, Tel de peculio seu quod jussu aut de in rem verso. 27. Per quas personas. nobis adquiritur. 28. Ad senatusconsultum Macedonianum. 29. Ad senatusconsultum Yelleianum. 30. De non numerata pecunia. 31. De oompensationibus. 32. De usuris. 33. De nautico foenore. 34. Depositi. 35. Mandati. i36. Si servus se emi mandaverit. 37. Pro socio. 38. De oontrabenda emtione et Tenditione. 39. De hereditate vel .actione vendita. 40. Quae res venire non possunt, et qui ven- dere vel emere vetantur. 41. Quae res exportari non debeant. 42. De eunuchis. 43. De patribus qui Alios distraxerunt. 44. De rescindenda venditione. 45. Quando lioeat ab emtione ■discedere. 46.. Si propter publicas pensitationes venditio fuerit «elebrata. 47. Sine sensu vel reliquis fundum eomparari non posse. 48. De periculo et commodo rei venditse. 49. De ;actionibus empti et venditi. 50. Si quis alteri vel sibi sub alterius nomine vel aUena pecunia emerit. 51. De rebus alienis non alienandis et de prohibita rerum alienatione vel hypotbeca. 52. De communium rerum aHenatione. 53. Eem alienam gerentibus non interdici rerum suarum alienatione. 54. De .paetis inter emptorem et venditorem compositis. 55. Si servus exportanduB veneat. 56. Si mancipium ita venierit ne prosti- iuatur. 57. Si mancipium ita fuerit alienatum, ut manumit- tatur vel contra. 68. De sediliciis actionibus. 59. De monopoliis et de conventu negotiatorum illioito vel artificum ergolaborumque nee non balneatorum probibitis iUicitisque negotiationibus. .60. De nundinis. 61. De vectigalibus et commissis. 62. Vec- tigalia nova institui non posse. 63. De commerciis et merca- toribus. 64. De rerum permutatione et de prsescriptis verbis actione. 65. De locate et conducto. 66. De empbyteutico jure. Liber 5. — Tit. 1. De sponsaHbus et arris sponsaliciis et proxeneticis. 2. Si rector provincise vel ad eum pertinentes -sponsalia dederint. 3. De donationibus ante nuptias vel propter ■nuptias et sponsaliciis. 4. Denuptiis. 5. Deincestisetinutilibus 168 OUTLINjE of ROMAN HISTORY. nuptiis. 6. De interdicto matrimonio inter pupillam et tutorem B6U euratorem Kterosque eorum. 7. Si qiiaeumque prseditus potestate vel ad eum pertinentes ad suppositamm jurisdictioni suae adspirare temptaverint miptias. 8. Si nuptise ex resoripto petantur. 9. De secundis nuptiis. 10. Si sectmdo nupserit mulier, cui maritus usmn fructum reliquerit. 11. De dotis promissione vel nuda poUicitatione. 12. De jure, dotium. 13. De rei uxorise actione in ex stipnlatu actionem transfusa et de natura dotibus prsestita. 14. De pactis conventis tarn super dote quam super donatione ante nuptias et paraphemis. 15. De -dote cauta et non numerata. 16. De donationibus inter virum et uxorem et a parentibus ia liberos factis et de ratOiabitione. 17. De repudiis et judicio de moribus sublato. 18. Solute matrimonio dos quemadmodum petatur. 19. Si dos . constante matrimonio soluta fuerit. 20. Ne fidejussores vel mandatores dotium dentur. 21. Eerum amotarum. 22. Ne pro dote mulieri bona mariti addicantur. 23. De fundo dotaK. 24. Divortio facto apud quem liberi morari vel educari debent. 2&. De alendis liberis ao parentibus. 26. De concubinis. 27. De naturalibus liberis et matribus eorum et ex quibus oasibus justi efficiuntur. 28. De tutela testamentaria. 29. De confirmando tutore. 30. De legitima tutela. 31. Qui petant tutores vel curatores. 32. Dbi petantur tutores vel curatores. 33. De tutoribus et curatoiibus illustrium vel clarissimarum personamm. 34. Qui dare tutores vel curatores et qui dari possunt. 35. Quando mulier tutelse officio fungi potest. 36. In quibus causis tutorem habenti tutor vel curator dari potest. 37. De administratione tutorum et curatorum et de pecunia pupiUari feneranda vel deponenda. 38. De periculo tutorum et curatorum. 39. Quando ex facto tutoris vel curatoris minores agere vel conveniri possunt. 40. Si ex pluribus tutoribus vel curatoribus omnes vel unus agere pro miaore vel conveniri possunt. 41. Ne tutor vel curator veetigal conducat. 42. De tutore vel curatore qui satis non dedit. 43. De suspectis. 44. De ia litem dando tutore vel curatore. 46. De eo qui pro tutore negotiagessit. 46. Si mater indemnitatem promiserit. 47. Si contra matris voluntatem tutor datus sit. 48. Ut causae post pubertatem adsit tutor. 49. Tinbi pupilli educentur. 50. De alimentis pupUlo praestandis. THE KOMAN EMPIRE. 169 51. Arbitrium tutelse. 52. De dividenda tutela et pro qua parte quisque tutorum oonveniatur. 53. De in litem jurando. 54. De heredibus tutorum. 55. Si tutor non gesserit. 56. De -usuris pupillaribus. 57. De fidejussoribus tutorum seu curatorum. 58. De oontrario judicio. 59 De auotoritate prsestanda. .60. Quando curatores vel tutores esse desinant. 61. De actore a tutore seu curatore dando. 62. De excusationibus et tem- poribus earum. 63. Si falsis adlegationibus excusatus est. 64. Si tutor rei publiose causa aberit. 65. De exousatione veteranorum. 66. Qui numero liberorum se excusant. 67. Qui setate. 68. Qui morbo. 69. Qui numero tutelarum. 70. De curatore furiosi vel prodigi. 71. De prssdiis vel aliis rebus minorum sine decreto non alienandis vel obligandis. 72. Quando deoreto opus non est. 73. Si quis ignorans rem minoris esse sine decreto comparavit. 74. Si major f actus sine decreto factam aUenationem ratam habuerit. 75. De magistratibus con- veniendis. liber 6. — Tit. 1. Defugitivis servis et libertis mancipiisque ci- vitatum artifieibus et ad diversa opera deputatis et ad rem privatam vel domiaicam pertinentibus. 2. De furtis et de serVo corrupto. 3. De operis libertorum. 4. De bonis libertorum et de jure patronatus. 5. Si in fraudem patroni alienatio facta est. 6. De obsequiis patronis prsestandis. 7. De libertis et eorum liberis. 8. De jure aureorum anulorum et de natalibus restituendis. 9. Qui admitti ad bonorum possessionem possunt, et intra quod tempus. 10. Quando non petentium partes petentibus adcrescunt. 11. De bonorum possessione secundum tabulas. 12. De bonorum possessione contra tabulas, quam praetor liberis poUi- cetiu-. 13. De bonorum possessione contra tabulas liberti, quae patronis vel liberis eorum datur. 14. Dnde liberi. 15. TJnde legitimi et undo cognati. 16. De edicto successorio. 17. De Carboniano edicto. 18. TJnde vir et uxor. 19. De repudianda bononun possessione. 20. De collationibus. 21. De testamento militis. 22. Qui facere testamentum possunt vel non possunt. 23. De testamentis : quemadmodum testamenta ordinantur. 24. De heredibus instituendis et quae personae heredes institui non possunt. 25. De institutionibus et substitutionibus seu 170 OUTLINE OF ROMAN HISTORY. restitutionibus sub condicione faotis. 26. De impuberum et de aliis substitutionibus. 27. De neeessariis et servis beredibus instituendis vel substituendis. 28. De liberis prseteritis vel exberedatis. 29. De postiomis heredibus instituendis vel exberedandis vel prseteritis. 30. De jure deliberandi et de adeunda vel adquirenda bereditate. 31. De repudianda Tel abstiuenda hereditate. 32. Quemadmodum aperiantur testa- menta et inspioiantur et describantur. 33. De edicto divi HadrianitoUendo et quemadmodum soriptus beres in possesBionem mittatur. 34. Si quis aliquem testari proMbuerit vel coegerit. 35. De bis quibus ut indignis auferuntur etad senatusconsultum Silanianum. 36. De oodieillis. 37. De legatis. 38. De verborum et rerum significatione. 39. Si omissa sit causa testament!. 40. De indicta viduitate et de lege Julia miscella toUendo. 41. De bis quse pcense nomine in testamento vel codicillis reliuquuntur, 42, De fideicommissis, 43. Communia de legatis et fideicommissis et de in rem missione toUenda. 44. De falsa causa adjecta legato vel fideicommisso. 45. De bis quse sub modo legata vel fideicommissa reHnquuntur. 46. De condicionibus insertis tam legatis quam fideicommissis et liber- tatibus. 47. De usuris et fructibus legatorum vel fideicom- missorum. 48. De incertis personis. 49. Ad senatusconsultum Trebellianum. 50. Ad legem Falcidiam. 51. De eaducis toUendis. 52. De bis qui ante apertas tabulas bereditates trans- mittunt. 53. Quando dies legati vel fideicommissi cedit. 64. Ut in possessionem legatorum vel fideieommissorum servan- dorum causa mittatur et quando satisdaxi debet. 65. De suis et legitimis liberis et ex filia nepotibus ab intestato venientibus. 66. Ad senatusconsultum Tertullianum. 57. Ad senatus- consultum Orfitianum. 68. De legitimis beredibus. 59. Com- munia de successionibus. 60. De bonis maternis et materni generis. 61. De bonis, quse liberis in potestate constitutis ex matrimonio vel aliter adquiruntur et eorum administratione. 62. De bereditatibus deeurionum naviculariorum coboitaKum mUitum et fabricensium. Liber 7. — Tit. 1. De vindicta libertate et apud consilium manumissione. 2. De testamentaria manumissione. 3. De THE EOMAN EMPIRE. 171 lege Fusia Oaninia toUenda. 4. De fideicommissariis literta- tibuB. 5. De dediticia libertate toUenda. 6. De Latina libertate tollenda et per oertos modes in civitatem Eomanam transfusa. 7. De servo coniinuni manumisso. 8. De servo pignori dato manumisso. 9. De servis reipublicEe manumittendis. 10. De bis qui a non domino manumissi sunt. 11. Qui manumittere non possunt et ne in fraudem creditorum manumittatur. 12. Qui non possunt ad libertatem pervenire. 13. Pro quibus causis servi praemium acoipiunt libertatem. 14. De ingenuis manumissis. 15. Communia de manumissionibus. 16. De liberali causa. 17. De adsertione tollenda. 18. Quibus ad libertatem proolamare non licet, et de rebus eorum, qui ad liber- tatem proelamare non prohibentur. 19. De ordiae cognitionimi. 20. De oollusione detegenda. 21. Ne de statu defunctorum post quinquennium quseratur. 22. De longi temporis prsescrip- tione, quae pro libertate et non adversus libertatem opponitur. 2S. De peculio ejus qui libertatem meruit. 24. De senatus- consulto Olaudiano tollendo. 25. De nudo ex jure Quiritium tollendo. 26. De usucapione pro emptore vel transactione. 27. De usucapione pro donato. 28. De usucapione pro dote. 29. De Tisucapione pro berede. 30. Communia de usuca- pionibus. 31. De usucapione transformanda et de sublata differentia rerum manoipi et nee manoipi. 32. De adquirenda et retinenda possessione. 33. De pro3soriptione longi temporis decern vel viginti annorum. 34. In quibus causis cessat longi temporis praescriptio. 35. Quibus non obiciatur longi temporis preescriptio. 36. Adversus ereditorem. 37. De quadriennii praescriptione. 38. Ne rei domiuicae vel templorum vindicatio temporis exceptione submoveatur. 39. De praescriptione 30 vel 40 annorum. 40. De annali exceptione Italici contractus tollenda et de diversis temporibus et exceptionibus et praescrip- tionibus et interruptionibus earum. 41. De adluvionibus et paludibus et de pascuis ad alium statum translatis. 42. De sententiis praefectorum praetorio. 43. Quomodo et quando judex sententiam proferre debet praesentibus partibus vel una absente. 44. De sententiis ex periculo recitandis. 45. De sententiis et interlocutionibus omnium judieum. 46. De sen- tentia, quae sine certa quantitate prolata est. 47. De sententiis, 172 OUTLINE OF ROMAN HISTORY. quse pro eo quod interest proferuntur. 48. Si non a competenti JTidice judieatum esse dicatur. 49. De poena judicis, qui male judicavit, vel ejus, qui judicem vel adversarium corrumpere ouravit. 50. Sententiam rescindi non posse. 51. De fructibus et litis expensis. 52. De re judicata. 53. De executione rei judicatse. 54. De usuris rei judieatse. 55. Si pluxes una sententia condemnati sunt. 56. Uuibus res judicata non nocet. 57. Oomminationes epistulas programmata subscriptiones auctori- tatem rei judicatse non habere. 58. Si ex falsis instrumentis vel testimoniis judieatum erit. 59. De confessis. 60. Inter alios acta vel judicata aliis non nocere. 61. De relationibus. 62. De appellationibus et consultationibus. 63. De temporibus et re- parationibus appellationum seu consultationum. 64. Quando proTooare necesse non est. 65. Quorum appellationes non re- cipiantur. 66. Si pendente appellatione mors intervenerit. 67. De his qui per metum judicis non appellaverunt. 68. Si imus ex pluribus appellaverit. 69. Si de momentaria posses- sione fuerit appellatum. 70. Ne lieeat in una eademque causa tertio provocare vel post duas sententias judicum, quas definitio prsefectorum roboraverit, eas retractare. 71. Qui bonis eedere possunt. 72. De bonis auctoritate judicis possidendis seu venumdandis et de separationibus. 73. De privilegio fisci. 74. De privilegio dotis. 75. De revooandis his quse per fraudem alienata sunt. Liber 8. — Tit. 1. De intefdictis. 2. Quorum bonorum. 3. Quod legatorum. 4. Dnc^e vi. 5. Si per vim vel alio modo absentis perturbata sit possessio. 6. Dti possidetis. 7. De tabulis exhibendis. 8. De liberis exhibendis seu de ducendis et de homine libero exhibendo. 9. De precario et de Salviano interdioto. 10. De sedificiis privatis. 11. De operibus pubhcis. 12. De ratiociniis operum publicorum et de patribus civitatum. 13. De pignoribus. 14. In quibus causis pignus tacite contra- hitur. 15. Si aliena res pignori data sit. 16. Quse res pignori obligari possunt vel non et qualiter pignus' contrahatur- 17. Qui potiores in pignore habeantur. 18. De his qui in priorum creditorum locum suecedunt. 19. Si antiquior creditor pignus vendiderit. 20. Si communis res pignorata sit. 21. De THE ROMAN EMPIRE. 173 prsetorio pignore-et ut in aotionibus etiam debitorum missio -prsetorii pignoris prooedat. 22. Si in causa judicati pignus captum sit. 23. Si pignus pignori datum sit. 24. De partu pignoris et omni causa. 25. De remissione pignoris. 26. Etiam ob obirographariam peouniam pignus teneri. 27. De distractione pignorum. 28. Debitorem venditionem pignorum impedire non posse, 29. Si vendito pignore agatur. 30. De luitione pignoris. 31. Si unus ex pluribus beredibus oreditoris vel debi- toris partem suam debiti solverit vel acceperit. 32. Si pignoris conventionem numeratio secuta non sit. 33. De jure dominii impetrando. 34. De faotis pignorum et de commissoria lege in pignoribus rescindenda. 35. De exceptionibus sive praescrip- tionibus. 36. De Htigiosis. 37. De contrabenda et commit- tenda stipulatione. 38. De inutilibus stipulationibus. 39. De duobus reis stipulandi et duobus reis promittendi. 40. De fldejussoribus et mandatoribus. 41. De noTationibus et dele- gationibus. 42. De solutionibus et liberationibus. 43. De acceptQationibus. 44. De evictionibus. 45. Creditorem evic- tionem non debere. 46. De patria potestate. 47. De adop- tionibus. 48. De emancipationibus liberorum. 49. De ingratis liberis. 50. De postliminio et de redemptis ab bostibus. 51. De infantibus expositis Kberis et servis et de bis qui san- guinolentos emptos vel nutriendos acceperunt. 52. Quae sit longa consuetudo. 53. De donationibus. 54. De donationibus quse sub modo vel condicione vel ex certo tempore conficiuntur. 55. De revooandis donationibus. 56. De mortis causa dona- tionibus. 57. De infirmandis poenis coelibatus et orbitatis et decimariis sublatis. 58. De jure liberorum. liber 9. — Tit. 1. Qui accusare non possunt. 2. De aceusa- tionibus et inscriptionibus. 3. De exbibendis vel transmit- tendis reis. 4. De custodia reorum. 5. De privatis carceribus inhibendis. 6. Si reus vel accusator mortuus fuerit. 7. 'Si quis imperatori maledixerit. 8. Ad legem Juliam majestatis. 9. Ad legem Juliam de adulteriis et de stupro. 10. Si quis eam cujus tutor fuerit corruperit. 11. De muHeribus quse servis propriis se junxerunt. 12. Ad legem Juliam de vi publica seu privata. 13. De raptu virginum seu viduarum neo non sanctimonialium, 14, De emendatione servorum. 174 OUTLINE OF ROMAN HISTORY. 15. De emendatione propmquorum. 16. Ad legem Oomeliam" de sicariis. 17. De his qui parentes vel' liberos occidenint. 18. De maleficis et mathematiois et ceteris similiTDUs. 19. De sepulchre Tiolato. 20. Ad legem Fabiam. 21. Ad legem YiselUam. 22. Ad legem Oomeliam de falsis. 23. De his qui sibi adseribunt in testamento. 24. De falsa moneta. 25. De mutatione nominis. 26. Ad legem Juliam de ambitu. 27. Ad legem Juliam repetundarum. 28. De crimine peculatus. 29. De crimine sacrilegii. 30. De seditiosis et his qui plebem audent contra publicam qiiietem colligere. 31. Q,uando civilis actio criminali prsejudicet et an utraque ab eodem exeroeri potest. 32. De crimine expilatEe hereditatis. 33. Vi bonorum rapto- rum. 34. De crimine stellionatus. 35. De injuriis. 36. De famosis libellis. 37. De abigeis. 38. De nili aggerlbus non rumpendis. 39. De his qui latrones Tel in aliis criminibus reos occultaverint. 40. De requirendis. 41. De qusestionibus. 42. De abolitionibus. 43. De generali abolitione. 44. Dfc intra certum tempus criminalis qusestio terminetur. 45. Ad Senatusconsultum Turpillianum. 46. De calumniatoribus. 47. De poenis. 48. Ne sine jussu principis certis judicibus liceat confiscare. 49. De bonis proscriptorum sen damnatorum. 60. De bonis mortem sibi consciscentium. 51. De sententiam passis et restitutis. Liber 10. — Tit. 1. De jure fisci. 2. De conveniendis fisci debitoribus. 3. De fide et jure hastse fiscalis et de adjec- tionibus. 4. De venditione rerum fiscalium cum privatis com- munium, 5. Ne fiscus rem quam vendidit evincat. 6. De his qui ex publiois rationibus mutuam pecuniam acceperunt. 7. Poenis 'fiscalibus creditores prseferri. 8. De fiscalibus usuris. 9. De sententiis adversus fiscum latis retractandis. 10. De" bonis vaoantibus et de ineorporatione. 11. De delatoribus. 12. De petitionibus bonorum sublatis. 13. De his qui se deferunt. 14. Si liberalitatis imperiaHs socius sine herede defecerit. 15. De thesauris. 16. De annona et tributis. 17. De indiotionibus. 18. De superlndicto. 19. De exactioni- bus tributorum. 20. De superexactionibus. 21. De capiendis et distrahendis pignoribus tributorum causa. 22. De apochis THE JBOMAN EMPIRE. 175 putlicis efc desoriptionibus ourialium. 23. De canone largitio- nalium titulorum. .24. Ne operte a oollatoribus exigantur. 25. De immunitate nemini oonoedenda. 26. De conditis in publiois borreis. 27. lit nemini lioeat in ooemptione speoierum se excusare et de munere sitonise. 28. De coUatione donatorum Tel relevatorum aut translatorum sen adseratorum. 29. De collatione seris. 30. De digeussoribus. 31 32. De deourionibus et filiis eorum et qui decuriones babentur quibus modis a fortuna curiae liberentur. 33. Si libertus aut servus ad deourionatum adspiraverit. 34. De prsediis eurialium sine deereto non alienandis. 35. Quando et quibus debetur quarta pars ex bonis decurionum et de modo distributionis eorum. 86. De imponenda lucrativus descriptione. 37. De prsebendo salario. 38. Si curiabs relicta civitate rus babitare maluerit. 39. De municipibus et originariis. 40. De incoHs et ubi quis domicHium babere videtur et de bis qui studiorum causa in alia civitate degunt. 41. De bonoribus et muneribus non continu- andis inter patrem et filium et de intervallis. 42. De mune- ribus patrimoniorum. 43. Quemadmodum ciTilia munera indicuntur. 44. De bis qui sponte munera susceperunt. 45. De bis qui a prineipe vacationem acceperunt. 46. De vacatione muneris'. 47. De decretis decurionum super immu- nitate quibusdam concedenda. 48. De excusationibus mune- rum. 49. De quibus muneribus et praestationibus nemini Heeat se excusare. 50. Qui aetate se excusant. 51. Quimorbo. 52. De bis qui numero liberorum vel paupertate excusationem meruerunt. 53. De professoribus et medicis. 54. De atbletis. 55. De his qui non impletis stipendiis sacramento soluti sunt. 56. Quibus muneribus excusantur ii, qui post impletam militiam Tel adTOcationem per proTincias suis eommodis Taoantes com- morantur, et de privilegiis eorum. 57. De conductoribus Tecti- galium fisci. 58. De libertinis. 59. De infamibus. 60. De reis postulatis. 61. De bis qui in exsiUum dati vel ordine moti sunt. 62. De filiis familias et quemadmodum pater pro bis teneatur. 63. De periculo successorum parentis. 64. De muUeribus in quo loco munera sexui congruentia et bonores agnoscant. 65. De legationibus. 66. De excusationibus arti- fieum. 67. De potioribus ad munera nominandis. 68. Si 176 OUTLINE OF KOMAN HISTORY. propter inimicitias creatio facta sit. 69. De sumptuiim recu- peratione. 70. Si post creationem quis decesserit. 71. De tabulariis soribis logographis et censuaKbus. 72. De suscep- toribus preepositis et arcariis. 73. De ponderatoribus et auri illatione. 74. De auri publici prosecutoribus. 75. De his quae ex publica coUatione illata sunt non usurpandis. 76. De auro coronario. 77. De irenarchis. 78. De argenti pretio quod tbesauris infertur. Liber 11. — Tit. 1. Detollenda lustralis auri coUatione. 2. De navieulariis seu naucleris publicas species transportantibus. 3. De prssdiis naviculariorum. 4. De navibus non excusandis. 6. Ne quid oneri publico imponatur. 6. De naufragiis. 7. De metallariis et metallis et procuratoribus metaUorum. 8. De murilegulis et gynseciaxiis et procuratoribus gyneecii et de monetariis et basta- gariis. 9. De vestibus holoveris et auratis et de intinctione sacri muricis. 10. De fabricensibus. 11. De -veteris numismatis potestate. 12. NuUi licere in frenis et equestribus sellis et in balteis margaritas et smaragdos et byacintbos aptare, et de artificibus palatinis. 13. De classicis. 14. De decuriis ujbis Eiomse. 15. De privilegiis corporatorum urbis Eomse. 16. De pistoribus. 17. De suariis et susceptoribus vini et ceteris cor- poratis. 18. De eollegiatis et chartopratis et nummulariis. 19. De studiis liberaUbus urbis Eiomse et Constantinopolitanse. 20. De honoratorum vebiculis. 21. De pririlegiis urbis Con- stantinopolitanse. 22. De metropoli Beryto. 23. De eanone frumentario urbis Eomse. 24. De frumento urbis Constantino- politanse. 25. De annonis civilibus. 26. De mendicantibus validis. 27. De nautis Tiberinis. 28. De frumento Alexan- drine. 29. De Alexandrise pnmatibus. 30. De jure rei pub- licBB. 31. De administratione rerum publicarum. 32. De vendendis rebus civitatis. 33. De debitoribus civitatum. 34. De perieulo nominatorum. 35. De periculo eorum qui pro magistratibus intervenerunt. 36. Quo quisque ordine con- veniatur. 37. Ne quis Kber invitus actum rei pubHcse gerere cogatur. 38. Injunoti muneris sumptus ad omnes collegas pertinere. 39. De bis qui ex officio quod administraverunt conTeniuutur. 40. De solutionibus et liberationibus debitorum THE ROMAN EMPIRE. , 177 omtatis. 41. De spectaculis efc scEeniois et lenonibus. 42. De expensis publioorum ludorum. 43. De aquseductu. 44. De gladiatoribus penitus toUendis. 45. De venatione ferarum. 46. De maiuma. 47. TJt armorum usus insoio principe inter- dictus sit. 48. De agricolis censitis vel colonis. 49. De capi-i tatione ciYium censibus eximenda. 50. In quibus causis coloni censiti dominos accusare possunt. 51. De colonis Palsestinis. 52. De colonis Thracensibus. 53. De colonis Illyricianis. 54. Ut nemo ad sumn patrocinium suscij)iat vicos Tel rusticanos eorum. 55. Ut rusticani ad nulltim obsequium deyocentur. 56. Non licere metrooomise habita- toribns looa sua ad extraneum transferre. -67. TJt nuUus ex vicanis pro alienis debitis vicanorum teneatur. 58. De censibus et censitoribus et persequatoribus et inspectoribus. 69. De omni agro deserto et quando steriles fertilibus imponuntur. 60. De ' fundis limitropbis et terns et paludibus et pascuis limitaneis vel castellorum. 61. De pascuis publicis et privatis. 62. De fundis patrimoniaUbus et saltuensibus et emphyteuticis et eorum conduetoribus. 63. De mancipiis et colonis patrimonialium et salsuensium et empbyteuticariorum fundorum. 64. De fugitivis colonis patrimonialibus et empbyteuticis et saltuensibus. 65. De eollatione fundorum patrimonialium et empbyteuticorum. 66. De fundis rei privatse et saltibus divinse domus. 67. De fundis et saltibus rei dominicse. 68. De agricolis et mancipiis dominicis vel fiscalibus sive rei privatse. 69. De prsediis Tamiacis et de bis qui ex colonis dominicis aliisque liberse condicionis procreantur. 70. De diversis prsediis urbanis et rusticis templorum et civitatum et omni reditu civili. 71. De locatione prsediorum civilium vel fiscaUum sive templorum sive rei privatEe vel dominicse. 72. De conduetoribus et procuratoribus sive actoribus prsediorum fiscalium et domus Augustse. 73. Quibus ad conductionem prsediorum iiscalium accedere non licet. 74. De eollatione fundorum fiscalium vel rei privatse vel dominicse vel civitatum vel templorum. 75. De privilegiis domus Augustse vel rei privatse et quarumcollationumexcusationemhabent. 76. De grege dominico. 77. De palatiis et domibus dominicis. 78. De cupressis ex luco Dapbnensi velPerseis per^gyptum non excidendis vel vendendis. 178 OUTLINE OF ROMAN HISTORY. Liber 12.— Tit. 1. De dignitatibus. 2. De praetoribus et honore prseturtB et gleba et folli et septem solidorum funotione sublata. 3. De consulibus et non spargendis ab bis pecuniis et de prsefeotis et magistris militum et patrioiis. 4. De prsefectis preetorio sive urbis et magistris militum in dignitatibus exse- quandis. 5. De prsepositis saori oubiculi et de omnibus cubi- culariis et privHegiis eorum. 6. De qusestoribus magistris ofSciorum comitibus saorarum largitionum et rei privatse. 7. De primicerio et secundocerio et notariis. 8. TJt dignitatum ordo servetur. 9. De magistris scriaiorum. 10. De comitibus consistorianis. 11. De comitibus et tribunis scbolarum. 12. De comitibus rei militaris. 13. De comitibus et archiatris sacri palatii. 14. De comitibus qui provincias regunt. 15. De professoribus qui in urbe OonstantinOpolitana docentes ex lege meruerint comitivam. 16. De decurionibus et silentiariis. 17. De domesticis et protectoribus. 18. De prsepositis labaru. 19." De proximis sacrorum scriniorum ceterisque qui in sacris scriniis militant. 20. De agentibus in rebus. 21. De principibus agentum ia rebus. 22. De ouriosis. 23. De palatinis sacrarum largitionum et rerum privatarum. 24. De stratoribus. 25. De castrensianis et ministerianis. 26. De canis. 27. De mensoribus. 28. De privilegiis eorum qui in sacro palatio militant. 29. De privilegiis scbolarum. 30. De castrensi omnium palatinorum peculio. 31. De equestri dignitate. 32. De perfectissimatus dignitate. 33. Qui militare possunt vel non et de servis ad militiam vel dignitatem adspirantibus, et ut nemo duplici militia vel dignitate et militia simul utatur. 34. Negotiatores ne militent. 35. De re mili- tari. 36. De castrensi peculio militum et prsefeotianorum. 37. De erogatione militaris annonse. 38. De excoctione et translatione militarium annonarum. 39. De militari veste. 40. De metatis et epidemeticis. 41. De salgamo bospitibus non prsebendo. 42. De commeatu. 43. De tironibus. 44. De litorum et itiaerum custodia. 45. De desertoribus et occultatoribus eorum. 46. De veteranis. 47. De filiis offi- cialium militarium qui in bello moriuntur. 48 De oblatione votorum. 49. De numerariis aetuariis et cbartulariis et adjutori- bus scriniariis et exoeptoribus sedis excelsse ceterorumque judi- THE ROMAN EMPIRE. 179 cum tarn civilium quam militarium. 50. De cursu publico angariis et parangariis. 51. De traetoriis et stativis. 52. De apparitoribus prsef ectorum prsetorio et privilegiis eorum. 53. De apparitoribus prsef ecti urbis. 64. De apparitoribus magistrorum mUitum et privilegiis eorum. 55. De apparitoribus proconsulis et legati. 56. De apparitoribus comitis orientis. 57. De cohortalibus principibus cornioulariis et primipilaribus. 58. De apparitoribus prsefeoti annonae. 59. De diversis officiis et apparitoribus judicum et probatoriis eorum. 60. De exsecutori- Tdus et exactoribus. 61. De lucris advocatorum et concussionibus offioiorum sive apparitorum. 62. De primipilo. 63. Publicse Isetitise vel consulum nuntiatores vel insinuatores constitutionum et aliarum saorarum vel judicialium litterarum ex desoriptione vel ab invitis ne quid aocipiant immodioum. "ToTribonian. " After the code of the imperial constitutions which we have published in our name, we have resolved to make a complete revision of the whole civil law, and of all Roman jurisprudence, by collecting together in a single code the dispersed volumes of so many jurists." " § 3. We have entrusted you with the o£&ce of choosing for this work the most skilful professors, the greatest advocates; and accepting those you have presented to us, we order them to perform that work, but under youx direction. " § 4. Choose and correct all that has been written by the jurists whom the emperors authorized to interpret the laws {consoriben- danim interpretandarumque kgum). But, as others have also written books of law, which have neither been recognised as texts nor in practice, we do not desire to have them incorporated in your collection. " § 5. From this collection we have determined to draw up a work of the utmost perfection to be sacred as a temple of justice, to be in fifty books, -divided by titles according to the order observed in our code, or in imitation of the edictum perpetuum, as you may think best. ' In these fifty books let all the ancient laws, thrown into confusion during the course of nearly fourteen n2 180 OUTLINE OF KOMAN HISTOKY. hundred years, be expurgated, and surrounded, as it were, by a rampart, beyond which there shall be nothing more: equal authority being given to all jurists, and no preference observed for one above another." (This is supposed to be an allusion to the preponderance which the lex de responds prudentum gave Papinian in case of diEEerence.) " § 6. Do not set down one opinion as the best because a majority has adopted it ; one alone, and the least, might by chance, on a certain point, surpass all the others. Do not absolutely reject the notes of Ulpian, of Paul, and of Maroian, on Papinian, which were formerly denuded of all authority on account of the honour paid to the most illustrious Papinian" (this is an allusion to the constitution of Constantiae, and to the lex de responsis, which had proscribed these notes) ; " but do not hesitate to take and lay down as law whatever you shall think fit. The decisions of all the authors you quote will have authority just as if they emanated from the imperial con- stitutions, and were given forth by our divine breath {et nostra divino fuerant ore profusa). " § 7. Eliminate everything which may appear to you out of place, superfluous, or bad ; the corrections you make, even con- trary to the ancient laws, will have legal force ; and let no one dare, by making comparisons of ancient manuscripts, to impute any imperfection to anything which you shall have written." (This is an allusion to the same enactment, which required a collation of quoted passages with the old manuscripts.) " The sanction which we give it is not divided between these or those fragments of the founders of the laws, but comes entirely from us, entirely from the choice we make. How should antiquity abrogate any of our laws ? " §§ 8, 9, and 10. Do not leave any antinomy " (the name in Greek for a contradiction between two laws) "or any repetitions; avoid as much as possible inserting anew the imperial constitu- tions contained in our code; put aside aU things that have fallen into disuse. " § 11. Everything will be ruled by these two codes — the code of the constitutions, and that, to be drawn up, of the revised laws ; and if we promulgate a third, in the shape of Institutes, THE ROMAN EMri-RE. 181 by that code also, in order that learners, after being grounded in principles, may proceed to higher and more abstruse studies. "§ 12. This work will bear the name of ^Digest' or 'Pandects.' We forbid jurists to add commentaries, and to obscure it with their prolix observations, as was done in the case of the ancient laws. It will only be allowed to add under each article a summary indicating its contents, which is called TrafiariTXa, without interpretation. " § 13. We forbid, in writing this code, the use of signs or abbreviations, confusing enigmas, sources of numerous antinomies. The succession of letters must be used everywhere, even to in- dicate the numbers of the articles, or what not." (This injimc- tion was addressed to the copyists, who were much given to the use of signs or abbreviations; it is repeated in other constitutions, with penalties attached.) " Given the 18th of the Kal. of January, a.d. 531 " (15th December, A.D. 630). THE TITLES AND SUB- TITLES OP THE DIGEST OE PANDECTS. liber 1. — Tit. 1. De justitia et jure. 2. De origine juris et omnium magistratuum et successione prudentum. 3. De legibus senatusque consultis et longa consuetudine. 4. De constitu- tionibus principum. 5. De statu hominum. 6. De his, qui sui vel aheni juris sunt. 7. De adoptionibus et emancipationibus et aliis modis, quibus potestas solvitur. 8. De divisione rerum et qualitate. 9. De senatoribus. 10. De officio consulis. 11. De officio prsefecti prsetorio. 12. De officio prsefecti urbi. 13. De officio qusestoris. 14. De, officio prsetorum. 15. De officio prcefecti vigilum. 16. De officio proconsulis et legati. 17. De officio prsefeeti Augustalis. 18. De officio prsesidis. 19. De officio procuratoris C^saris vel rationalis. 20. De officio juridici. 21. De officio ejus, cui mandata est jurisdictio, 22. De officio assessorum. 182 OXJTLISE OF ROMAN HTSTORT. Liber 2. — Tit. 1. De jurisdictione. 2. Quod quisque juris ia alteram statuerit, ut ipse eodem jure utatur. 3. Si quis jus dicenti non ottemperaverit. 4. De in jus vocando. 5. Si quis iu jus Tocatus non ierit, sive quis eum vooaverit, quern ex edicto non debuerit. 6. In jus vocati ut eant, aut satis vel cautum dent. 7. Ne quis eum, qui in ju^vocabitnr, vi eximat. 8. Qui satisdare cogantur, vel jurato promittant, vel suae promissioni committantuT. 9. Si ex noxaJi causa agatur, quemadmodnm cavetur. 10. De eo, per quem factum erit, quo minus quis in judicio sistat. 11. Si quis cautionibus in judicio sistendi causa factis non obtemperaverit. 12. De feriis et dilationibus et diversis temporibus. 13. De edendo. 14. De pactis. 15. De transactionibus. Liber 3. — Tit. 1. De postulando. 2. De his, qui notantur infamia. 3. De procuratoiibus et defensoribus. 4. Quod cujuscumque universitatis nomine, vel contra eam agatur. 5. De negotiis gestis. 6. De calumniatoribus. Liber 4. — ^Tit. 1. De in integrum restitationibus. 2. Quod metus causa gestum erit. 3. De dolo malo. 4. De minoribus viginti quinque annis. 5. Decapiteminutis. 6. Ex quibus causis ma j ores viginti quinque annis in integrum restituuntur. 7. De alienatione judicii mutandi causa facta. 8. De receptis, qui arbitrium receperint, ut sententiam dicant. 9. Xautae, caupones, stabularii ut recepta restituant. Liber 5. — ^Tit. 1. De judiciis et ubi quisque agere vel con- veniri debeat. 2. De inoffieioso testamento. 3. De bereditatis petitione. 4. Si pars bereditatis petatur. 5. D^possessoria bere- ditatis petitione. 6. De fideicommissaria bereditatis petitione. Liber 6. — ^Tit. 1. De rei vindicatione. 2. De publiciana in rem actione. 3. Si ager vectigalis, id est empbyteuticarius, petatur. Liber 7. — Tit. 1. De usu fructu et quemadmodnm quis utatur fruatur. 2. De usu fructu adcrescendo. 3. Quando dies usus THK ROMAN EMPIRE. 183 fnictus legati cedat. 4. Quibus modis ususfructus vel usus amit- titur. 5. De usu fnictu earum rerum, quas usu consumuntur vel minuuntur. 6. Si ususfructus petatur, vel ad alium pertinere negetur. 7. De operis servorum. 8. De usu et habitatione. 9. UsuJruotuarius quemadmodum caveat. Liber 8. — Tit. 1. De servitutibus. 2. De servitutibus prse- diorum urbanorum. 3. De servitutibus prsediorum rusticorum. 4. Gommunia prsediorum tarn urbanorum quam rusticorum. 5. Si servitus vindicetur, vel ad alium pertinere negetur. 6. Quemadmodum servitutes amittuntur. Liber 9. — Tit. 1. Si quadrupes pauperiem fecisse dicatur. 2. Ad legem Aquiliam. 3. De his, qui efEuderint vel dejeoerint. 4. De noxalibus actionibus. Liber 10. — Tit. 1. Finium regundorum. 2. Familise ercis- cundse. 3. Communi dividundo. 4. Ad exhibendum. Liber 11. — Tit. 1. De interrogationibus in jure faoiendis et interrogatoriis actionibus. 2. De quibus rebus ad eundem judicem eatur. 3. De servo corrupto. 4. De fugitivis. 5. De aleatoribus. 6. Si mensor falsum modum dixerit, 7. De re- ligiosis et sumptibus funerum, et ut funus duoere liceat. 8. De mortuo inferendo et sepulcro sedificando. Liber 12. — Tit. 1. De rebus creditis, si certum petetur et de condictione. 2. De jurejurando sive voluntario, sive necessario, sive judiciali. 3. De in litem jurando. 4. De condictione causa data causa non secuta. 5. De condictione ob turpem vel in- justam causam. 6. De condictione indebiti. 7. De condictione sine causa. Liber 13. — Tit. 1. De condictione furtiva. 2. De condictione ex lege. 3. De condictione tritioiaria. 4. De eo, quod certo loco dari oportet. 5. De pecunia coustituta. 6. Commodati, vel contra. 7. De pigneraticia actione, vel contra. 184 OUTLINE OF ROMAN HISTOEY. liber 14.— Tit. 1. De exercitoria aetione. 2. De lege Rhodia de jactu. 3. De institoria aetione. 4. De tributoria aetione. 5. Quod cum eo, qui iii aHena potestate est, negotium gestum esse dicetur. 6. De senatusconsulto Macedoniano. Liber 15. — Tit. 1. De peculio.- 2. duando de peculio actio annalis est. 3. De in rem Yerso. 4. Quod jussu. Liber 16. — Tit. 1. Ad senatusconsultum Velleianum. 2. De compensationibus. 3. Depositi vel contra. Liber 17. — Tit. 1. Mandati ycI contra. 2. Pro socio. Liber 18. — Tit. 1. De contrabenda emtione, et de pactis inter emtorem et Yenditorem compositis, et qu£e res venire non pos- suht. 2. De in diem addictione. 3. De lege commissoria. 4. De bereditate vel aetione vendita. 6. De rescindenda vendi- tione, et quando licet ab emtione discedere. 6. De periculo et commodo rei Yenditse. 7. De servis exportandis, vel si ita mancipium venierit, ut manumittatur, vel contra. Liber 19. — Tit. 1. De actionibus emti et venditi. 2. Locati, conducti. 3. De sestimatoria. 4. De rerum permutatione. 5. De prsescriptis verbis et in factum actionibus. Liber 20. — Tit. 1. De pignoribus et bypotbecis,, et quaHter ea contrabantur, et de paetis eorum. 2. In quibus causis pignus, vel bypotbeca tacite contrabitur. 3. Quae res pignori vel bypotbecse datse obligari non possunt. 4. Qui potiores in pignore, vel bypotbeca babeanttir, et de bis, qui ia priorum creditorum locum succedunt. 5. De distractions pignorum et bypotbecarum. 6. Quibus modis pignus vel bypotbeca sol- vitur. Liber 21.— Tit. 1. De a3dilieio edicto et redbibitione, et quanti minoris. 2. De evictionibus et duplco stipulations. 3. De exoeptione rei venditas et traditas. THE ROMAN EMPIEE. ] 85 Liber 22. — Tit. 1. De usuris, etfruotibus, et causis, et omnibus aocessionibus, et mora. 2. De nautico foenore. 3. De pro- bationibus et prsesumptionibus. 4. De fide instrumentorum et amissione eorum. 5. De testibus. 6. De juris et facti igno- rantia. Liber 23. — Tit. 1. De sponsalibus. 2. De ritu nuptiarum. 3. De jure dotium. 4. De paotis dotalibus. 5. De fundo dotali. Liber 24. — Tit. 1. De donationibus inter -virum et uxorem. 2. De divortiis et repudiis. 3. Soluto matrimonio dos quem- admodum petatur. Liber 25. — Tit. 1. De impensis in res dotales factis. 2. De actione rerum amotarum. 3. De agnoscendis et alendis liberis, vel parentibus, Tel patronis, vel libertis. 4. De inspiciendo ventre eustodiendoque partu. 5. Si ventris nomine muliere in possessionem missa eadem possessio dolo malo ad alium translata esse dioatur. 6. Si mulier ventris nomine in possessione caluna- nise causa esse dicetur. 7. De concubinis. Liber 26. — Tit. 1. De tutelis. 2. De testamentaria tutela. 3. De confirmando tutore vel curatore. 4. De legitimis tutori- bus. 5. De tutoribus et curatoribus datis ab bis, qui jus dandi babent, et qui, et in quibus eausis, speoialiter dari possunt. 6. Qui petant tutores vel euratores, et ubi petantur. 7. De ad- ministratione et periculo tutorum et curatorum, qui gesserint, vel non, et de agentibus, vel conveniendis uno vel pluribus. 8. De auctoritate et consensu tutorum et curatorum. 9. Quando ex facto tutoris vel curatoris minores agere vel oonveniri possunt. 10. De suspectis tutoribus et curatoribus. Liber 27. — Tit. 1. De excusationibus. 2. Ubi pupillus edu- cari vel morari debeat, et de alimentis et praestandis. 3. De tutelse et rationibus distrabendis, et utili curationis causa actione. 4.- De contraria tutelse et utili actione. 5. De eo, qui pro tutore prove curatore negotia gessit. 6. Quod falso tutore auctore 186 OUTLTNE OF ROMAN HISTORY. gestum esse dicatur. 7. De fidejussoribus, et nominatoribus, et heredibus tutonim et curatoruni. 8. De magistratibus con- veniendis. 9. De rebus eorum, qui sub tutela vel cura sunt, sine decreto non alienandis vel supponendis. 10. De curatori- bus furioso et aliis extra minores dandis. Liber 28. — Tit^ 1. Qui testamenta facere possunt, et quem- admodum testamenta fiant. 2. De liberis et postumis heredibus instituendis vel exberedandis. 3. De injusto, rupto, irrito facto testamento. 4. De his, quae in testamento delentur, iuducuntur, vel inscribuntur. 5. De heredibus instituendis. 6. De vulgari et pupiUari substitutione. 7. De conditionibus institutionum. 8. De jure deliberandi. Liber 29.^Tit. 1. De testamento militis. 2. De acquirenda vel amittenda hereditate. 3. Testamenta quemadmodum aperi- antur, inspiciantur et describantur. 4. Si quis omissa causa testamenti ab intestato, vel alio modo possideat hereditatem. 5. De senatusconsulto Silaniano et Olaudiano, quorum testa- menta ne aperiantur. 6. Si quis aliquem testari prohibuerit vel coegerit. 7. De jure codicillorum. Liber 30. — De legatis et fideicommissis. Liber 31. — De legatis et fideicommissis. Liber 32. — De legatis et fideicommissis. Liber 33. — Tit. 1. De annuls legatis, et fideicommissis. 2. De usu, et usufructu, et reditu, et habitatione, et operis per legatum vel fideicommissum datis. 3. De servitute legata. 4. De dote prselegata. 5. De optione vel eleotione legata. 6. Detritico, vino, vel oleo legato. 7. De instructo vel instrumento legato. 8. De peculio legato. 9. De penu legata. 10. De supellectile legata. Liber 34. — Tit. 1. De alimentis vel cibariis legatis. 2. De auro, argento, mundo, ornamentis, unguentis, veste vel vesti- THE ROMAN EMPIRE. 187 mentis, et statuis legatis. 3. De libertatione legata. 4. De adimeshdis vel transferendis legatis vel fideioommissis. 5. De rebus dubiis. 6. De his quae- poense oausa relinquuntur. 7. De regula Oatoniana. 8. De his quae pro non scriptis habentur. 9. De his, quse ut iadignis aufenintur. Liber 35. — Tit. 1. De conditionibus, et demonstrationibus, et causis, et modis eorum, quse in testamento scribuntur. 2. Ad legem Falcidiam. liber 36. — Tit. 1. — Ad senatusoonsultum Trebellianum. 2. Quando dies legatorum vel fideicommissorum cedat. 3. Ut legatorum sen fideicommissorum servandorum causa caveatur. 4. Ut in possessione legatorum vel ■ fideicommissorum servan- dorum causa esse liceat. Liber 37. — Tit. 1. De bonorum possessionibus. 2. Si tabulse testamenti extabunt. 3. De bonorum possessione furioso, in- fanti, muto, surdo, cseco competente. 4. De bonorum posses- sione contra tabulas. 6. De legatis prsestandis contra tabulas bonorum possessione petita. 6. De coUatione. 7. De dotis coUatione. 8. De conjungendis cum emancipato liberis ejus. 9. De ventre in possessionem mittendo et curatore ejus. 10. De Carboniano edicto. 11. De bonorum possessionibus secundum tabulas. 12. Si a parente quis manumissus sit. 13. De bonorum possessione ex testamento mOitis. 14. De jure patro- natus. 15. De obsequiis parentibus et patronis prsestandis. Liber 38. — Tit. 1. De operis libertorum. 2. De bonis liber- torum. 3. De libertis universitatum. 4. De assignandis Mbertis. 5. Si quid in fraudem patroni factum sit. 6. Si tabulse testamenti nuUse extabunt, unde liberi. 7. Unde legi- timi. 8. Unde cognati. 9. De successorio edicto. 10. De gradibus, et affinibus, et nominibus eorum. 11. Unde vir et uxor. 12. De veteranorum et militum successione. 13. Quibus non competit bonorum possessio. , 14. Ut ex legibus senatusve cousultis bonorum possessio detur. 15. Quis ordo in posses- J88 OUTLINE OF ROMAN HISTORY. sionibus servetiar. 16. De suis et legitimis heredibus. 17. Ad senatusconsultum Tertulliamiin et Orphitianum. Liber 39. — Tit. 1. De operis noyi nuntiatione. 2. De damno infecto et de sugrundis et protectiombus. 3. De aqua, et aqusB pluvice arcendse. 4. De pubHcanis et vectigalibus et commissis. 5. De donationibus. 6. De mortis causa donationibus, .at capionibus. Liber 40. — Tit. 1. De manumissionibus. 2. De manumissis vindicta. 3. De manumissioDibus, quae servis ad uniyersitatem pertinentibus imponuntur. 4. De manumissis testamento. 5. De fideicommissaiiis Hbertatibus. 6. De ademptione liber- tatis. 7. De statuliberis. 8. Qui sine manumissione ad Hber- tatem peryeniunt. 9. Qui et a quibus manumissi liberi non fiunt, et ad legem .^Eliam Sentiam. 10. De jure aureorum annulorum. 11. De natalibus restituendis. 12. De liberali causa. 13. Quibus ad Hbertatem proclamare non licet. 14. Si ingenuus esse dicetur. 15. Ne de statu defunctorum post quin- quennium quaeratur. 16. De coUusione detegenda. Liber 41. — Tit. 1. De acquirendo rerum dominio. 2. De acquirenda, yel amittenda possessione. 3. De usurpationibus et usucapionibus. 4. Pro emtore. 5. Pro herede, yel pro pos- sessore. 6. Pro donate. 7. Pro derelicto. 8. Pro legato. 9. Pro dote. 10. Pro suo. Liber 42. — Tit. 1. De re judicata, et de efEectu sententiarum, et de interlocutiouibus. 2. De confessis. 3. De cessione bonorum. 4. Quibus ex causis in possessionem eatur. 5. De rebus auctoritate judicis possidendis seu yendundis. 6. De separationibus. 7. De curatore bonis dando. 8. Quee in f raudem creditorum facta simt ut restituantur. Liber 43. — Tit. 1. De interdictis siye extraordinariis actioni- bus, qusB pro bis competunt. 2. Quorum bonorum. 3. Quod legatorum. 4. Ne yis fiat ei, qui in possessionem missus erit. 5. De tabulis exhibendis. 6. Ne quid in loco sacro fiat. 7. De THE ROMAN EMPIRE. 189 locis et itineribus publicis. 8. Ne quid in loco publico vel itinere fiat. 9. De loco publico fruendo. 10. De via publica, et si quid in ea factum esse dicatur. 11. De via publica, et itinere publico reficiendo. 12. De fluminibus, ne quid in flumine publico ripave ejus fiat, quo pejus navigetur. 13. Ne quid in flumine publico fiat, quo aliter aqua fluat, atque uti priore testate fluxit. 14. Ut in flumine publico navigare liceat. 15. De ripa munienda. 16. De vi, et de vi armata. 17. Uti possidetis. 18. De superficiebus. 19. De itinere actuque private. 20. De aqua quotidiana et eestiva. 21. De rivis. 22. De fonte. 23. De cloacis. 24. Quod vi aut clam. 25. De remissionibus. 26. De precario. 27. De arboribus ceedendis. 28. De glande legenda. 29. De homine libero exhibendo. 30. De Hberis exbibendis, item ducendis. 31. De utrubi. 32. De migrando. 33. De Salviano interdicto. Liber 44. — Tit. 1. De esceptionibus, prsescriptionibus et prse- judiciis. 2. De exceptione rei judicatse. 3. De diversis temporalibus prsescriptionibus, et de accessionibus possessionum. 4. De doli mali et metus exceptione. 5. Quarum rerum actio non datur. 6. De litigiosis. 7. De obligationibus et acti- onibus. Liber 45. — Tit. 1. Deverborum obligationibus. 2.Deduobus reis constituendis. 3. De stipulatione servorum. Liber 46.- — Tit. 1. De fidejussoribus et mandatoribus. 2. De novationibus et delegationibus. 3. De solutionibus et liberta- tionibus. 4. De acceptilatione. 5. De stipulationibus prsetoriis. 6. Eem pupilli vel adoleseentis salvam fore. 7. Judicatum solvi. 8. Hatam rem baberi et de ratihabitione. Liber 47. — Tit. 1. De privatis delictis. 2. De furtis. 3. De tigno juncto. 4. Si is, qui testamento liber esse jussus erit, post mortem domini ante aditam bereditatem surripuisse, aut corrupisse quid dicetur. 5. Furti adversus nautas, caupones, stabularios. 6. Si familia furtum fecisse dicetur. 7. Arborum 190 OUTLINE OF ROMAN HISTORY. furtim csesarum. 8. Vi bonorum raptonim, et de turba. 9. De ineendio, ruina, naufragio, rate nave expugnata. 10. De injmiis et famosis libellis. 11. De extraordinariis criminibus. 12. De sepulcro Tiolato. 13. De conoussione. 14. De abigeis. 15. De prEevaricatione. 16. De receptatoribus. 17. De fuxibus bal- neariis. 18. De effractoribus et ropi"ietas alone that we acquire through those whom we have in potestate, for through them we also acquire possessio, for whatever is in their possession is considered as being in ours, and consequently through them we may acquire Quiritarian title to property by tisucapio. § 90. Concerning those whom we have in manu or in mancipio, it may be said, that we can, through them, acquire i\ie pro2yrietas in the same way as through those whom we have in potestate ; but whether we can acquire possessio through them is doubtful, inasmuch as they themselves are not in our possessio. § 91. Concerning those slaves of whom we have merely the usufruct, it has been decided that the fruits of their labour, or of our own property in their charge, is ours, whereas anything of which they may become otherwise possessed belongs to their owners ; hence, if such a slave is instituted heir, or if a legacy be left him, the succession or legacy belongs to his owner. § 92. Again, concerning those who are bond, fide in our posses- sion, whether they be freemen or the slaves of another, the same may be said as has been said concerning the usufructuary. 246 OUTLINE OF KOMAN HISTORY. Anything acquired independently of us, or ours, belongs in the one case, i. e., when the man is free, to the man himself, — and in the other, to his master. § 93. But if the bond fide possessor of a slave has, by iisucapio, acquired Quiritarian ownership of him, he may' through him acquire in any way. A usufructjiarius cannot acquire hy iisu- capio, first, because he does not in fact possess, but merely has the right to use and enjoy ; secondly, because he knows that the slave is not his, but belongs to another. § 94. It is a matter of question whether we can possess and thus acquire by usucapio through a slave of whom we have merely the usufruct, inasmuch as we do not possess him. There is no doubt as to our being able to possess and thus acquire by usmapio through a slave who is bona fide in our possession. In both cases, we bear in mind the distinction we have already made, viz., between property acquired as the fruit of our own property, or the result of the slave's labour which belongs to us, and that acquired from any other source which does not. § 95. It apj)ears that it is impossible for us to acquire anything either through freemen who are neither subject to us nor bond, fide in our possession, or through the slave of another of whom we have neither the usufruct nor the legal possession ; hence the maxim, " No one can acquire anything but possession through a stranger. . . ." § 96. In conclusion, it is to be observed that nothing can be conveyed by cessio in jure to any one who is in pofestate, in manu, or in mancipio, inasmuch as such persons cannot acquire to their own use, a necessary consequence being that they cannot recover anything by vindicatio. X. Quibus Modis per Universitatem res adquirantur. % 97. What we have said as to the acquisition of individual things in general is sufficient for the moment. The discussion of legacies will be deferred to a more convenient place. We will now consider the methods by which we may acquire per tmiversiiatem. § 98. When we become the heir of any one, or obtain possession of the goods of a deceased by petitio hereditatis, or purchase the GAIUS — SECOND COMMENTAEY. 247 estate of an insolvent, or adrogate a person, or take a woman in manu as wife, tlie entire property of the individual becomes ours. § 99. Eirst, then, of inheritance, of which there are two kinds, viz., ex testamento and ab intestato. § 100. Concerning, then, inheritance ex testamento. XI. De Testanientis ordinandis. ■ § 101. There were originally two kinds of testaments, viz., those made ra the comitia convoked for that purpose, which were styled catatis comitiis — the comitia used to he convoked twice each year for the purpose of making testaments — and secondly, testaments made when an army was going into action, styled in procinctu. The word procinctus signifies an army under arms and ready for battle. The former, therefore, were made during peace and repose, the latter on the eve of battle. § 102. Subsequently, a third species of testament was intro- duced, styled per ces et libram, i. e., when one had not made a testament either calatis comitiis or in procinctu, but, apprehending sudden death, gave his familia, i.e., his patrimony, in mancipio to a friend, praying him after his decease to distribute it in the manner indicated by him : that species of testament was styled per ces et libram, because it was effected by mancipatio. § 103. The two former methods have fallen into disuse ; the last, i.e., per ms et libram, is that now in use. There is, how- ever, some difference between the old and the present practice per ces et libram. Formerly, the person styled the familice emptor, i. e., he to whom the testator manumitted, took the place of heir, and received from the testator his instructions as to the disposition of his estate ; now one person is appointed the testamentary heir, whose business it is to distribute the lega- cies, and another is made familice emptor, simply for the sake of form in imitation of the earlier practice. § 104. The ceremony is as follows : — The testator, as any other manumitter, secures the attendance of five witnesses — adult Roman citizens — and a libripens. He then, having abeady written his testament on tablets, mancipates his patrimony for the sake of form to one, the familice emptor, who says, " That 248 OUTLINE OF KOMAX HISTORY. you may make a testament valid by the public law, I declare to be ia my mandate, tutelage, and custody, your entire patrimony and fortune witb this brass," and some add, " and .with these scales." " I buy them." Then, striking the scales with the brass, he hands it to the testator as the purchase-money. The testator then, taking the tablets on which his testament is written, says, "As itis written on these tablets and in thi^wax, so do I give, bequeath, and testify, and so do you Quirifes bear me witness." This is what is styled nuncupatio, the meaning of nuncupare being to proclaim aloud, the testator by these general words being considered as having published the provisions of his testament. § 105. No one can be a witness who is in ^hepotestas of either fhe/amilice emptor' or the testator, for, as in imitation of the old • law, the transaction takes place between the testator and the familice emptor, who, as we have said, acquires the status of heir when he receives the estate of the testator in mancipio, the evi- dence of any member of the family {domesticum testimonmmy is inadmissible, it not being disinterested testimony. § 106. Consequently, if any one who is in his father's jjofeste is selected as ^q familice emptor, his father cannot be a witness ; nor can any one who is in the same potesias, e. g., his brother. When B, filiusfamilias makes a testament disposing of his castrense peciilium, after having obtained his discharge from service, he cannot rightly have either his father, or any one in the p)otestas of his father, as a witness. § 107. What we have said concerning the witness applies equally to the Ubripens, for he is also a witness. § 108. He, however, who is in ^q potestas of the hax or of a legatee, or the person in whose potedas the heir or legatee is, or he who is in the same potesias as either of them, may be the Ubriiiens, or other witness, inasmuch as the heir liimself or a legatee may be. It is, however, advisable that the hen-, or one in his potesias, or he in whose potesias the heir is, should not exercise this right when it can be avoided. XII. De Testamentis Militiim. § 109. Owing to the great inexperience of the military in GAIUS SECOND COMMENTARY. 249 testamentary matters, they have been exempted from the ordi- nary formalities by several imperial constitutions. Their testa- ments have been held valid where there has not been the requisite number of witnesses, where there has not been a sale of the patrimony, and where nuncupation has been omitted. § 110. Furthermore, they are permitted to make peregrini or Latini their heirs or legatees, whereas otherwise the peregrini, by a rule of the civil law, are incapable of inheriting or receiving a legacy, as are the Latini by the lex Junia. § 111. In like manner ccelihcs, who by the lex Julia are de- prived of the right of accepting an inheritance or a legacy, and the orhi, i. e., those who have no children, whom the lex Papia prohibits from taking more than the half .... XIII. Tedamenti Factio. § 112. But the senate, at the instance of the late Emperor Hadrian, as we stated above, also allowed women to make a testament, even though they had not entered into a coemptio, provided only they were above twelve years of age, and made it with the authorization of their tutm^ ; that is, the senate ruled that women not freed from tutela should so make their tes- taments. § 113. It therefore appears that for testamentary purposes females are in a better position than males, for a male under fourteen years of age cannot make a testament, even with the sanction of his tutoi; whereas a female who is twelve years of age may. § 114. When, therefore, the question arises as to whether a particular testament is valid, we first inquire whether the testa- tor had the tesfamenU factio ; if he had, then, whether he has conformed to the rviles of the civil law, always excepting soldiers, who, as we have said, on account of their great inexperience, are allowed to make their testaments as they wish and as best they can. XIV. Bonorum Possessio secundum Tahulas. § 115. In order, however, that a testament may be valid by the civil law, it is not suflBoient that there should be the sale of 250 OUTLINE OF ROMAN HISTORY. the patrimony, the requisite mimher of witnesses, and the nuncu- patio to which we have already alluded. § 116. Above all things it is necessary that the heir be instituted in solemn form, for otherwise the sale of the patri- mony, the assembling of witnesses, and the nuncicpatio of the testament are worthless. § 117. The following is the solemn form of institution : " Titius heres esto " (Let Titius be heir). At the present time the following is also held valid : " Titium Jieredem esse juheo " (I order that Titius be heir). The following has been disap- proved of by the authorities : " Titium heredem esse volo " (I wish Titius to be heir). The following have been rejected by the great majority : " heredem instituo " (I institute heir) and " heredem facio " (I make heir). § 118. Furthermore it must be observed that if a female, who is in tutelage, makes a testament, she must do so with the authority of her tutor, otherwise by the civil law her act is a nullity. § 119. The praetor, however, has promised that when a testa- ment is sealed with the seals of seven witnesses, the honorum possessio shall pass by the terms of the testament, provided always that there is no person to whom the inheritance would legally belong ab intestato, e.g., a brother by the same father, a father's brother, or a brother's son. The same rule prevails if for any other cause the testament is -invalid, e.g., if the familia has not been sold, or the testator has not pronounced the words of nuncupation. § 120. Assuming that there is a brother or paternal uncle, we have to inquire whether either is preferred to a testamentary heir. By a rescript of the Emperor Antoninus those who claim the goods of a deceased under a testament which is informal are permitted to avail themselves of the excepfio doli mali should mndicatio be brought by a person entitled ab intestato. § 121. There is no doubt that this provision applies to the testaments of males, equally with those of females, that are invalid by reason of want of sale of the familia or utterance of the nuncupative words; but does it apply also to testaments GAIUS SECOND COMMEKTAEY. 261 made by females without the authorization of their Mors ? Let us see. § 123. It is understood that we are not speaking of females who are in the tutela legitima of ascendants or patrons, but of those who have some other species of tutor, one who is compel- lable to grant his authorization. It is evident that an ascendant or patron cannot be ousted by a testament made without his authority. XV. De Exheredatione Liberorum. § 123. He "who has a son in his potestas should take care either to nominate him heir or in terms to disinherit him, because if he passes him over in silence his testament is void. Our masters {i.e., the Sabinians) are indeed of opinion that when the son has pre-deceased his father no one can take the inheritance by virtue of such a testament, inasmuch as the testament was inoperative ab initio. Those of the other school admit that if the son is living at the date of the death of his father, he succeeds ab intestato and excludes the person named as heir in the testament ; but they maintain that where the son pre-deeeases his father the testamentary heir may take the inheritance, inasmuch as the son does not claim it as against him, they being of opinion that the mere fact of passing over the son does not make the testament void ab initio. § 124. The fact of passing over any of the other childi'cn does not invalidate the testament. Those passed over are in fact regarded as accretions to those named. When sni heredes have been appointed, those passed over take equally with them; if strangers have been appointed, they take one-half : i.e., if any one has by name appointed three sons heirs, and has not mentioned his daughter, she takes one-fourth of the inheritance by the right of accretion, that being the portion she would have been entitled to ab intestato ; but if the testator has appointed as his heirs persons strangers to him, and has passed over a daughter, she by accretion succeeds to one-half of the inheritance. What has been said concerning a daughter applies equally to a grand- son, and all other descendants, male or female. § 125. But what is the actual position ? Although according 252 OUTLINE OF KOMAN HISTOKY. to what we have said the heirs nominated in the testament are only deprived of one moiety of the inheritance when a daughter has been passed over, yet as the prsetor secures to the descendants the bonorum possessio of the deceased, notwithstanding the terms of the testament, the extranei heredes (stranger heirs) are in fact excluded from the inheritance. § 126. The effect, therefore, of this doctrine of bonorum pos' sessio would be to place male and female cliildren on an equality. The Emperor Antoninus, however, not long since, by a rescript decided that females who are sum heredes shall not take more by bonorum possessio than they would be entitled to Jure adcrescendi. The same principle applies to females who have been emanci- pated, i. e., they are entitled by bonorum possessio to the share to which they would have been entitled Jure adcrescendi, had they been sum heredes. § 127. When a son is disinherited by his father, he must be disinherited nominatim (by name), for he cannot otherwise be disinherited. One is considered to be disinherited nominatim when he is disinherited as follows : — " Titius filius mens exMres esto " (let my son Titius be disinherited) ; or "Mlius meus exheres esto " (let my son be disinherited), without adding his proper name. § 128. Other males or any females may be disinherited either by name or collectively, e.(/., thus: — "Ceteri exheredes sunto" (let the others be disinherited). These words are commonly added after the institution of heirs : these, however, are only rules of the civil law- § 129. For the prsetor requires all descendants of the male sex, whether sons, grandsons, or great-grandsons, to be dis- inherited by name, and females to be disinherited collectively ; and if they are not so disinherited, he has promised them the bonorum possessio, notwithstanding the testament. § 130. Posthumous children must either be instituted heirs, or be disinherited. § 131. In one respect the condition of all is the same, viz., when mention of a posthumous child of either sex has been omitted, the testament is vaM ab initio, but by the agnation (conception, birth, or adoption) of a posthumous child it becomes GAIUS — SECOND COMMENTAKY. 253 void. If then the ■woman who is to give birth to the expected posthumous child miscarries, the heirs named take. § 132. Posthumous female children may be disinherited either by name or collectively. If, however, they are disin- herited collectively, something should be left them by way of legacy, in order that it may appear that they have not been imintentionally overlooked. It has been decided that to properly disinherit posthumous male children, e.g., a son, grandson, and so on, the following form should be adopted : — " Quicumqne milii filius genitiis fiierit exheres esto" (whatever son maybe bom to me let him be disinherited). § 133. He who by taking the place of a -suus heres becomes heir to his ascendants by quasi-agnation, is regarded as a post- humous child : e. gr., if I have in my pofestas a son, and a grandson or granddaughter by him, inasmuch as the son is nearest to me in degree he only has the right of suus heres, though the grandson and granddaughter are in the same potestas; but if my son dies during my life, or in any other way is released from my potestas, the grandson or the granddaughter takes his place, and in this way acquires the right of suus heres by quasi-agnation. § 134. In order, then, that my testament may not become in- operative in this manner, it is not sufficient that I appoint my son heir or disinherit him by name : I must in like manner institute or disinherit the grandson or granddaughter by him, in order that, should my son pre-decease me, either, taking his place, should not by quasi-agnation vitiate my will. The kx Junia Velleia expressly provides that such male children must be disinherited by name, and that such female children may be disinherited either by name or collectively, provided that, if disinherited collectively, some legacy be left them. § 135. By the civil law it is not necessary either to institute or to disinherit emancipated children, inasmuch as they are not «(«' ^e?-e«?es ; but the praetor requires aU children, whether male or female, either to be instituted or disinherited, males of what- ever degree by name, females collectively. He has promised to all not so dealt with the bonorum possessio, be the provisions of the testament what they may. § 136. Adopted children, so long as they remain such, occupy 254 OUTLINE OF ROMAN HISTORY. the same position as natural cliildren ; but wlien once emancipated by the adopter, they are no longer regarded as children by the civil law, nor do they come within the provisions of the praetor's edict. § 137. The consequence is that an adopted child, so long as the adoption subsists, is, relatively to the natural father, a mere stranger, but when emancipated by the adopter acquires the position he or she would have held had the emancipation been made by the actual father. XVI. Quibus Modi's Testamenta infirmentur. § 138. If any man, after making a testament, adopts a son, whether one who is sui juris by authority of the populus, or one who is in the potestas of an ascendant by authority of the praetor, his testament is invalidated by this quad-agnation of a suns heres. § 139. The like result after the making of a will attends the placing of a wife in manu, or the marriage of a woman already in manu, as she thereby assumes the condition of a daughter and becomes quasi sua heres. § 140. The fact that the female or the adopted has been insti- tuted heir in the testament is immaterial. It is needless to discuss the question of their being disinherited, for at the time of the making of the testament they were not among the number of the sui heredes. § 141. As enfranchisement after a first or second mancipation replaces a son in his father's potestas ; it invalidates his father's previous testament ; and it is immaterial whether he was therein instituted heir or disinherited. § 142. The rule was formerly the same, in the case of one to whom the senatusconsuUum applied, respecting marriages with a foreigner or a Latin made in error, supposing the woman to be a Eoman citizen. In short, whether the child had been insti- tuted heir by his father or had been disinherited by him, and whether the fact of the error had been established during the life of the father, or after his death, the proof of the fact in either case nullified the testament by quasi-agnaiio. GAIUS — SECOND COMMENTARY. 255 § 143. Now, however, by a recent senatusconsuUuni, passed at the instance of the late Emperor Hadrian, when the error is estahlished during the life of the father, the child invalidates the testament, as hefore ; but if the error is proved after the father's death, the son who has been passed over invalidates the testament, whereas, if he has either been instituted heir or expressly dis- inherited, he does not; the desire being not to undo that which has been solemnly done when it is too late for it to be done afresh. § 144. A prior testament is revoked by the execution of a valid subsequent one. It is immaterial whether the testator has instituted any one heir in the last testament or not ; the only question is whether any one could have become heir. If, then, he who has been appointed heir in the last testament, duly executed, has either declined the inheritance, or has died, whether during the life of the testator or after his death, before entering on the inheritance, or has been excluded by creiio, or has not complied with the condition upon which he was made heir, or on the groimd of celibacy has been excluded by the lex Julia, in either case the father has died intestate, for his former testament was revoked by the latter, and the latter is equally inoperative when no one becomes heir by virtue of it. § 145. There is yet another way in which a testament pro- perly made and executed may become a nuUity, i. c, by a capitis deminutio of the testator, which, as we have related in the first commentary, occurs in several ways. § 146. But in this case we say that the testament is inritum, i.e., it has become inoperative. No doubt those testaments .that are invalidated are inrita, as are those also that at the first were not duly executed, while, on the other hand, those that were originally made in due form, but have subsequently become inrita by " capitis deminutio," may none the less be said to be in- operative. But as it is obviously convenient to distinguish par- ticular cases by particular names, we say of some testaments that they were iiot legally executed {non jure fieri) ; of others, that, though duly executed, they have been invalidated (rumpi), or have become inrita. 256 OUTLINE OF ROMAN HISTORY. XVII. Bononim Possessio secundum Tabuki-s. § 147. Testaments are not absolutely useless, even when defective ab initio, or when, thougli perfect at their inception, they have become inrita, or riipia ; for if a testament is sealed with the seals of seven witnesses, the heir therein named may demand the bonormn i^ossessio according to its tenor, provided that the testator was, at the time of his death, a Eoman citizen and sui juris. If, however, the testament has become inritum by reason of the testator having subsequently lost his citizen- ship, or even his liberty, or if he gave himself in adoption and died while in the potestas of the adopter, the heir named in the testament cannot claim the bononim possessio. § 148. Those who acquire the bononim possessio under testa- ments invalid ab initio, or under those which, though valid at inception, have become riipfa or inrita, retain the beneficial possession (^possessionem aim re), provided they can retain the inheritance. If, however, they are deprived of that, they have merely the naked possession [possessionem sine re). § 149. For if any one has been instituted heir according to the civil law, either by the original or subsequent testament, or has become entitled ab intestato, he may wrest the inheritance from them. But if there is no one who is entitled by the civil law, the person named who has obtained the bonorum possessio has the right to retain it as beneficial owner, or to an interdict Quorum bonorum against those who hold them for the purpose of acquir- ing possession ; and this is so even when either of those persons exists, in cases where the defect consists in not having manu- mitted the inheritance, or in not having pronounced the nuncu- pationis verba. § 150. Those who, failing all successors ab intestato, took possession of a heritage without any title of their own, were formerly unmolested ; but by the lex Julia caducaria, such pro- perty becomes cadiica, and is ordered to be delivered over to the populus, if no one becomes successor to the deceased, § 151 GAItlS— SECOND COMMENTATIY. 257 XVIII. Le Seredum Qualitate et Differentia. % 152. Heirs are styled either necessarii, or sin et necessarii, or extranei. § 153. The necessarius heres is a slave who has been granted his liberty, and at the same time has been instituted heir. He is so called because, at the death of the testator, he becomes, whether he wills it or not, both free and the heir. § 154. One who is uncertain as to his solvency commonly institutes his slave free and heir in the first, or second, or even in an inferior degree, in order that, should his estate prove insufficient to pay his creditors in full, his effects may be sold as the estate of his heir, instead of "as his own, and his memory be thereby relieved from the ignominy of the sale of his effects. Pufidius says that Sabinus was of opinion that no ignominy should attach to the slave, inasmuch as it is no fault of his, the sale of his effects being brought about by operation of law ; but we adhere to the contrary rule. § 155. However, by way of compensation, the heres necessarius is allowed this advantage, that anything acquired by him after the death of the testator is his own property, whether acquired before or after the sale. Though the sale may only realize sufficient to pay the creditors in part, he is not liable to a second sale on account of the inheritance, unless, indeed, subsequently to the sale, other portions of the inheritance come into his hands, e.g'., the estate of a deceased Latin who was a freed man of the testator, by which he has been enriched. It is different with other insolvents ; for if the sale of their effects proves insufficient to pay all their creditors in full, their after- acquired property may, from time to time, be sold. § 156. Sui et necessarii heredes are, for example, the son or the ' daughter, the grandson or the granddaughter by the son, and the other descendants in succession, provided always that they were in the potestas of the deceased at the date of his death. In order that the grandson or granddaughter may be suus heres, it is not sufficient for him or her to have been in the potestas of the grandfather at the date of his death. It is necessary that the father should, during the life of the grandfather, have ceased N. S 258 OUTLINE OF ROMAN HISTOKY. to be his smis heres, he having been released from his father's potestas, whether by death, or one of the other modes, for it is then, and then only, that the grandson, or granddaughter, takes the place of the father. § 157. Sui Jieredes are so called because they are the domestic heirs, and, as such, are regarded even during the life of the ancestor in a certain sense as proprietors. Therefore, when one dies intestate, the children rank first in the succession. They are styled necessarii because, whether they become such by the testament or ab intestato, they are heirs whether they will it or no. § 158. However, when the ancestor dies insolvent, the praetor permits them to decline the inheritance, in order that the estate of the deceased may be sold rather than theirs. § 159. The same privilege is extended to a wife in manu, as she occupies the position of daughter, and to the daughter in law in manu of her husband, as she occupies that of a grand- daughter. § 160. Furthermore, the prsetor extends the like privilege to a mancipated son, that is, to one who is in causd mancipii, when made free and at the same time appointed heir ; for though, like a slave, he is heres necessarius, he is not suus. § 161. Other heirs, who were not subject to the testator, are styled extranei heredes. Thus, even our own children who, having ceased to bo in our potestas, have been instituted heirs by us, are regarded as extranei heredes. For this reason, those who have been instituted heirs by their mother are ranked in the same class, inasmuch as women have not their children in ^etiv potestas. So also slaves instituted heirs, and at the same time declared free, who, after the making of the testament, have been manumitted by the testator, their master, rank in the same § 162. Extranei heredes have the right to determine whether they will accept the inheritance or not. § 163. But if he who has the right to refuse the inheritance, or to decide whether he will or will not accept it, once inter- meddles with it, he cannot afterwards retire from it, tmless, indeed, he is under twenty-five years of age. If, being under GAIUS — SECOND COMMENTARY. 259 that age, lie has imprudently taken upon himself an onerous inheritance, the praetor ■will relieve him as he does others of the same age who have heen deceived. I do not forget that the late Emperor Hadrian relieved one who had taken upon himself an inheritance in ignorance of serious liaMities, which subse- quently were revealed, even though he was more than twenty- five years of age. § 164. Extranet heredes have ordinarily a fixed period, styled cretio, within which they must make their election. It is called cretio because cernere signifies as it were " to look into " and "to determine" (consiituere) . § 165. Therefore, after having written, "Let Titius he heir," we ought to add, " and within the first 100 days after know- ledge of the appointment and ability to accept it, let him make bretio or be disinherited." § 166. Any one so instituted must make his cretio within the time limited, i. c, i£ he desires to be heir, in which case he must make the following declaration : — " Inasmuch as Publius Mevius has made me his heir in his testament, I hereby accept the inheritance and make my election to be his heir." One who does not so make his cretio within the time limited is excluded. Whether he has or has not meddled with the inheritance is immaterial. § 167. He, on the other hand, who has beeil instituted heir without cretio, or who is heir ab intestato, may acquire all the rights and become liable to all the duties and obligations of an heir, either by making the declaration necessary in cretio, or by assuming the character of heir, or by an informal declaration of willingness to take the inheritance upon himself ; in either case he may enter upon the inheritance whenever he thinks fit. At the instance of the creditors, however, the prsetor usually fixes a period within which the nominated must take upon himself the inheritance, or in default the creditors be at liberty to sell the estate of the deceased. § 168. As he who is instituted heir with cretio cannot become heir without making cretio, so till the time has elapsed within which he may do so, he cannot be excluded from the inheritance; therefore, should he before the expiration of the time express s2 260 OUTLINE OF ROMAN HISTORY. his determination not to become heir, and subsequently change his mind, he may hj'cretio become heir at any time within the prescribed period. § 169. He who has been instituted heir without c^'efob becomes heir by his mere volition. He who has been called to the inheritance by the law, i.e., ah intestato, and declines it, is, in like manner, excluded from it by his mere volition. § 170. The period of cretio has a certain limit. One hundred days is considered a reasonable time. By the civil law it may be made more or less ; but if more than 100 days are given, the prsetor sometimes abridges the period. § 171. Though every cretio is hmited to a fixed number of days, yet there are two kinds of cretio, i. c, cretio mlgaris (ordinary cretio) and cretio certorum dieruni [cretio of fixed days). Cretio mlgaris is that which we have explained, i.e., that in which the words " after knowleiige and ability " appear. Those words are omitted in the cretio certorum dierum. § 172. There is a marked difference between these two kinds of ci'etio. In the case of cretio vulgaris time does not run in the absence of knowledge and ability, whereas in cretio certorum dierum time runs even against one who does not know that he has been instituted heir, or who, from any other cause, has been prevented from making cretio, as also against one instituted heir on condition. It is obvious therefore that cretio vulgaris is the preferable form. § 173. Cretio certorum dierum is styled continua on account of time running under all circumstances; but as this form is oppressive, the other is mostly used, hence its name vulgaris (common). XIX. De Vulgari Suhstitutione. § 174. Sometimes two or even more degrees of heirs are instituted thus : — " Let Lucius Titius be my heir, and make cretio within the first 100 days after knowledge and ability, or in default of his making cretio let him be disinherited. Then let Mevius be heir and make cretio within 100 days, &c." In this way we may make as many substitutions as we may think fit. § 176. One, or several, may be substituted for one, or for several. GAIUS SECOND COMMENTARY. 261 § 176. Thus, then, the first-mentioned heir, by making cretio, becomes heir, and the substitute is excluded. By omitting to make cretio the nominated heir is dislodged, even though he may have acted as heir, and is superseded by the substitute. So if there are several degrees of substitution, the prior failing, the next in order may make cretio. § 177. If cretio is given, and nothing said about the appointed heir being disinherited should he fail to make cretio, e. g., should the appointment run thus — " If he does not make cretio, then let Publius Mevius be heir " — the result is this : If the first omits to make cretio, yet acts as heir, the substitute is admitted as to part, and the two take the inheritance between them in equal shares ; whereas, if the fitrst neither makes cretio nor acts as heir, he is excluded, and the substitute takes the entire inheritance. § 178. It was long since decided that though the first instituted may have acted as heir without making cretio, yet that till the time for making cretio expired he did not thereby let in the substitute, but having so acted, if he allowed the time to expire without making cretio, he then let in the substitute as co-heir. Previous to that decision it was held that the mere fact of acting as heir before making cretio let in the substitute as to part, and the first could not by subsequently making cretio exclude the substitute. XX. Be Pupillari Substittttioiie. § 179. We can substitute to our infant children in o\a potestas not only in the manner already described, i.e., in the sense that- if they do not become our heirs, another may, but in the case where they have in fact become our heirs, but have died before attaining puberty, we may nominate another as heir thus: — " Let Titius, my son, be my heir. If my son shall not become my heir, or should he be my heir but die before attaining puberty, let Seius be heir." § 180. In this case, if the son is not the heir, the substitute becomes the heir of the father ; but if the son is heir of his father, and dies before attaining puberty, the substitute becomes the heir of the son. In one sense, therefore, in this case 262 OUTLINE OF ROMAN HISTORY. there are practically two testaments, tlie one of the father, the other of the son, as if the son had himself instituted his heir ; or at all events, there is one testament that disposes of two inheritances. § 181. In order that after the death of the father the pupil may not be subjected to foul play, i^is usual to make the ordinary substitution openly, i.e., in the clause where we institute, the pupil heir, as the ordinary substitution clause does not call the substituted to the inheritance except in default of the pupil becoming heir, as when he dies during the father's life, in which case no danger is to be apprehended from the substitute, for during the father's life the contents of his testament are un- known. But the substitution by which provision is made for the event of the pupil heir dying before he attains his majority is written separately on other tablets carefully tied together and sealed, and in the first tablet it is expressly forbidden to open them during the life of the son and while he is under age. It is, however, .safer to place both substitutions together in the latter tablets and separately by themselves, because, if they ai'e sealed separately as we have described, it is easy from the perusal of the former to conjecture the contents of the latter, and to conclude that the same person is substituted in the second. § 182. It is not merely when instituting our children who are under age heirs, that we can appoint substitutes in the event of their death before puberty, for we can also do so when we disinherit them, in which case all that the pupU may have acquired, whether by inheritance, legacy, or donation from relations, goes to the substitute. § 183. All that has been said respecting substitution in the case of children under age, whether instituted heirs or dis- inherited, is equally applicable to the case of posthumous children. § 184. When we institute one who is a ^atinger heir, we can- not provide that, in the event of his becoming heir and dying within a given period, a given person shall be his heir. AH that we can do is to bind him hy fideicommissum to transfer our estate either in whole or in part. In its proper place we will explain the natiu'e of this right. GAITJS— SECOND COMMENTARY. 263 XXI. Be Seredibus instituendis. § 185. Slaves, whether our own, or the property of another, may equally with freemen be instituted heirs. § 186. If, however, the slave belongs to us, he must be de- clared to be free and heir, thus : — " Let Stichus my slave be free and heir," or " Let him be heir and free." § 187. Because if he is instituted heir without at the sanie time being made free, even should he afterwards be manumitted by his master, he could not become the heir, inasmuch as the institution was bad ; consequently, even if he had been alienated, he could not make cretio for the inheritance by the order of his master. § 188. When, however, he is instituted heir with his liberty, if he remains with the testator he becomes by virtue of the testament free and necessarius Jieres ; if he is manumitted by the testator it is competent for him to take the inheritance at his pleasure : if he has been alienated he must take the inheritance if commanded to do so by his new master, in which case his new master becomes the heir by his agency, because having been alienated he cannot himself be either heir or free. § 189. So the slave of another instituted heir, if he retains his position, must take the inheritance, if at all, by the order of his master ; but if he has been alienated by him, whether during the life of the testator or after his death, he must first make cretio by the order of his then master before he can enter on the inheritance ; if he has been enfranchised before entering on the iaheritance, he is at liberty to accept it or not, as he may think fit. § 190. But if the slave of another has been instituted with cretio vulgaris, time does not commence to run against him till he is made awai-e of the fact that he has been instituted heir, and there is nothing to prevent his informing his master of the fact in order that he may be able to make cretio by his order. XXII. De Legatis. § 191. We will now consider legacies. This branch of the kw seems to be foreign to our present discussion, which is an 264 OUTLINE OF KOMAN HISTOKY. inquiry into tlie various legal methods by which we acquire per unwersitatem, hut having explained testaments, and heirs who are instituted by testament, there -is in fact reason for our immediately discussing the subject of legacies. § 192. There are four species of legacies, i.e., we grant legacies either by vindicatio, by gkimnatio, sinendi modo, or by prmceptio. % 193. By vindicatio we bequeath thus : — " I give and bequeath say, for example, the man Stichus;" but if one has only employed one of the two verbs, e. g., " I give the man Stichus," or other terms such as " Let him take," " Let him have," " Let him seize," a legacy by vindicatio is equally con- ferred. § 194. Such legacies are styled legacies by rindicatio -because the moment any one has entered on the inheritance, whether as heir or otherwise, the thing becomes the property of the legatee ex jure Quiritium, and he has the right of vindicatio respecting it, i.e., he has the right to claim the things as his by Quiritarian law. § 195. However, the jurists are divided in opinion as to this. Sabinus and Cassius and the rest of our authorities maintain that the legacy vests in the legatee the moment the inheritance has been accepted, though the legatee be ignorant of the fact of the bequest, but that, if after the knowledge of the fact he declines the legacy, it is as if no legacy had been left him. On the other hand, Nerva and Proculus, together with the other authors of that school, contend that the legacy does not vest in the legatee till he has accepted it. Now, however, since a.constitution of the late Emperor Antoninus Pius, we in practice follow the rule of Proculus, for in the case of a Latin having been bequeathed by vindicatio to a colony, that emperor said, " Let the decuriones consider whether they will, or will not, accept the legacy as if the bequest had been made to a private individual." § 196. Nothing can be bequeathed legally by vindicatio except things of which the testator has Quiritarian ownership. As to things capable of being weighed, or counted, or measured, it has been decided that it is sufficient that the testator should have GAIUS — SECOND COMMENTAllY. 265 tte Quiritarian ownerslilp at tlie time of the death, e.g., such things as wine, oil, wheat, cash. As to other things, it has been decided that the testator must have Quiritarian dominium over them at two periods, i.e., at the time of the making of the testament and at the date of death, otherwise the legacy is void. § 197. Such is doubtless the civil law. However, on the proposition of the Emperor Nero, it was enacted by a senatus- consiiUnm that if any one bequeathed anything to another, although it did not belong to him, yet the legacy should be held as valid as if the legacy had been granted in the form most favourable to the legatee, i.e., by damnatio, by which, as we shall see hereafter, one may even bequeath the property of another. § 198. But if any one bequeaths that vyhich is his Own, and after the making of the testament alienates it, the majority are of opinion not merely that the bequest is void by the civil law-, but that it is not made operative by the senatusconsultum, the reason being, that, had one by damnatio bequeathed property of his own which he afterwards alienated, though by the strict letter of the law the legatee would be entitled to it, yet in the opinion of the majority of the jurists, should the legatee demand it, he might successfully be met with the plea of doli mali on the ground that he was demanding property of the deceased contrary to the intention of the deceased. § 199. In all cases where one by vimlicatio has granted a legacy to two or more whether jointly or severally, if all the legatees claim, each takes his fractional part ; if one, or more, do not claim, the unclaimed portion is divided equally among the claimants as accretio. A joint bequest is made in the following form : — " I give and bequeath the man Stichus to Titius and Seius." A several bequest thus :— " I give and bequeath the man Stichus to Lucius Titius ; I give and bequeath the same man to Seius." § 200. When a thing has been bequeathed by mndicatio on condition, the question is : — To whom does the thing belong before the happening or performance of the condition ? Our masters, the Sabinians, contend that it belongs to the heir, from analogy to the case of the statuliber, i.e., the slave to whom liberty has been granted by the testament on a certain condition, 266 OUTLINE OF ROMAN HISTORY. for it is clear that, in that case, till the condition has been- satisfied, the slave is the property of the heir. However, the authorities of the other school — the Proculians — are of opinion that during the interval the thing does not belong to any one, and they insist still more strongly that it is so in the case of an unconditional legacy, before the legale accepts. §201. We bequeath by damnatio thus:' — "Let my heir be condemned to give Stichus my slave." So if the words are " Let him give " it is equally a legacy by damnatio. § 202. By this species of legacy it is possible to bequeath the property of another, for the heir is boimd either to buy the thing bequeathed and transfer it to the legatee, or to give to the legatee its value. § 203. One may also by damnatio bequeath that which does not exist, provided it will come into existence, e.g., the fruit that shall grow in a certain field, or the child that shall be bom of a certain female slave. § 204. A bequest made by damnatio, though absolute, does not vest the property in the bequest in the legatee by the heir's acceptance of the inheritance, as it does in the case of vindicatio. The property in the subject of the bequest by acceptance of the inheritance vests in the heir. Consequently, the legatee must sue the heir if at all in personam, i. e., he must allege that the heir is bound to give him, &c. If the thing is res mancipi, the heir must convey it to the legatee by mancipium, or by cessio in jure and transfer of the possession. If it is res nee mandpi, delivery of possession is sufficient. If the heir delivers posses- sion merely of a res maneipi it is only by usucapio that fuU proprietary rights in the thing vest in the legatee. As we have abeady said, title by usucapio is acquired by possession for one year in the case of movables, by two years' possession in the case of immovables. § 205. There is yet another difference between these two species of legacies — it is this : When the same thing has been bequeathed by damnatio to two or more persons, if the bequest is joint, one share is due to each. ... If it is several the entire thing belongs to each, and the heir is bound to give the thing itself to one and its value to the other. Where the bequest is GAIXJS— SECOND COMMENTARY. 267 joint, sliould one fail to take his portion, that portion does not go to his co-legatee, but remains in the inheritance. § 206. When we say that the portion of the one failing to take in the case of a legacy by damnatio remains in the inherit- ance, .whereas in the case of a legacy by mndicatio it goes to the co-legatee, we must be understood to say that such was the law before the lex Papia. Since the lex Papia the lapsed share becomes caduca and the property of those named in the testa- ment who have children. § 207. And although in the vindicatio of things cadtica heirs who have children rank first, and if the legatees have none, then legatees who have, yet the lex Papia provides that in a joint bequest the co-legatee who has children shall be preferred to heirs, even though they may have children. § 208. The majority are of opinion that this provision of the lex Papia in favour of the co-legatee equally applies whether the legacy is by vindicatio or damnatio. § 209. Sinendi modo {Permissive legacies). We bequeath by way of permission thus : — " Let my heir be compelled to permit Lucius Titius to take and keep as his own the man Stichus." § 210. By this method the testator has greater latitude than in vindicatio, but less than in damnatio, for by this method the testator may make a valid bequest, not merely of his own property, but of that of his heir, whereas by vindicatio he can only bequeath his own property, and by damnatio he can bequeath the property of any one. § 211. If at the time of the death of the testator the thing bequeathed belonged either to the testator or to the heir, the legacy is without doubt valid, even though at the time of the making of the testament it did not belong to either. § 212. It is asked : — In the event of the thing not becoming the property of the heir till after the death of the testator, whether the bequest would be valid or not. The majority are of opinion that it would not. What follows? Though a testator may have bequeathed something which was never his and which never becomes the property of his heir, yet by a 268 OUTLINE OF KOMAN HISTOKY. senatusconsuUum of Nero, the legacy is regarded as having been made by damnatio. § 218. We have already seen that a bequest made by damnatio does not transfer the property in the subject of the legacy to the legatee, by the entrance of the heir on the inheritance, and that it remains vested in the heir till by traditio, mancipatio, or cessio in jure he has transferred it to the legatee. It is precisely the same in the case of sinendi modo. A legacy so made gives to the legatee an action in personam by vsrhich the legatee claims that the heir shall be adjudged " to give, or do, all that he ought to give, or do, according to the terms of the testament." § 214. Some authors are, however, of opinion that in this case the heir is not bound to vest the property in the legatee, whether by mancipatio, cessio in jure, or traditio, but that it suffices if he permits the legatee to take the thing, inasmuch as the testator has only directed him to permit, i.e., to suffer the legatee to take the thing bequeathed as his own. § 215. A more serious dispute has arisen in respect of this mode of bequest in the case where one and the same thing has been bequeathed severally to two or more persons. Some are of opinion that each is entitled to the entire thing, as in the case of a legacy by damnatio; others contend that the position of the first claimant is the best, because, as the heir in this species of legacy is directed to aUow the legatee to take the thing, it follows that if he has allowed the first claimant to take it, he wiU be safe as against either of the others who may demand it, inasmuch as he has not the thing for them to take, and it is no fault of his that he has not. §216. We bequeath per prwceptionem thus: — "Let Lucius Titius first take the man Stichus." § 217. Our masters (the Sabinians) are of opinion that a bequest cannot be made in this form to any one who has not been instituted heir as to part of the inheritance, for the word prcecipere signifies to take in advance, which can only apply to one who has been instituted heir as to a portion of the inherit- ance ; and therefore that the intention is that one so situated should be at liberty in the fijst place to take his legacy, and ' afterwards his full share of the remaining inheritance. GAIUS — SECOND COMMENTARY. 269 ^ § 218. Consequently, if such a legacy be bequeathed to a stranger, the legacy is void. Sabiaus, indeed, is of opinion that it coiild not be rendered valid by the operation of the senatusconsuUum of Nero, for, said he, that senatusconsuUum only validates legacies invalid by the civil law by reason of the language used, and not those inoperative by reason of the person of the legatee. Julianus, however, according to Sextus, was of opinion that the bequest was perfected by the senatus' consuUum, for even in this case, it is by reason, said he, of the language used that the bequest is bad by the civil law ; for he argued, " It is clear that the same result might be attained in another way by other language, e.g., by vindioatio, by damnatio, or sinendi modo, whereas, when the bequest is bad by reason of the person, it is because a legacy has been left to one who, by law, cannot take it ; e.g., a. legacy to a, peregrinua, with whom a Eoman has no testamenti f actio, ia which case it is clear that the senatusconsuUum could not apply." § 219. Our authorities also contend that one to whom such a legacy has been left can only recover it by an actio familice erciseundcB, which is employed in the ease of disputes between heirs as to the division of the inheritance, it being one of the duties of the judge in such an action to adjudge what has been left by prceceptio. § 220. The result of the opinion of our authorities is that the testator by prceceptio can only bequeath that which actually belongs to him, no other property beiag the subject of the action. If, therefore, a testator by this form bequeaths . any- thiag that is not his, the bequest is void by the civil law, but it will be enforced by the senatusconsultutn. There is one case, they say, however, in which the property of another may be bequeathed by prceceptio, i.e., when a thing manoipated to a ciediior _fidi(cicB causa is bequeathed to the creditor, for they hold that the heirs may be compelled by the judge to free the article by payiag the money due, in order that the legatee may take it in advance. § 221. The authorities of the opposite school are of opinion that property maybe bequeathed hy prceceptio even to a stranger, as if the language used was "Let Titius take the man Stichus," 270 OUTLINE OF ROMAN HISTORY. the syllaUe jpiw in the word prcBceptio being regarded by them as superfluous, the consequence being that the thing bequeathed is, in fact, bequeathed as by vindicatio. It is said that this opinion has been confirmed by a constitution of the late Emperor Hadrian. § 222. Consequently, according to^this doctrine, i£ the article belonged to the deceased ex jure Quiritium, the legatee might recover it by vindicatio, whether he be an heir or a stranger. If it was only in bonis of the testator, the legacy would be valid in the case of its being left to a stranger by virtue of the senatus- consultum, and it might be recovered in the case of its being left to the heir by the executive authority of the judex in the aotio familim erclscimdce; and if the testator had no title to the article, the legacy would, by the senatusconmltum, be equally available to the heir and a stranger. § 223. When the same thing is bequeathed jointly, or seve- rally, to two or more legatees, whether according to our autho- rities they be heirs, or according to our opponents they be even strangers, all take equal shares. XXIII. Ad Legem Falcidiam, § 224. At one time it was lawful for the, testator to exhaust his entire patrimony in legacies and enfranchisements, leaving to his instituted heir nothing beyond the bare title. Such appears to be the law of the Twelve Tables, which enacts that testamentary dispositions shall be valid ; note the text, " Uti legassit siice rei, itajus esto " (Let the testamentary dispositions of the testator concerning his property be law) ; consequently, many who were institute.d heirs declined the inheritance, the result being that many died intestate. § 2.25. To meet this state of things, the lex Furia enacted that no one, certain specified persons excepted, should take either as a legacy or as a donatio mortis causa more than 1,000 asses. That law, however, failed to accomplish the object in view, for he who, for example, had a patrimony of 5,000 brass asses, might, by bequeathing to five persons 1,000 asses each, exhaust the whole of his patrimony. GAITJS— SECOND COMMENTARY. 271 ■ § 226. Hence the lex Vooonia, whioli forbade any one to take, whether as a legacy or as a donatio mortis causd, more than the heirs. By this, douhtless, the heirs appeared to be secured as to something; however, it created an ahnost equal disadvantage, for testators, when distributing their estate between a large number of legatees, might leave so little to the heir that it would not be worth his while, for so small an amount, to take upon himself the burden of the entire inheritance. § 227. Consequently the lex Falcidia was passed, which enacted that it was unlawful for any one to bequeath more than three-fourths in legacies, the consequence being that one-fourth of the inheritance is necessarily secured to the heir. Such is the law at present in force. § 228. The lex Furia Caninia, as already explained in the first commentary, in like manner limited the power of enfran- chising. XXIV. Be inutiliter relictis Legatis. % 229. A bequest appearing before the institution of the heir is void, inasmuch as Testaments derive their force from the in- stitution of the heir : consequently, the institution of the heir is regarded as the head and foundation of the entire testament. § 230. For the same reason, liberty cannot be granted before the institution of the heir. § 231. Our authorities also hold that a tutor cannot be appointed in that part of a testament. Labeo and Proculus, however, think that one may be, because, say they, in the appointment of a tutor no portion of the inheritance is dis- posed of. § 232. A bequest made to take effect after the death of the heir is also void, e. g., " After the death of my heir, I give and bequeath," or " let him give." A bequest, however, is valid if made thus : " when my heir is dying" : because the disposition is not, in that case, to take efEect after the death of the heir, but is only postponed to the end of his life. Again, a bequest in the following terms is also void : "the day before my heir shall die." For this rule there does not appear to be any valid reason. 272 OUTLINE OF EOMAN HISTORY. § 233. What we have said is' equally applicable to. enfran- chisements. § 234. Whether the appointment of a tutor can be inade to take effect after the death of the heir or not possibly admits of the same divergence of. opinion as whether he can be appointed before the institution of the heir. XXV. Be PcencB causa reliotis Legatis. § 235. A bequest by way -of penalty is also void. A bequest is considered as made by way of penalty when it is so made as to constrain the heir to do, or to omit to do, e.g., " If my heir gives his daughter in marriage .to Titius, let him give ten thousand (sesterces) to Seius," or "If you do not give your daughter in marriage to Titius, give ten thousand (sesterces) to him." So if the testator has directed that if within two years the heir does not, e.g., erect a monument to his memory, then that he shall give 10,000 sesterces to Titius, the bequest is regarded as a penal legacy. In short the definition is in itself sufficient to enable us to suggest numerous cases. § 236. A grant of liberty cannot be made by way of penalty: this proposition, however, has been questioned. § 237. We cannot raise the same question in the case of a tutor, because the heir cannot be constrained by the appoint- ment of a tutor to do, or to abstain from doing, a given thing ; and therefore no tutor is given by way of penalty, and if one were so appointed he would be considered as appointed con- ditionally rather than by way of penalty. § 238. A legacy to an uncertain person is void. One is regarded as uncertain of whom the testator haS no certain conception, e.g-., should the testator say, "Let my heir give 10,000 (sesterces) to the first comer to my funeral." It is the same if he used general terms, e.g., " to all who shall attend my funeral." We may place in the same category a bequest made thus : — " Let my heir give 10,000 (sesterces) to him who shall give his daughter in marriage to my son : " so, " to those who are the first consuls designate after the execution of my testa- ment," for such a legacy is equally regarded as being bequeathed to uncertain persons. Many other similar instances might be GAIUS — SECOND COMMENTAKY. 273 given. HoweYer, a valid bequest may be made to an uncertain member of a certain class, e.g., "Let 10,000 (sesterces) be given to him of my now existing cognates who shall first come to my funeral." § 239. In like manner liberty cannot be given to an un- certain person, for the lex Futia Caninia requires slaves to be enfranchised by name. § 240. The appointed tutor must in like manner be a person certain. § 241. A bequest to a posthumous stranger is void. A post- humous stranger is one who at his birth would not be a suns heres of the testator: thus, the child conceived of an emancipated son is, as to his grandfather, a posthumous stranger ; so, the child in the womb of the woman whom the jtis civile does not recognise as a wife for the Want of eonnubium is held to be a posthumous stranger in regard to his father. , § 242. A posthumous stranger cannot be instituted heir, for he is an uncertain person. § 243. As to the other observations that we have made concern- ing penal dispositions, it may be said that properly speaking they relate solely to legacies. However, certain authors maiataia, and not without reason, that an heir cannot be instituted byway of penalty, for it matters little whether the heir Is directed to pay a legacy In the event of his doing or not doing a given something, or in that event to have a co-heir tacked on to him, because, alike by the addition of a co-heir and by the giving of a legacy, he is compelled to do or to forbear, be his inclination what it may. § 244. Can a' valid bequest be made to one who is in the potestas of the person whom we institute heir ? Servius main- tains that the bequest is valid, but that it becomes void If at the time the legacy would otherwise vest the legatee is still in potestas; consequently, If the bequest is unconditional, and during the lifetime of the testator the legatee has ceased to be In the potestas of the Instituted heir, or If it be conditional and he has ceased to be in the potestas before the happening of the condition, then In either case the legatee Is entitled. Sablnus and Oassius are of Opinion that the conditional bequest is N. X 274 OUTLINE OF ROMAN HISTORY. good, but that tlie unconditional one is not; for, say they, though the legatee may cease during the liEetime of the testator to he in the potestas of the instituted heir, the hequest ought to be regarded as void, as it would be absurd to hold that that which could have no force should the testator die immediately after the execution of his testameat, would acquire force by the mere fact that the testator happened to live for some time longer. The authorities of the opposite school hold that condi- tional bequests are also void, because we cannot be indebted to those in our potestas conditionally, any more than we can be unconditionally. § 245. On the other hand, it is clear that any one who institutes as his heir one who is in your potestas may make a valid bequest to you. If, however, you become the heir through him, the legacy lapses, for you cannot be debtor to yourself; whereas, if the instituted heir, being your son, is emancipated, or being your slave, is manumitted or alienated, and thus himself becomes the heir, or makes another the heir, the legacy is yours. XXVI. Be Fideicommissariis Sereditatibiis, % 246. Let us now pass on to fideicommissa. § 247. We will first consider inheritance. § 248. The first thing to be observed is that it is absolutely necessary that an heir should be formally instituted, and that the inheritance should be entrusted to him to be transferred by him to another, for a testament in which no 'heir has been instituted with due legal formality is invalid. § 249. The technical terms and those most in use for the creation of fideicommissa are " Peto, rogo, voh, fideicommitto" (J leg, I request, I desire, I commit to your good faith.) Each has the same force as all wotild have if combined. § 250. Thus after having written, " Let Lucius Titius be heir," we may add, " I ask you, Lucius Titius, and beg of you that so soon as you can enter on my inheritance you wiU deliver it over to Gains Seius." We may also request him to transfer a part. We are at liberty to leave fideicommissa either conditionally or unconditionally, or from a specified date. GAIUS — SECOND COMMENTARY. 275 § 251. After the transfer tlie transferor remains heir not- withstanding. The transferee at times assumes the place of heir, at others that of legatee. § 252. Formerly, he had neither the status of heir nor legatee, hut rather that of purchaser, for it was customary, for the sake of form, to sell the inheritance to him for a single coin, with the stipulations commonly made hetween vendor and pui'chaser of an inheritance, thus : The heir stipulated with the transferee that he. should he indemnified by him against all losses he might sustain by reason of his being heir, or for anything he may have parted with bona fide, and, generally, that should any one take proceedings against him as heir, he should be properly de- fended. On the other hand, he to whom the inheritance was transferred stipulated that the heir should deliver to him any portion of the inheritance that might thereafter get into the possession of the heir, and that he should also allow him to institute suits concerning the inheritance as procurator or cognitar. % 253. Subsequently, however, that is to say, during the consulate of Trebellius Maximus and Annseus Seneca, it was enacted by a senatusconsuUum that, when an inheritance has been transferred by the heir to another by way of fideicommissim, all actions given to or against the heir by the civil law should He by or against the transferee by virtue of the trust. Since that senatusconsuUum, the stipulations of which we have spoken have fallen into disuse, for the praetor began to grant utiles aetiones to and against the transferee, treating him as if he were heir : these actions are set forth in the edict. § 254. As the instituted heir, being ordinarily requested to transfer either the whole or nearly all of the inheritance, refused to enter upon it, there being little or nothing for him, fldeicommissa came to nought, whereupon the senate, during the consulship of Pegasus and Pusio, decreed that the instituted heir, who was requested to transfer the inheritance, should be allowed to retain one-fourth, as in the case of legacies under the lex Falcidia, and gave a similar right of retaining the fourth of any specific thing left in trust. By virtue of this senatus- consultum-, the heir bears the expenses of the inheritance, while t2 276 OUTLINE OF SOMAN HISTORY. he who takes the rest of the inheritance by virtue of the fideicommismm takes the place of a partiary legatee, i. e., of a legatee to whom a portion of the goods is left. This species of legacy is styled partitio, because the legatee divides {partitur) the inheritance with the heir ; consequently, the same stipula- tions that are commonly made between the heir and the partiary legatee are made between the transferee of the inheritance, by way oi fideicommissum, and the heir, in order to secure to each a share proportioned to his interest of the profits and losses of the inheritance. § 255. Thus, then, when the instituted heir is not required to transfer more than three-quarters of the inheritance, the transfer is made under the senatusconsultum TrebelUanum, and the actiones hereditarice are given to each in respect of his part against the heir according to the civil law, and against the receiver of the inheritance by virtue of the 8. C. TrebelUanum. In all cases the heir remains heir even as to that which he has transferred, and actions as to the whole lie in. principle by and against him, but in practice the charges do not fall on him, nor are actions given to him, beyond the extent of his remaining interest in the inheritance. § 256. But when the heir is required to deliver over the whole or more than three-fourths of the inheritance, the senatmconsuUum Pegasianum applies. § 257. .But he who has once entered on the inheritance, provided he has done so voluntarily, whether he retaias, or does not wish to retain, the fourth, bears personally all the burden of the inheritance ; when he retains the fourth, stipulations should be employed resembling those used between a partiary legatee and an heir, styled partis et pro parte ; and if he delivers over the whole inheritance, he should use stipulations similar to those used in the case of the sale and purchase of an inheritance. § 258. But should the appointed heir decline to enter upon the inheritance, alleging that he believes it to be insolvent, then by the provisions of the 8. C. Pegasianum he ought, on the demand of him to whom he is directed to transfer it, to obtain the order of the praetor for him to enter and transfer, in which case, stipulations are unnecessary, as the heir is secured and the GAIUS SECOND COMMENTARY. 277 actions are given to and against the person to whom the in- heritance is transferred, as in the case of the 8. C. Trebellianum. § 259. Whether the heir is instituted to the whole inheritance and directed to transfer the whole or only a part, or whether he is instituted to a part only of the inheritance and directed to transfer the whole or only a part of that part, is of little moment, for in either case the fourth is retained by virtue of the S. C. Pegasianum. XXVII. Be Singulis Eebus per Ftdeicommissum relictis. § 260. It is also competent by fideicommiasum to leave in- dividual things, e.g., a field, a slave, a garment, plate, money, and to direct the heir or a legatee to deliver it to some third person, notwithstanding the fact that a legacy cannot be charged on a legatee. §261. A testator m.&y,hy fideicommissum leave not merely his own property, but that of the heir or legatee, or in short of any person. Thus a legatee may be requested to transfer to some third person, not merely the thifig bequeathed to him, but some other object belonging either to himself or another. The only limit to be observed is that he must not be charged to transfer more than he receives tinder the testament, for as to the surplus the direction is futile. § 262. When one by ftdeicommissum leaves the property of another, it is incumbent on the person charged, either to deliver it, or its value : he must either purchase the thing and hand it over, or pay its value, as in the case of the property of another bequeathed by damnatio. Some authors,, however, are of opinion that if the owner of the thing bequeathed laj ftdeicom- missum refuses to sell it, the trust is extinguished, but that it is otherwise in the case of a legacy by damnatio. § 263. Liberty may be given to a slave by ftdeicommissum by praying either the heir or the legatee to manumit him. § 264. It is immaterial whether the testator makes the request in respect of a slave of his own, of the heir, of a legatee, or of a stranger. § 265. Thus the slave of another ought to be purchased and enfranchised. If, however, the master of the slave refuses to 278 OUTLINE OF ROMAN HISTOKY. sell him, there is no douht in that case that the fideicom- missum of liberty is extinguished, because the value of liberty cannot be computed. § 266. The person enfranchised as the result of a /c/e«commMS«»M does not become the freed man of the testator, even though he may have been his slave, but he becomes the freed man of his manumitter. § 267. It is otherwise when liberty has been granted directly by the testament, for example, in these terms, " Let my slave Stiohus be free," or " I direct that Stichus my slave be freed," in which case the emancipated slave is the freed man of the testator himself. No one can derive liberty directly by virtue of a testament unless he has been the slave of the testator by Quiritarian law both at the date of the execution of the testa- ment and of the death of the testator. § 268. There is a great difference between things left by fideieommissum and legacies left directly. § 269. Thus by fideieommissum one can leave .... (by a mere nod of the head) whereas a legacy .... (must be granted by testament). § 270. So one about to die intestate may by fideieommissum charge his successor with a trust, but cannot charge him with a legacy. § 270a. So a legacy left by a codicil is invalid unless the codi- cil has been confirmed by testament, that is to say, unless the testator has in his testament declared that what he shall direct in his codicils must be observed : a fideieommissum, on the con- trary, may be left even in codicils not ratified. § 271. So a legatee cannot be charged with a legacy, but may be with a fideieommissum : nay more, it is competent to charge one to whom something is left by fideicommisstmi with a fidei- eommissum in favour-of another. § 272. Though liberty cannot be given directly to the slave of another it may be secured to him by fideieommissum. § 273. So, no one can be instituted heir or disinherited by codicil, even if confirmed by testament ; but he who has been instituted heir by testament can, by codicil, be charged to GAIUS — SECOND COMMENTARY. 279 transfer the interitance to another whether in whole or in part, though such codicil may not have been previously ratified by testament. § 274, So a woman, who by the provisions of the lex Voconia can- not be instituted heir by any one registered as worth more than 100,000 asses, may, however, receive from him an inheritance by fideicommissum. § 275. So Latins, who by the lex Junta are debarred from taking inheritances and legacies directly, may acquire them by fideicommissmn. § 276.- So, notwithstanding that a senafusconsuUum has for- bidden the freeing of a slave under thirty years of age, and at the same time appointing him heir, it is the prevalent opinion that we can direct that he shall be made free when he is thirty years of age, and the heir may be bound by a declaration of trust to convey the inheritance to him. § 277. So, though one cannot institute an heir to our heir, we can desire- our heir, when apprehensive of death, to transfer the inheritance to another, whether in whole or in part, and, inasmuch as a trust may be limited to take effect after the death of- the trustee, the same end may be attained by the use of these words : — " When Titius my heir shall be dead, I desire that my inheritance shall belong to Publius Mevius." In either case Titius leaves his heir bound to convey the inheritance to the person designated. § 278. Besides, we sue for legacies by means of a formula ; whereas trusts are enforced by the extraordinary jurisdiction of the consul or prcetor fideicommissarius at Rome, and in the provinces before the president of the province. § 279. Again, at Eome cases of fideicommissa will be heard at any time, whereas legacy cases are only taken during the sittings. § 280. The interest and profits in the ease oi fideicommissa are due and payable by the person charged, when found guilty of delay in making the transfer ; whereas, by reason of a rescript of Hadrian, interest is not payable in the case of legacies. I do not forget that Julian was of opinion that on legacies sineiuU modo the same rule should be adopted as in the case of fidei- 280 OUTLINE OF ROMAN HISTORY. commissa, and I observe that that opinioii is now gaining ground. § 281. It is to be observed that legacies written in Greek are void, whereas fideicommissa written in that language are valid. § 282. So ii the heir disputes a legacy left per damnationem an action lies against him to recover the double value, whereas in the case oi fideicommissa the actual value only is recoverable. § 283. So anyiiiing paid in error in excess of the amount due in the case of fideicommissa is recoverable, whereas anything paid in error over and above the amount due in the case of a legacy per damnationem cannot be recovered. The same un- doubtedly is the law as to a legacy which, though not due, has for some cause or other been paid by mistake. § 284. There were other difEerenees which, however, no longer exist. § 285. For example, peregrini could receive fideicommissa : in fact, we may even say that this was the origin of fideicommissa. But that was subsequently prohibited, and now, by a senatus- consuUtim passed at the instance of Hadrian, fideicommissa made in favour oi peregrini are forfeited to ihefiscus. § 286. At one time coelibes, who by the lex Julia are prohibited from taking a legacy, were held capable of taking fideicommissa. So the orbi, who by the terms of the lex Papia lose the half of inheritances or legacies left to them by reason of their being childless, were nevertheless, in former times, held capable of receiving the whole of the property left to them hj fideicommissa. In the course of time, however, by the senatusconsultum Pe- gasianum they were forbidden to take fideicommissa as well as legacies and inheritances. The senatusconsultum at the same time transferred the caducal portion to those named in the testament who had children, and, in the event of there not being any, to the populus, as in the case of legacies and inheritances. § 287. For the same or a similar reason one could formerly, by fideicdhimissum leave property to an uncertain person, or to a posthumous stranger, though such person could neither be instituted heir nor made a legatee; but a senatusconsultum published at the instance of Hadrian applied to fideicommissa the rule applicable to inheritances and legacies. GAIUS — SECOND COMMENTARY. 281 § 288. It is unquestionable that a bequest by way of penalty cannot now be made, even hj fideicommissum. § 289. Though in many respects fideicommissa admit of greater latitude than direct dispositions, and in others the two are equal, yet a tutor cannot be given by testament otherwise than directly, e. (/., thus : — " Let Titius be tutor to my children," or " I appoint Titius tutor to my children." A tutor cannot be given by fideicommissum. 282 OUTLINE OF ROMAN HISTORY. THIRD COMMENTARY, DE EEEUM -UNIVEESITATIBUS ET DE OBLIGATIONIBTJS. I. Be Eereditatibus qua ab Intestato deferuntiir. § 1. By the law of tlie Twelye Tables tlie estates of those who die intestate helong in the first instance to the sui heredes. ■ § 2. By the expression sui heredes is intended the children who were in the potestas of the deceased at the time of his death, e.ro7)iissor. § 112. It is not necessary that the adstipulator should use the identical language employed by the stipulator, for example, if I have stipulated thus : " Do you undertake that it shall be given ? " he may stipulate thus : " Do you promise the same thing on your word of honoiu' " (become fidepromissor) ? or "Do you guarantee on your word of honour the same thing" (become ^fi^MSSor) ? or vice versa. § 113. Though the adstipulator may stipulate for less, he cannot stipulate for more : consequently, if I have stipulated for ten sesterces he may adstipulate for five, but he may not stipulate for more than ten ; so if I have stipulated unconditionally he may adstipulate conditionally, but if I have stipulated conditionally he cannot adstipulate unconditionally. The greater and the less must be imderstood, not only as relating to quantity, but also to time, for to give at once is to give more, to give hereafter is to give less. § 114. In the law upon this subject some somewhat singular principles are observed : — The heir of the adstipulator has no right of action. A slave adstipulating performs a void act ; whereas he may in all other eases acquire for his master by stiptdatio. The same principle holds in the case of one who is in mancipium, for he is in a position similar to that of a slave. On the other hand adstipulatio made by one who is in the potestas of his father is valid ; he does not, however, thereby acquire for his ascendant, though in all other cases he does acquire for him by stipulatio ; furthermore, an action on the adstipulatio does not lie at his suit unless, indeed, he has ceased to be in potestate by some method which did not involve a capitis diminutio; e.g., by the death of his father, or by having been instituted flamen Dialis. What has been said applies equally to a female in potestas or in mamis. § 115. In Kke manner others may become bound for the promissor. Of such persons some are styled sponsores, others fldepromissores, and others fidejussores. § 116. The spoimr is interrogated thus :— " Do you undertake that the same thing shall be given ? " [Idem dari spondes ? ) The 304 OUTLINE OF BOMAN HISTOEY. fidepromissor thus : — " Do you promise on your word of honour the same thing ? " {Idem fldepromittis ? ) The fidejussor thus : — " Do you guarantee on your word of honour the same ? " {Idem fide tua essejuhes ? ) We will inquire hy what name those can be appropriately styled who are interrogated thus : — " Will you give the same thing?" {Idem dahis ?) " Do you promise the same thing" {Idem jvomittis ?) " WiU you do the same thing ? " {Idem fades?). § 117. We frequently take sponsm-es, fidepromissores, and fide- Jzissores for the purpose of increasing our security, whereas we rarely join adstipulatores except when we stipulate that some- thing shall he given after our death, the only use of which is that the adstipulator may act after our death : our stipulation for this is void. If the adstipulator recovers anything he is bound to hand it over to our heir, and the actio mandati will lie against him to compel him to do so. § 118, The condition of sponsor anifidepromissor is very muish the same ; that oi fidejussor is very different. § 119. In short, the first two cannot be party to any obligation otherwise than verbis, even where the promissor is not bound, for instance, where a pupil has made a promise without the authoriza- tion of the tutor, or where any one has promised that something shall be given after his death. It is not certain when a slave or a peregrinus has promised by using the expression " spondeo," whether the sponsor or fidepromissor is bound for him. The fidejussor, on the contrary, can bind himself by either form of contract, i. e., whether it be re, verbis, Utteris, or consensu ; and it is of little moment whether the obligation to which he is party is civil or natural. The fidejussor may even bind himself for a slave, and that, either to a stranger, or to the master of the slave, in respect of that which is due from the slave to his master. § 120. Besides the heir of a sponsor or fidepromissor is not bound by his act, unless the fidepromissor is a peregrinus the law of whose country holds him liable ; whereas the heir of the fide- jussor is equally bound with himself. § 121. Again, after the lapse of two years, the spomor or the fidepromissor is released by virtue of the lex Furia; and whenever GAIUS — THIED COMMENTARY. 305 IS the money is payable, and may be sued for, the amount divided into as many parts as there are sponsores or fldepromis- sores, and each is liable for his portion only; whereas ^^wssores are never released, and, whatever may be their number, each is liable for the whole amount. Consequently the creditor may demand the entire debt .from which of the fidejussores he thinks fit. By a rescript, however, of Hadrian, the creditor is bound to demand from each his share, provided that all are solvent. This rescript differs then from the lex Fun'a in this, that where any of the sponsores ov fidepromissores are insolvent the liability for their respective shares does not fall on the others. But as the lex Furia applies only to Italy, it follows that in the provinces sponsores and fidepromissores are, as fidejussores, liable in per- petuity and each for the whole, unless, indeed, they also are entitled to claim the benefit of the rescript of Hadrian. § 122. What is more, the lex Apuleia introduced a species of partnership between the spomoi'es and the fidepromissores. In fact, if either of them has paid more than his share he may maintain an action against the others for contribution. The lex Apuleia was enacted before the lex Furia, at a time when each was liable for the whole amount, whence it is a question whether since the lex Furia advantage can be taken of the lex Apuleia : there is no doubt that it is in force outside Italy, because the lex Furia only applies to Italy, whereas the lex Apuleia extends to the whole empire. In the case of fidejussores the matter is different, for the lex Apuleia does not apply to them ; con- sequently, when a creditor has obtained the whole of his debt from one of the fidejussores, that fidejussor must bear the entire loss, should the person he has guaranteed prove insolvent : it is his own fault if he i^ays in full, for, as already said, when the creditor demands from him the whole amount he may avail him- self of the rescript of Hadrian, and require that the claim against him shall be limited to his share. § 123. Furthermore by the lex . . . .it is provided that the creditor who obtains sponsores, or fidepromissores, shall make a public declaration as to the nature of the matter for which he requires sureties, and shall state how many sponsores or fide- promissores he requires ; and in default of such declaration, it is N. X 306 OUTLINE OF KOMAN HISTOEY. lawful for tlie sponsores or fidepromissores to require witliiii thirty days a preliminary inquiry as to wlietlier the requisite declaration has been- made, and, upon proof that it has not, to be adjudged free from all liability. This law makes no mention of fide- jimsores ; it is, however, usual to make the like declaration in their case. ' § 124. The benefit of the lex Cornelia extends to all sureties. This law forbids any one to become surety for the same debtor, to the same creditor, in the same year, for a loan {peeunia credita) exceeding 20,000 sesterces, and enacts that if the sponsor, or fidepromissor, does become surety for a larger sum, e.g., 100,000 sesterces, he shall not be liable beyond 20,000. We understand by borrowed money {peeunia credita) not merely that which is actually lent, but the whole amount which at the date of the contract it is certain will become due, i. e., everything included unconditionally. Thus, whatever we stipulate shall he paid on a given date is so regarded, because it is certain that it will then be due, though there may be no right to demand it before. The word "peeunia " in this law designates all things ; consequently, when we stipulate eoncemiag wiae, or com, or even land, or a slave, the requirements of this law must be observed. § 125. However, in certain cases, this law permits the taking of security for undefined amounts, e. g., it is lawful to take security for dower, or for whatever may come to one by testament, or for -whatever may be adjudged due by a judge ; and further, it is provided by the lex Julia (a.d. 6), which imposes a duty of one- twentieth on testamentary successions, that the securities thereia required shall be excepted from the scope of the lex Cornelia. § 126. Sponsores, fidepromissores, and. fidej'ussores are also on an equality in this : they cannot make their obligation greater than that of the person for whom they have become surety, though they may make it less, as we have already explained is the case with adstipulatores, for their obligation, like that of adstipulatores, is accessory to the principal obligation, and the accessory oaimot exceed the principal. § 127. They also resemble each other in this : if either satisfies the debt he may maintain an actio mandati against the GAICS — THIKD COMMENTARY. 307 debtor to recover the amount. By the lex Puhlilia, the sponsores have an action peculiar to themselves for douhle the amount, styled actio dispensi. XV. De Litterarum Obligatione. §128. The contract " litteris" arises in the case of nomina transcripticia. A nomen transcripticium is made in two ways, either from thing to person, or from person to person. § 129. It is made from thing to person when, for example, I have placed to your debit the amount you owe me for a sale, a letting, or a partnership. § 130. It is made from person to person when I place to your debit the amount owed to me by Titius ; i. e., when Titius has substituted you for himself as my debtor. § 131. It is otherwise in the case of those nomina termed arcana, for in those the obligation springs re, not litteris ; inas- much as the obligation does not arise till the money has been paid, and the paying over of money constitutes an obligation re, not litteris. We may with reason say that the arcaria nomina do not create an obligation, but merely furnish evidence of an obligation previously created. § 132. Consequently it is correct to say that even the peregrini are bound by nomina arcaria, because they are bound, not by the entry (nomen), but by the payment, for this species of obli- gation belongs to the jtcs gentium. § 133. But are the peregrini bound by nomina transcripticia ? It is doubted, and with reason, for such obligations are in a certain sense creatures of the civil law. That was the opinion of Nerva. Sabinus and Oassius, however, thought that when the entry was from thing to person, the peregrini were bound, whereas, when it was from person to person, they were not. § 134. Besides, an obligation litteris appears to be contracted when a document is signed by a debtor only {chirograph), or by both debtor and creditor {syngraph), that is to say, when any one states in writing that he owes, or that he will give, provided there be no stipulation made concerning the matter. This species of obligation is peculiar to the peregrini. x2 308 OUTLINE OF ROMAN HISTORY. XVI. Be Consensu Ohligatione. % 135. In the case of pvircliase and sale, or letting and hiring, partnership, or mandate, the ohHgation is contracted by the mere agreement of the parties. § 136. It is said that in all these cases the obligation is con- tracted by consent, inasmuch as no particular form of words or writing is required, the consent of the parties to the transaction being sufficient. Such engagements may be contracted by persons living at a distance from each other, for example, by letter or messenger; whereas the obligation verbis cannot be contracted with the absent. § 137. So, in these contracts, each party is bound to do all that equity demands ; whereas, in the obligation verbis, the one stipulates and the other promises ; and in the obligation liUeris, by entering a sum as due, the one obliges and the other is obliged. § 138. By placing an amount to the debit of a person not present, he may be bound litteris ; whereas the obligation terbis cannot be contracted with one who is not present. XVII. Be Emptione et Venditione. % 139. The contract of purchase and sale is concluded as soon as the price is agreed on, though the amount be not paid, or even earnest money not paid. Anything given by way of earnest is only evidence of a contract of purchase and sale having been entered into. § 140. The price ought to be determined (cerium esse debet). If, for instance, the parties agreed, the one to sell and the other to buy a given thing at the price Titius should fix on it, Labeo says that such agreement would have no legal force, and Oassius is of the same opinion. Ofilius, however, contends that such an agreement would be a contract of sale and purchase, and his opinion has been adopted by Prooulus. § 141. Furthermore, the consideration or price must be money. Coidd it consist of anything else ? Could, for example, a slave, a garment, or a plot of land be the price of any other object ? That is a question that has been warmly debated. Our masters contend that the price need not necessarily be money. Hence GAIUS a'HlKD OOMMEM'AKY. 309 the oommon notion that the contract of purchase and sale can be effected by exchange, and that this species of contract is the most ancient. They, indeed, quote in support of their conten- tion a passage from the Greek poet Homer, who somewhere says : — " Here touched Aohseau barks in quest of wine : They purchased it with copper and wilh steel, With hides, with homed cattle, and with slaves." The authors of the other school entertain a different view, and contend that exchange is one thing, and purchase and sale another; otherwise, say they, it is impossible to determine between the things exchanged, which of them is to be considered sold, and which given as the price, and, on the other hand, that it would be absurd to consider each thing as being at the same , time the thing sold and the price. Cselius Sabinus, however, says, " If Titius has a thing to sell, c. g., a plot of land, and I take it from him and give him, e.g., a slave as the price, the plot of land would be considered the thing sold, and the slave the price paid for the land." XVIII. De Locatione et Condudione. % 142. The contract of letting and hiring is governed by similar principles, for unless the amoimt of the rent is deter- mined there is no contract of letting and hiring. § 143. "When one has agreed to let to another, and both have agreed that the amount of the rent shall be detemuned by, say, Titius, it is asked; — Can that agreement be called a contract of letting and hiring ? Or if I give garments to a fuller to be smoothed and cleaned, or to a tailor to be repaired, the terms not being settled at the time, but it being my intention to pay him what we may hereafter agree on, is there a contract of letting and hiring ? § 144. Or i£ I hand something to you to be used by you, and you at the same time hand something to mo to be used by me, is that a contract of letting and hiring ? § 145. The contracts of purchase and sale, and of letting and hiring, have so much in common, that in some cases it is doubtful whether the transaction amounts to a contract of purchase and sale. 310 ■ OUTLINE OF KOMAN HISTORY. or to a contract of letting and hiring, e.g., wten a thing is let in perpetuity, as in the case of city corporation lands which are let •with a clause in the agreement, that so long as the rent is paid the land shall not he taken from the tenant or his heir. The prevalent opinion is, that it is a letting and hiring. § 146. So, if I have handed over to you gladiators on the condition that for each of them that comes safely out of the comhat you shall give me 20 denarii for his exertions, and for each that shall he killed or wounded you shaU give me 1,000 denarii, is that a sale or letting ? The opinion generally favoured is, that as to those who return intact it is a case of letting and hiring, whereas, as to those who are killed, or wounded, it is a case of purchase and sale : that, in short, it is the event that decides which it is in respect of each individual, as each has heeu let or sold on condition, for it is no longer disputed that a thing may he the suhject either of sale, or hire, on condition. § 147. So when I agree with a-goldsmith that he shall make me certain rings of a given weight and form with his own gold, and that he shall receive from me, say 200 denarii, is that, it is asked, purchase and sale, or letting and hiring ? Cassius says that it is sale of the material and hire of the lahour. But the majority maintain that it is purchase and sale. If I had supplied the gold to the goldsmith, it is admitted by all, that the agree- ment as to what he should he paid for his lahour would he a contract of letting and hiring. XIX. De Sodetate. % 148. We contract a partnership either as to our affairs in general, or as to one particular matter, e.g., slave dealing. § 149. There was a grand discussion as to whether a partner- ship could be so contracted as to allow one of the partners to take a larger proportion of the gains than he bore of the losses. Qruintus Mucins maintained that such a provision was opposed to the very nature of partnership. On the other hand, Servius Sidpicius, whose opinion has prevailed, was so satisfied that such a partnership could be contracted, that he said there was no reason why it should not he agreed that one of the partners should not bear any of the losses though he should participate' GAIUS THIRD COMMENTARY. 311 in the profits, provided his personal services were of such value to the firm as to render such an agreement equitable. There can be no doubt that a partnership may be entered into on the terms that one shall find all the capital, but that the profits shall be equally divided between them, for it frequently happens that the services of the one are as valuable to the firm as is the money of the other. § 150. It is clear that, when no special arrangement has been made as to the division of profits and losses, tiiey are divisible equally ; and, when the share of each has been agreed on in the one case, e.g., the profits, and no mention made as to losses, they will be borne in the like proportion. § 151. A partnership subsists .so long as the partners agree to continue partners, but the resignation of one dissolves the partnership. But, should the retiring partner have retired for the express purpose of securing to himself alone some particular benefit, e.g., assuming him to have entered into partnership with me as to our affairs in general, and finding that he was about to inherit a valuable estate, he dissolved partnership in order to get the whole estate to himself, he would be compelled to bring that estate into the partnership account; but should he receive a windfall that he had not anticipated, the benefit of it would be his alone. AH that I acquire after his retirement belongs to me. § 152. Partnership is also dissolved by the death of one of the -partners, because he who contracts a partnership selects as his associate a particular individual. § 153. It is also said that a partnership is dissolved by a capitis diminutio of either of the partners, because, as a principle of the civil law, capitis diminutio is held equivalent to death. If the partners consent to remain associated as partners, a new partnership is in effect created. § 154. So, if the property of one of the partners is sold, to satisfy public or private creditors, the partnership is thereby dissolved, but in this case also a new partnership may be entered into between the same persons, for partnership is contracted by consent ; the relationship belongs to ihsjus gentium, and natural reason tells us that all men can consent. 312 OUTLINE or llOMAN HISTOKY. XX. Be Mandaio. § 155. When we give instructions' to another, whether as to our own affairs, or as to those of a third person, we enter into the contract styled mandatum. If then I direct you to attend to my affairs, or to the affairs of another, obligations are imposed on hoth of us, and we are bound the one to the other, to do, each for the other, aU that good faith demands. § 156. But if I commission you to attend to your own interests, my mandate -is superfluous, for what you do for your- self is the result of your own determination; it is not my mandate that you obey. If then you tell me that you have money at home lying idle, and I advise you to put it out at interest, though you may lend it to some one from whom you cannot recover it, you cannot maintain an action of mandate against me. So if I have advised you to buy a certain thing, though the purchase may not have proved to your advantage. This proposition is so incontestable, that it was questioned whether you could maintain an action of mandate against one who instructed you to lend money on interest to Titius ; but the affirmative has prevailed, because it is held that you would not have lent the money to Titius if you had not received the mandate to do so. § 157. It is clear that a mandate to do an immoral act does not create an obligation, e.g., if I order you to rob, or injm'e Titius. § 158. So a mandate, to do something after my death, is void, because it is generally admitted that a successor cannot be the original subject of an obligation. § 159. A valid mandate may be revoked before it has been acted on. § 160. So the death of either of the parties, prior to action taken on the mandate, revokes it ; but convenience has intro- duced the rule that, if after the death of him who gave me a mandate, I, being ignorant of the fact of his death, execute the mandate, I can maintain an action of mandate ; otherwise, -ray actual and excusable ignorance would damnify me. By parity of reasoning, it has been decided that if my debtor, in error, pays to my steward, after I have manumitted him, what he owed me, the debt is discharged, though, according to the strict GAIUS — THIRD COMMENTARY. 313 letter of tlie law, it is not, tlie dettor not having paid the person he was bound to pay. § 161. When the person to whom I have given a valid man- date deviates from his authority, I can maintain against him an action of mandate for the damage sustained by me by reason of his deviation, provided always that it was possible for him to execute my mandate. He has no action against me. If, then, I have given you a mandate, e.g., to buy a plot of land for me for 100,000 sesterces, and you have bought it for 160,000, you have no action against me, even if you are willing to let me have the land for the sum I authorized you to pay for it : this was the decided opinion of Sabinus and Cassius. But, if you have bought it for a less sum, you wiU doubtless have an action against me, because he who authorizes a purchase at 100,000 must be taken to have authorized a purchase at a less sum if possible. § 162. In conclusion, it must be observed that whenever I hand over anything to be worked on without discussing the question of remuneration — which act, had I agreed a price, would have constituted a contract of letting and hiring — an action for mandate lies, e.g., if I give garments to a fuller to be smoothed and cleaned, or to a tailor to be repaired. XXI. Per qiias Personas nobis Obligatio acqiiiratur. § 163. Having expounded the different kinds of obligation that spring from contracts, we must here observe, that we acquire, not only by ourselves, but also by those whom we have in potestate, in manu, or in mancipio. % 164. "We also acquire through the instrumentality of free- men, and the slaves of others whom we bona fide possess, but only in two cases, viz., when the acquisition is the result of their labour, or the fruit of our property. § 165. In those two oases, also, we acquire through the slave of another of whom we have but the bare usufruct. § 166. He who has simply the Quiritarian property in a slave, though he is his proprietor, is, however, deemed to have inferior rights to him who has the usufruct, or who is the bona fide possessor ; for it has been held that the slave can in no case 314 OUTLINE OF ROMAN HISTORY. acquire for him ; in short, some authors are of opinion that even should the slave have expressly stipulated for his Quiritarian owner by name that something should be given to him, or have received something in his name in mancipium, no acquisition would thereby be made by him. § 167. It is certain that a slave jrho is the property of more than one master acquires for his several masters in the propor- tion of their respective interests in him : however, when stipu- lating, or receiving iii mancipium for one of them by name, he acquires for him alone, e. g., when he stipulates thus : " Do you promise to give to Titius my master ? " or, when he receives in mancipium, thus : " I declare that this thing belongs, ex jure Quiritium, to Lucius Titius my master ; and be it bought for him by this brass and with these scales." § 167a. It is questionable, whether the fact of a command having been given by one particular master has the same effect as the mention by the slave of his name. The leaders of our school are of opinion that the acquisition is made for the master who gave the order, just as it would be if the slave had stipulated, or received in mancipium, in his name. The authorities of the other school contend that the acquisition is made for the benefit of all, just as if no order had been given by any one. XXII. Quihus Modis Obligatio tollafur. § 168. An obligation is dissolved, primarily, by the payment of that which is due. It is matter of discussion whether a debtor, who, with the consent of his creditor, pays one thing instead of another, is discharged according to the strict letter of the law, as our masters contend ; or whether he, in law, remains bound, though able to defend himself by an exceptio doli, as is contended by the authorities of the other school. § 169. An obligation may also be dissolved by acceptilatio, Acceptilatio is a species of imaginary payment. Thus, if you wish to remit what I owe you by a contract verbis, you can do so by permitting me to say, " Will you acknowledge as received what I promised to give you P " you replying, " I do." § 170. No contracts other than those contracted verbis can be GAIUS — THIRD COMMENTARY. 315 dissolved in this manner. It appeared reasonable, that that which has been contracted by word of mouth, should be dis- soluble by word of mouth. That, however, which is due from any other cause may become the subject of a stipulation and be dissolved by acceptilatio. § 171. Without the authorization of her tutor a woman cannot make an acceptilatio, though an actual payment may be made to her without his authorization. § 172. Part payment of a debt may be made, but whether there can be acceptilatio as to part is doubtful. § 173. There is another species of imaginary payment, viz., that made per ces et Kbram. It, like the other, is only valid in certain cases, e. g., when the obligation has been contracted per ws et lihram, or results from a Judgment. § 174. In this case there must be at least five witnesses and a lihripens. In addition to which the person to be released from his obligation must say, " Inasmuch as I am bound to you in so many thousand sesterces by reason of nexum, I now pay you and discharge myself by means of this coin and copper balance. I have struck the scales once for all, and my obligation is at an end." He then strikes the scales with the coia, after which he hands it to the person, by whom he is released, iu token of payment. § 175. In this way a legatee releases the heir from payment of a legacy left him by damnatio, provided only that, in like manner as a judgment-debtor admits himself bound by the sentence of the court, so must the heir of the deceased admit himself bound by a judgment. This method of discharge only applies when the obligation is to deKver something that may be weighed or counted, and when the quantity is determined; some thiak that it is applicable in the case of things measurable, provided the thing be definite. § 176. An obligation may also be dissolved by nomtio, e.g., if I stipulate with Titius that he shall hand me the sum you owe me. For, by the intervention of another person, a new obli- gation is created, and, the first being merged in the second, it is extinguished. Sometimes, even though the second stipulation may be void, the first nevertheless perishes by the law of nova- 316 0UTL1>E OF ROMAN HISTORY.. tion ; e.ff.,iil stipulate with Titius that after his death he shall pay me the amount you owe me, or with a female, or with a pupil without the authorization of the tutor : in either case I lose what is due to me, for the original dehtor is discharged, and the second agreement is void. It is otherwise if I stipulate with a slave, for in that case the , original dehtor remains bound as completely as if I had not subsequently stipiilated with another. § 177. If I stipulate with the person with whom I had origi- nally contracted, there is no novation, unless something new is introduced into the second contract, e.g., if I add or remove a condition, or a sponsor, or a term. § 178. However, what I have said as to the sponsor is not quite clear, for the authorities of the other school contend that the addition or removal of a sponsor does not create a novation. § 179. When it is said that the addition of a condition creates a novation, it must he understood that we intend that it does so when the condition is fulfilled ; if it is not, the original obliga- tion stands. But let us see whether, in the event of the stipu- lator suing on the obligation, he could be defeated by the exceptio doli malt, or pacti conventi. The agreement between the parties appears to be that the thing stipulated for should not be demanded till the happening of the condition mentioned in the second stipulation. However, Servius Sulpicius thought that the novation takes effect immediately, i.e., the moment the second stipulation is made, while the condition is still in sus- pense, and consequently, should the condition never happen, no action could be taken on either stipulation, and that the debt was gone. Consistently with that theory, he held that if any one stipulates with a slave for that which Lucius Titius owes to him (the stipulator), the stipulation works a novation, and the debt is lost, for no action will lie against the slave. In each case, however, our authorities adopt a different view, and say that a novation no more takes place in either of those cases than it would should I, in stipulating with a peregrinus, employ the word " spondes," there being no sponsi communio between us. § 180. An obligation is also dissolved by the Ms contestatio, provided always that. the plaintiff has sued Iegifimojvdicio,ioV' GAIUS— THIRD COMMENTARY. 317 in that case the original obligation is extinguished, and the de- fendant becomes bound by Tii'tue of the litis contestatio, and, should he be condemned, the litis contestatio in its turn merges in the judgment by which he is bound. This is the meaning of our old authorities when they say, " Before the litis contestatio, the debtor ought to convey ; after the litis contestatio, he ought to submit to award ; after the condemnatio, he ought to do what he has been adjudged to do." § 181. Hence it foUows, that if I sue for a debt legitimo judicio, I cannot afterwards, by the letter of the civil law, main- tain another action for the same debt, for it would be idle for me to aver that " it ought to be given to me," inasmuch as, by the litis contestatio, the defendant has ceased to be bound to give. It is otherwise if I proceed by action founded on the imperium, for in that ease the obligation still remains, and con- sequently, strictly speaking, I may maintain a second action ; but then I should be met with the plea {exceptio) of rei judicatm, or in judicium deductw. In the next commentary, we will state what actions are legitima judicia, and what are founded on the imperiimi. XXIII. De Obligationibiis qiice ex Delicto nascuntur. § 182. We will now pass to obligations ex delicto, for instance, where a theft has been committed, or goods have been carried off by force, or damage inflicted, or an injury done. Each and all of these acts create but one species of obligation, whereas, as we have already explained, obligations ex contraciu are divided into four classes. XXIV. BeFurtis. % 183. Servius Sulpicius and Masurius Sabinus maintain that there are four kinds of theft : viz., manifestum, nee mani/estiim, coneeptum, and ollatum. Labeo contends that there are but two, viz., manifestum and nee manifestum, for he says that coneeptum and ohlatum are rather kinds of actions arising from theft ; which certainly seems the better view, as will appear hereafter. § 184. According to some authors furtiim manifestum is theft that is discovered at the time it is committed. Others have gone 318 OUTLINE OF ROMAN HISTORY. further, and held that it is theft that has heen discovered in the place where it was committed, e. g., if a theft of olives is com- mitted and discovered in an olive grove, or of grapes in a vine- yard, while the thief is there, it is manife&tum ; or if a theft be committed, in a house, so long as the thief is in the house. Others go further, and say that itis manifestum till the thief has succeeded in depositing the thing stolen in the place where he intended to deposit it. Others go stiU further, and say that it is manifestum whenever the thief has been seen in the possession of the stolen property. But this last contention has been dis- carded. The opinion also that a theft is manifestum, provided it is discovered before the thief has succeeded in depositing the stolen property where he intended to deposit it, has also been rejected, because it gave rise to doubt as to whether in respect of time the discovery was limited to one day, or extended to several ; for the thief, having committed the robbery in one city, may intend to convey the stolen property to another city, or to another province. We are therefore limited to the first two opinions. Each has its supporters; the majorityj however, prefer the second. § 185. From what has been said concerning /i«'^?«» man j^es^2«w, it is easy to conclude what is intended by the expression furtum nee manifestum, for theft that is not manifestum must be nee manifestum . § 186. Theft is styled conceptum when the stolen property has been sought for, and found in the presence of witnesses in any one's possession ; in which case, though the person in whose pos- session the stolen property is found may not be the thief, yet a particular action lies against him, styled the actio concepti. § 187. Theft is called oblatum when stolen property has been transferred to you and has been found in your custody, provided it was transferred to you with the intention that it should be discovered in your possession rather than ia the possession of the person who transferred .it to you. In that case, as against the person who transferred the stolen property to you, though he may not be the thief, you have a particular action styled an aetio oblati. § 188. The action styled actio prohibiti furti lies agaiast GAIUS^THIKD COMMENTARY. 319 any one who offers resistance to any one wishing to search for stolen property. § 189. By the Twelve Tables furtum manifestum entailed capital punishment. When the thief was a freeman, after having been scourged, he was adjudicated to the person he had robbed, but whether he thereby became his slave, or was merely adfudicatus, was not settled by the ancients. A slave found guilty of furtum manifestimi was first scourged, and then hurled from a rock. At a later date the severity of the punishment was disapproved of, and, by an edict of the praetor, an "action to recover four times the value of the stolen property was substituted, whether the thief was a freeman or a slave. § 190. In the ease oi furtum nee manifestum, the Twelve Tables enacted that the thief should forfeit a sum equal to double the value of the property stolen, and the prsetor has adopted the rule. § 191. By the Twelve Tables, the penalty in the case of conceptum and oblatum was the treble value ; this also has been retained by the prsetor. § 192. The penalty in the case of the actio prohibiti has been fixed by a praetor's edict at quadruple the value. The law has not enacted any penalty in that case; it simply provided that he who desired to make the search should do so naked, girt with a linteiim, and holding a dish in his hand, and that in the event of his thus discovering the stolen property, the theft should be declared manifestum. » § 193. There has been considerable discussion as to what is to be understood by the term " linteum," but the better opinion is that it was a species of girdle with which the private parts were covered. The whole of this provision of the law is ridiculous, for he who would resist search being made by a man in his ordinary clothing would do so if he were naked, and especially if the discovery of the property under those circumstances would subject him to heavier penalty. When the law ordained that the searcher should hold a plate in his hand, whether to prevent his concealing anything in his hand, or that he might place the stolen article, if found, on the plate, neither reason could apply should the article sought be of such diniensions or nature that it 320 OUTLINE OF ROMAN HISTORY. could not be coricealed in the hand or placed on the plate. One thing, however, is undisputed : the law was satisfied, whatever might be the material of which the plate was made. § 194. Inasmuch as the law says that under these circumstances the theft is inanifeshmi, some writers have said that/«w^««re mani- festum is of two kinds, i. e., in law ajid in fact. Furtum mani/estum in law is that theft of which we have just been speaking. Furtiim mani/estiim in fact is that of which we treated previously. It is, however, more accurate to say that fitrtum nianifestum must exist, if at all, in fact, for the law cannot make that mani/estum which is not manifestiim, any more than it can make that theft which is not theft, or that adultery or homicide which is not adultery or homicide. But the law can do this : it may make a man liable to punishment as if he had committed a theft, or had been guilty of adultery or homicide, though he had not com- mitted either of those wrongs. § 195. Theft is committed, not merely by the taking of the property of another with the intention to appropriate it to the use of the taker, but, in general, by the disposing of property contrary to the will of the proprietor. § 196. If, then, a person appropriates to his own use the pro- perty of another deposited with him for safe keeping, he commits a theft ; so, if one has received an article to be used by himself in one manner, and he appropriates it to another iise, the actio ftirti wiU lie against him ; e.g., if one borrows silver plate for the alleged purpose of entertaining guests, and carries it with him on a journey ; or if he borrows a horse for a short ride, and takes it for a long one, or, as the ancients had it, takes it into battle, the action will lie against him. § 197. It has been decided, however, that one who converts property to a use different from that for which he received it, does not commit a theft, unless he does so knowing that he acts contrary to the wUl of the owner, and that, had the owner known it, he would not have permitted it. If, however, he was of opinion that the owner would have sanctioned the particular use, he is not guilty of the crime of theft. The distinction is just, for theft cannot be committed without fraudulent intent {doh nialo). GAIUS — THIRD COMMENTARY. 331 § 198, WHen one uses the property of another in a manner ■which he supposes to be contrary to the will of the owner, hut which in fact is not contrary to his will, it is said that no theft is committed. Here is a question :— Titius solicits my slave to steal from me a certain article, and to take it to him ; my slave teUs me of it, when, for the purpose of catching Titius flagrante delicto, I permit my slave to take the article to Titius,— Can I maintain against Titius either an action of theft, or for the corruption of my slave ? It has heen said that neither action can he maintained against him : — that theft will not lie, because he did not possess himself of my property contrary to my wiU ; and that an action for corrupting my slave cannot be main- tained, because the slave was not in fact corrupted. § 199. A theft may even be committed of free persons, for example, if one carries off children who are in my potestas, or my wife who is in manu, or my judgment debtor, or one who has engaged himself to me as gladiator. § 200. Sometimes a theft is committed by one of his own property, for example, if a debtor subtracts from his creditor that which he has deposited with him as security, or if I take my property from one who has the possession of it bond fide ; whence it has been concluded that he who conceals his own slave, that was lond fide in the possession of him from whom he escaped, commits a theft. § 201. On the other hand, we may, under certain circum- stances, take, and, by nsucapio, acquire the property in the goods of another without being guilty of theft ; for example, property belonging to an inheritance of which the heres necessariits has not taken possession, for where there is a heres necessariiis it is admitted that property may be acquired pro lierede by usucapio. In like manner the debtor who retains possession of the article that he has made over to his creditor as a pledge, whether by mancipatio, or cessio in jure, can, as has been stated in the previous commentary, without theft, acquire the property in the article by usucapio. § 202. A man may be liable to an action for theft without having himself committed a theft, when, by his assistanooj or N. Y 322 OUTLINE OF ROMAN HISTOKY. counsel, a theft has heen committed ; for example, the man who knocks your money out of your hand in order that another may pick it up, or he who places himself before you and preyents your passage while another robs you, or he who has frightened and started your sheep or your oxen in order that another may seize them ; our ancient authors "say, " or he who has scattered a herd of oxen with a red rag." But if these things are done wantonly, and not with the intention of facilitating a robbery, we must see whether an actio utilis would lie under the lex Aqinlia; for the lex Aquilia, concerning damage, makes one liable for the consequences of neglect. § 203. An action for theft {actio furti) may be maintained by any one who has an interest in the preservation of the property, even though he may not be the owner, but it cannot be main- tained' by the owner, unless he at the same time is interested in the preservation of the thing. § 204. Hence, a creditor could maintain the action against the person who abstracted his pledge, even should that person be the owner, that is to say, the debtor. § 205. So, if a fuller has received a garment to press or clean, or a tailor one to repair, for a certain reward, and it has been stolen, it is he who has the right of action, and not the owner, because the owner has no interest that the thing should not perish, inasmuch as by the actio locati he can recover from the fuller, or tailor, an indemnity, assuming that the fuller, or tailor, is in a position to give it ; if, however, he should be insolvent, then, as the owner could not recover the value from the fuller, or tailor, he would be entitled to maintain the action of theft against the thief, for he would in that case be interested in the preservation of the article. § 206. What we have said concerning the fuller and tailor applies equally to the borrower ; for, as the former, by receiv- ing hire, becomes responsible for the safe custody, the borrower, by enjoying the .use of an article, becomes in like manner responsible. § 207. A mere bailee is only responsible for his own wrong. If, therefore, the article deposited with him is stolen, he is not liable for it in an action of deposit, consequently, he has no GAIUS— THIRD COMMENTAKY. 323 kterest in the safety of it; he cannot therefore maintain an action of theft for its recovery, hut the owner may. § 208. It has heen asked whether an infant, who appropriates to himself the property of another, thereby commits a theft. The majority of our authors maintain, that as theft involves criminal intent, an infant does not inoUr the obligation, unless, by reason of the fact of his bordering on manhood, he com- prehends that he is committing a criminal act. XXy. Be Vi Bonorum Baptorion. § 209. He who possesses himself by force of the property of another is liable to the actio fiirti ; for, who can be said more obviously to possess himself of the property of another against his will than he who takes it by violence ? In fact, it has been said, and with reason, that the only difference between him and an ordinary thief is, that he is the more criminal of the two ; he has consequently been styled an iirnwobus fur. However, the praetor has instituted a special action for this species of wrong, which is called the actio vi bonorum raptorum. If the action is brought within one year of the date of the forcible taking, the injured may recover four times the value of the property seized ; if he allows a year to elapse before bringing his action, he can only recover the actual value of the property taken. This action lies when a single thing only has been seized, and even when the value of that thing may be but very httle. XXVI. Be Lege Aquilid. § 210. The action damni injurke (unlawful damage) was estabHshed by the lex Aqmlia, in the first clause of which it is provided that he who unlawfully kills the slave of another, or an animal included in the category of cattle, shall be condemned to pay the highest value that the slave or beast had during that year. § 211. The killing is considered unlawful when it is the consequence of dolus (malice.) or culpa (negligence). The law does not give any redress for damage caused without injuria; therefore he who occasions a loss to another by accident, there y2 324 OUTLINE OF EOMAN HISTORY. being neither malice nor negligence on his part, goes un- punished. § 212. In the action derived from the lex Aquilia, the measure of damage is not the actual value merely of the slave or beast destroyed, but the loss sustained by the owner by reason of the death; for example, if my slave had been instituted heir by any one, and -was killed before making, by my order, cretio of the inheritance ; for not merely his value, but that of the inheritance lost, is taken into consideration. So if one of a pair of slaves, or one of a troupe of comedians or musicians, is killed, to his value must be added the depreciation of the value of the survivors by reason of his death. The same rule applies when one of a pair of mules or of a team of horses has been killed. . § 213. The owner of the slave may either proceed against the murderer criminally, or may sue him for damages under this law. § 214. The insertion in the law of the words " The highest value the thing has had within the year " has this effect : — ^If a lame or one-eyed slave is killed, whose infirmity was not of a year's standing at the time of his death, the damages recover- able are not his value at the time of his death but his highest value during the year, the result beiag that one sometimes recovers more than he has lost. § 215. The second clause of the lex Aquilia gives a right of action against an adstipulator who has given aceeptilatio in fraud of his stipulator for the value of the subject-matter. § 216. That this section of the lex Aquilia gave an action to recover compensation for damage done is evident ; the provision, however, was unnecessary, iaasmuch as the actio mandati sufficed for this purpose. By the lex Aquilia, however, the injured can recover the double value from any one who wrongfully denies liability. § 217. The third section of the lex Aquilia embraces all other kinds of damage, e.g., the wounding of a slave, or quadruped included under the name of cattle, or a quadruped not included in that class, such as a dog, or a wild beast, bear, or lion. It not only includes actionable damage done to any other species of animal, but to inanimate things. If anything is burnt or broken GAITJS THIRD COMMENTARY. 325 {npium), or shattered {fractum), this third section provides an action for the wrong done. The word r upturn includes damage of every kind ; it therefore includes burning, breaking, shatter-^ ing, tearing, bruising, spilHiig, tearing down, destroying, or deteriorating. § 218. For damage falling under this third section, the wrong- doer is only liable to the extent of the highest value the thing had during the preceding thirty days, not the preceding year. In fact the word plurimi (the highest value) is not used, for which reason certain authorities of the opposite school have contended that it is competent for the prsetor to insert in the formula any day he may think fit, provided it is one of the next preceding thirty. Sabinus, however, maintained that the clause must be read as if the -vroxd. plurimi was repeated in it, as the use of that word in the first section was intended by the legislature to be made once for all. § 219. It is admitted that no action will lie under the lex Aquilia for damage other than that directly inflicted by the wrong-doer {corpore suo). When the damage has been caused in any other way, utiles actiones are given : e.g., if one shut up the slave, or animal, of another, and left it to perish of hunger, or so overdrove a beast of burden as to cause its death; or if a man persuaded the slave of another to go up a tree, or down a well, who while ascending, or descending, fell and was killed, or hurt. If one has pushed the slave of another over a bridge, or bank, into a stream where he was drowned, it is clear that in such case the damage is direct, for he pushed the man in. XXVII. Be Injuriis. § 220. We do an illegal act not merely by striking another with the fist, or a stick, or lash, but in publicly using abusive language concerning him ; in declaring that his estate is for sale as if he were our debtor when we know that he does not owe us anything; in publishing a defamatory tract or verses concerning him, or by following about a chaste woman, or lad; and, in fact, in many other ways. § 221. We may sustain injury not merely in our own person, but also through children in our potestas, or through a wife, 3S26 OUTLINE OF ROMAN HISTORY. thougli not in manu. If, therefore, you injure my daughter who is married to Titius, the action will lie against you at the suit of either my daughter, Titius, or myself. § 222. In the case of a slave it is otherwise ; he is not con- sidered capable of sustaining an injury ; the wrong done is con- sidered as done to his master in the person of his slaye. We are not, however, supposed to receive injury through the person of a slave in every case in which, under similar circumstances, we should be regarded as receiving it through a child, or wife ; but only in cases where from the nature of the act it is evident that the insult was intended for the master ; for example, when the slave of another has been lashed. For that offence a formula has been expressly prepared. But, for the use of abusive language in public to the slave of another, or for the striking him with the fist, noformukc has been prepared, nor can one be easily obtained. § 223. By the Twelve Tables, the penalty for injuries was, in the case of a limb destroyed, retaliation ; for a bone broken or crushed, a fine of 300 asses ; for other bodily injuries in the case of a free man, 150 asses, in the case of a slave, 25 asses. In those days of great poverty, such sums appeared sufficient. § 224. We have now a different rule : we are allowed by the prsetor to estimate the damage we have sustained, and the judex condemns either at the sum claimed, or at such lower figure as to him may appear just. However, as it is customary for the prsetor to determine whether the injury is, or is not, atrocious (atrocem), should he at the same time have settled the amount of the vadimonium (security for due appearance), we insert that amount in the formula as the claim ; for though the judex may award a smaller sum, he seldom ventures to do so on account of the dignity of the prsetor. § 225. An injury is deemed atrocious, either from the nature of the act itself, e.g., if a man is wounded, flogged, or beaten with sticks by another ; or from the circumstances attending it, e.g., if the injury be inflicted in the theatre, or forum: so on account of the position in life of the person injured, e. g., if it is a magistrate who has been injured, or a senator insulted, by a low-bred person. ( 327 ) FOURTH COMMENTARY. DE ACTIONIBUS. I. Generally. § 1. If it is asked — How many kiads {genera) of actions are there? — the proper answer appears to he : — Two, -viz., actions in rem and actions in j^ersonam. Those who said that there are four, framed on the different classes of sponsiones, overlooked the fact that species form themselves into genera. % 2. An action is in personam whenever we sue any one who is hound to us, whether by virtue of a contract, or of a delict : that is to say, when we allege that he is bound to give {dare), to do {facere), or to guarantee {prcestare). § 3. An action is in rem when we allege that a given corporeal thing is ours, or that we have a certain right ; e.g., the right of using, or the right of using and enjoying the fruits, or the right of going across a particular place, or the right of driving cattle across it, or the right of drawing water from it, or the right of building on it, or the right of light and prospect. In either of which cases the action brought by the opposite party to stop the exercise of our alleged right is also an action in rem, but is negative. ' § 4. The different classes of actions being thus distinguished, it is clear that we cannot sue another for the recovery of our own property in these terms : — " If it appears that he ought to give," for that which is ours cannot be given to us. That only is given or reputed to be given to us which by the act of tradition becomes ours, and that which is ours cannot become more ours. Nevertheless such is the detestation of thieves, that in order that they may be made liable to a greater number of actions, it has been held that in addition to the penalty of double, or quadruple, as the case may be, they, to enable the owner to recover his stolen property, shall be liable to an action 328 OUTLINE OF ROMAN HISTORY. in these terms, " If it appears that lie ought to give," (si paret eum dare oportere), notwithstanding that an action lies against them by which we can lay claim to the thing stolen as being our own. § 5. Certain actions m rem are styled undicationes, whereas actions in personam in which we assert that something ought to be given or done we style condictiones. § 6. We sometimes sue for the recovery merely of the given thing; at others, to recover the penalty; and again, at others, to recover both the thing and the penalty. § 7. We sue to recover the thing itself just as if our action were ex contractu. § 8. We sue to recover the penalty merely, e.g^hj the actio furti, or by the actio injuriarum, and, in the opinion of some, by the actio m bonorum raptorum ; for, as to the thing itself, we have our remedy by mndicatio and condictio. § 9. We sue for the thing itself and the penalty in cases where, e.g., we claim the double value against one who denies our right, as in the actions judicati, dispemi, damni injuria?, under the lex Aquilia, and in the case of legacies of specific things left per damnationem. II. Legis Actiones. § 10. There are, moreover, some actions which are formed on the model of a legis actio, and others which have an iadependent existence and force. To make this clear we must ia. the first instance treat of the legis actiones. § 11. The actions in use in the time of the ancients were styled legis actiones, either because they were enacted by the leges, for, in those days, the edicts of the praetors to which many actions owe their origin were not in existence ; or because they were adapted to the words of the leges, and their terms were adhered to as rigidly as those of the leges themselves. Hence, when in an action brought for cutting down vines, the plaintiff, m his plaint, used the word " mtes" instead of " arhores," it was held that the action must be dismissed, as " arhores" is the word used in the law of the Twelve Tables concerning cutting down trees in general, and upon which the action was founded. GATUS — FOUKTH COMMENTARY. 329 § 12. There were five forms of the legis actio, ■viz., scccramentum , jndicis postulatio, condictio, manus injecUo, sluA pignoris captio. III. Sacramentum. § 13. The actio sacramenti was general, and was used whenever the law had not expressly provided another form. This form of action was as perilous for the party in the wrong as is our present actio certce credifw pecunice, on account of the sponsio, the risk of which was run by the defendant who defended vexa- tiously, and on account of the restipulatio, the risk of which was run by the plaintifi who made an unfounded claim. The un- successful party forfeited the amount of the sacramentvm to the public treasury by way of penalty, for the securing of which sureties were given to the prsetor ; whereas, now, the penalty of the sponsio and the restipulatio goes to the successful party. § 14. The amount of the sacramenhtm was either 500 or 50 asses— 500 when the value of the subject-matter in dispute was 1,000 asses, or more ; 50 when its value was below that amount. Such were the provisions of the Twelve Tables. But if the matter in question was the liberty of a man, though the man might be of the greatest value, yet it was provided by the same law that the sacramentum should be 50 asses. The object being that the mndex or asserter of liberty should not be fettered by the necessity to find security for a heavy amount .... § 15 to come and receive a judex. The litigants having presented themselves at the time stated, a judex was assigned to them, in compliance with their request, from the numbers of the decemvirs, to take the case thirty days after, according to the provisions of the lex Pinaria. Before the passing of that lex it was not the practice to assign a judex. We have abeady said that i£ the value of the matter in dispute was less than 1,000 asses, the sacramenkim was 50 and not 500 asses. When, however, it became the practice to assign a judex, the parties gave each other notice to appear before him on the next day but one. When, then before him, each party stated the points of his case, this was termed the caiisce colleetio, i.e., a short outline of the case of each. § 1&. If the action was in rem for a movable or moving 330 OUTLINE OF ROMAN HISTORY. thing that could he hrought into court, the thing itself was brought before the judex, and was there claimed m. the follow- ing manner : — The claimant, holding a wand, laid his hand on the thing claimed, for example, a slaye, and said, '[ I declare this man to be my property ex jure Quiritium in accordance with his status {secundum suam causam) as I have declared it." Then, touching him with his wand, he said, " See, I lay my wand upon him." His adversary, in his turn, employed the same words and acts. Each having thus asserted his claim, the prsetor said, " Let go the man, both of you {Mittite ainbo homwem)." Where- upon each did so. He who had first asserted his claim then said to the other, " State the grounds of your claim." The other replied, " I have satisfied the law, having placed my rod upon him." Then the first claimant said, " Mark you, as you have made an unjust claim, I challenge you to deposit 500 asses." His adversary then said, " I too challenge you." The asses thus deposited were styled the sacrcmicntum. The remain- ing formalities were the same as those used in an action in personam ; the praetor then assigned the vindicim to one of the parties, i.e., he gave to one of them the interim possession of the subject of the litigation, ordering him at the same time to give sureties litis et vindicianim, i. e., for the thing ia dispute and the ' mesne profits, or the value of the iaterim possession, iu the event of losing the case. The prsetor also took other sureties for the sacramentum from each party, inasmuch as that went to the treasury. The wand was used instead of the spear — the emblem of legal title — for, in the estimation of the ancients, no title was more, indefeasible than that of capture from the enemy. This is the reason why the spear is set up in front of the courts of the centiimviri. § 17. If the nature of the object in dispute was such as to prevent its being brought into court without inconvenience — for instance, if it were a column, or a herd of cattle — some portion was taken into court, and the claim was made upon the part in the name of the whole. Thus, in the case of a herd, one sheep, or one goat, out of the flock, was led into court;, or, perhaps, a lock of wool merely taken from one of the beasts ; whilst, from a ship, or a column, a portion was broken off ; so if the matter UAirs — FOUKTH COMMENTAEY. 331 in dispute was a field, or a house, or even an inheritance, some part was taken therefrom and brought into court; and the claim was made on that part as if the whole had been present ; e.g., a, clod was taken from the field, or a tile from the house ; so if the dispute were about an inheritance. . . . IV. Condictio. % 18. This action was rightly styled condictio (notice), inas- much as the plaintiff summoned his opponent to appear in court on the thirtieth day for the purpose of taking a judex. • The term condictio is now, properly speaking, no longer applic- able to an action in personam in the intentio of which we declare that the defendant ought to give something to us, for now there is no denuntiatio for that purpose. § 19. This legis actio was introduced by the lex Silia and the lex Cal/purnia : by the lex Silia for the recovery of any certain sum of money, by the lex Calpurnia for the recovery of any other ascertained thing. § 20. What then was the need of this action when anything that ought to be given to us might be recovered by the sacra- mentum or per judicis postulationem ? That is a question that has been largely discussed. Y. Manus Injectio. § 21. The action manus injectio (arrest) lay in oases where it was prescribed in any lex; for instance, against a judgment debtor by the Twelve Tables. In that action the judgment creditor said : " Whereas you have been adjudged, or con- demned, to pay me 10,000 sesterces and fraudulently {doTo malo) have omitted to do so, I arrest you for the 10,000 sesterces, the amount of the judgment debt," at the saine time laying his hand upon the judgment debtor. It was unlawful for the judgment debtor to remove the hand of his creditor, nor could he take any legal proceedings on his own behalf, but he was at liberty to appoint a vindex (attorney) to act for him ; in default of his so doing, his creditor led him to his own house, where he was imprisoned and placed in irons. § 22. In the course of time, various leges authorized the use 332 OUTLINE OF ROMAN HISTORY. of that action, in cases other than those of judgment debtors. Thus, the kx Publilia granted it against the principal whose sponsor, having satisfied his obligation, had not been reim- bursed within six months ; so the lex Furia de sponsu granted it where a surety {sponsor) had been compelled to pay more than his share ; in short, by various leg^s the actio per manus injec- tionem was accorded in numerous cases. § 23. Other kges, again, in certain cases gave the actio per manus injectionem, not by way of execution, but as an original action : thus the lex Furia tesfamentaria made it lie against one who had received more than 1,000 asses by way of legacy, or as a donatio mortis causd, he not being one who was exempted by that law from its provision in that respect : so the lex Marcia granted it against usurers for the purpose of recovering the excessive interest exacted. § 24. When proceedings were instituted by virtue of these and similar leges, it was lawful for the person arrested to remove the arrest, and to defend himself in person, because the plaintiff, in such cases, did not use the expression pro judicato (by virtue of a judgment), but, having stated his ground of complaint, merely added, " therefore I make the arrest by placing my hand upon you ; " whereas those (judgment creditors) to whom this legis actio was given by way of execution, after having stated the cause of the arrest, added, " for that reason {i. e., the judgment} I arrest you, by placing my hand upon you pro judicato (as a judgment debtor)." I do not forget that in the form given in the lex Furia testamentaria the words "pro judicato" appear, though they are not to be found in the text of the statute, but they appear to me to have been inserted without reason. § 25. Later on, however, permission was given by the kx .{Varia?) to all except judgment debtors, and those for whom money had been paid (by a sponsor), when proceeded against ^er manus injectionem' to resist the arrest and litigate the matter iil person. A judgment debtor, therefore, or one for whom money had been paid, was compelled, even after the passing of this lex, to nominate a vindex, or, in default, was liable to be carried off by the creditor to his house. Indeed, so long as the legis actiones (JAIUS — FOURTH GOMMENTAKY. 333 remained in force this practice prevailed, and even in our own times he against whom an action is hrought on a judgment, or hy a surety not reimbursed, is compelled to find sureties to satisfy the judgment. VI. Pignoris Oaptio. § 26." The legis actio per pignoris captionem (distress) in certain cases applied hy virtue of custom, and in others by virtue of a particular lex. § 27. By custom it was introduced in the case of military matters. In fact, it was lawful for a soldier to seize a pledge for his pay from the paymaster who had omitted to hand him his pay. Money supplied to the paymaster for the pay of the soldiers was styled ms militare. So, it was lawful for a cavalry soldier to seize a .pledge for the money necessary to buy his charger ; that money was styled cbs equestre : so, for the money provided for the purchase of provender, styled ms hordearium. § 28. T\iQ pignoris captio was introduced by a kx, e.g., by the Twelve Tables against one who had purchased a sacrificial victim, but had not paid for it ; so against one who had not paid for the hire of a beast of 'burden let in order that the hire money might be expended in a banquet, that is to say, on a sacrificial feast ; so also the lex censoria gave the pignoris captio to the farmers of the public revenues of the Eoman people against those who had not paid their taxes due by virtue of some particular lex. % 29. In all these eases the taking of the pledge was accom- panied by the use of a set form of words, for which reason the majority of the jurists concluded that this also was a legis actio. Other jurists, however, were not of that opinion, first, because the pignoris captio was transacted out of court and most commonly in the absence of the adversary, whereas the other legis actiones must be executed before the praetor and in the presence of the adversary ; and, lastly, because the pledge might be seized even on a dies nefastus, that is to say, at a time when proceedings in court were unlawful. VII. De Fiotionibus. § 30. AH these %J«ac!!wwes, however, became by degrees odious, for by their excessive refinements the authors of our law brought 334 OUTLINE OF SOMAN HISTORY. the matter to such a pitch that a suit was lost for the most trifling technical error. Hence the lex JEhutia and the two leges Julice suppressed the legis actiones, and suhstituted for them a system of written Statements called formulce. § 31. The legis actiones are now lawful in two cases only, i.e., in a case of threatened damage, and in the case of an action that must be brought before the centumviri. All proceedings before the centumviri must be preceded by the actio sacramenti before the prcetor nrbanus, or the prcetor peregrinus. As to the case of threatened damage, no one now thinks of resorting to the legis actio, it being far preferable to bind the adversary by the stipulation provided by the prsetor in his edict ; that process is, at the same time more convenient and more complete. . . . § 32. In the case of the revenue collector the formula contains a species of fiction, inasmuch as it recites that the debtor is to be condemned in the amount that in former days, when pledges were taken, would have been payable by the person who redeemed the pledge. § 33. ^0 formula has been framed on the fiction of a condictio, for when we sue either for a definite sum of money, or any other ascertained thing due to us, we allege in the intentio that such sum or thing " ought to be delivered to us," and do not add any fictitious condictio. It is therefore to be observed that the formulce by which we claim money, or any ascertained thing, avail of their own special force. Actions in respect of loans, fiduciary obligations, gratuitous services, and an innumerable number of other matters are the same. § 34. We have also another species of fiction in certain formulce, e.g., when a claim is made of honorum possessio in virtue of the edict, under the fiction of being heir. For, as the claimant succeeds to the position of the deceased by praetorian law, and not by the old civil law, he has no direct action ; he cannot claim, as his, that which was the property of the deceased, or that that which was due to the deceased has, by reason of his death, become due to him ; he is therefore compelled to feign being heir, and to formulate his claim thus : — "Let there.be a judex. — If Aulus Agerius (/. e. the plaintiff himself) was the heir of Lucius Titius, then, should it appear that the estate in question. is his ex jure GAIUS FOURTH COMMENTARY. 335 Quiritium, &o.;" or wlieii the action is in personam after a similar fiction the formula runs thus : — " If it appear that Numerius Negidius ought to give to Aulus Agerius 10,000 sesterces, &o." § 35. In like manner the bonorum emptor sues in the fictitious character of heir. Sometimes, however, he sues in another way. He declares himself the principal of the man whose estate he has bought, and directs the condemnatio to himself, that is to say, he ohtains judgment in his own favour against the former owner and the present possessor of the property, for the property be- longing and due to the former owner. This species of actio is styled Rutilian, because it was framed by the prsetor Eiutilius, who is also credited with the invention of the proceeding known as bonorum venditio. The before-mentioned actio in which the purchaser feigned to be heir is styled Servian. § 36. The actio styled Publiciana is of the same genus. This action is given to one to whom something has been delivered ex Justd causa, but who has been deprived of it before he has by usucapio acquired Quiritarian title to it, in order to enable him to recover it. As he cannot allege that the thing is his ex jure Quiritium, he is, by fiction, assumed to have completed his usucapio, and thus, as though he had become owner ex jure Quiritium, his intentio runs thus: — "Let there be s„ judex. If Aulus Agerius has possessed for a year the man that he bought, and who was delivered to him, if then it should appear that the man that he claims in this action is his ex jure Quiritium, &c." § 37. In like manner Eoman citizenship is by a fiction imputed to a, peregrinics when he is either plaintiff or defendant in a suit in cases where our law has furnished an actio; provided always, that it is but just to extend the actio to a peregrinus, e. g., when the peregrinus is plaintiff or defendant in an action for theft. The formula against ihe peregi-inus runs thus : — "Let there be a judex. If it appears that a theft of a golden goblet has been committed on Lucius Titius by the assistance or advice of Dio Hermseus, for which, were he a Eoman citizen, he would have to make satisfaction as though he were the thief, &c." So, when a peregrinus is plaintiff in an action for a theft, by legal fiction he is, for the purposes of the action, held to be a Eoman citizen. So, when ajxregrinus is plaintiff or defendant in an 336 OUTLINE OF ROMAN HISTOKY. aotion whioh lies by virtue of the lex Aquilia for damage un- lawfully inflicted, the fiction that he is a Eoman citizen prevails. § 38. Again, we sometimes feign that our adversary has not sustained a capitis diminutio ; for, when one, whether male or female, being under an obligation ^o us by reason of a contract, suffers a capitis diminutio, e. g., a woman by coemptio or a man by adrogatio, and thereby ceases, according to the civil law, to be bound by the contract, we consequently cannot allege that he or she " ought to give." To prevent, however, him or her from being able to defeat our just claim, the actio utilis was intro- duced, in which, by a fiction of law, it was held that neither, though having in fact sustained a capitis diminutio, had altered his or her legal status. YIII. Be Fartibus Formularum. § 39. A. formula consists of the following parts : — the demon- stratio, the intentio, the adjudicatio, and the condemnatio. § 40. The demonstratio is that part of the formula, the chief object of which is to demonstrate the matter in question in the action ; for example, " Whereas Aulus Agerius has sold a slave to Numerius Negidius," or " Whereas Aulus Agerius has de- posited a slave with Numerius Negidius." § 41. The intentio is that part of the formula in which the plaintiff states his claim or the subject of the action ; for example, " If it appears that Numerius Negidius ought to give to Aulus Agerius 10,000 sesterces"; or, — " Whatever it may appear that Numerius Negidius ought to give to, or do for, Aulus Agerius" ; or, — " If it appears that this man belongs to Aulus Agerius according to Q,uiritarian law." § 42. The adjudicatio is that part of ^e formula by which the judex is empowered to adjudge the matter in question to the several parties as he may think fit, as in the case of a distribu- tion of an inheritance between co-heirs, or the division of pro- perty held in common, or the settlement of boundaries, for in either of such cases ^e formula runs thus : — " Whatever is due i'iT^iims, judex, adjudge to him." § 43. The condemnatio is that part of the formula which con- GAIUS — FOURTH COMMENTARY. 337 fers upon the judex the right to condemii or absolve; for example, " Judex, condemn Numerius Negidius to pay Aulus Agerius 10,000 sesterces, but if it appears that he should not do so absolve him" ; or, — "Judex, condemn Numerius Negidius to pay to Aulus Agerius a sum not exceeding 10,000 sesterces, but if it does not appear that he should do so absolve him" ; or,— "Judex, condemn Numerius Negidius to pay Aulus Agerius 10,000 sesterces," without adding more. . . . § 44. A particular formula does not necessarily contain all of these parts. Some may be found wanting. The intentio is sometimes met with alone, e. g., in prcBJudioialihus formuUs, where the question is whether a certain person has been enfranchised, or where the question is as to the amount of a marriage settlement, and other lite cases. The demonstratio, the adjudicatio, or the eondemnatio is never found alone, for the demonstratio lias no force independently of the intentio or eon- demnatio ; so, a eondemnatio or adjudicatio is of no effect without a demonstratio or intentio, therefore these are never met with ■ alone. IX. Conceptio Formularum. § 45. Those /ormw/fls which are constructed for the purpose of determining a right are styled in jus eonceptce ; for example, those in which Uuiritarian ownership is alleged, or where the expres- sion " nobi^ dare oportere " is used, or where it is alleged that the defendant ought to be condemned, ^ro/wre (as for a theft). In each of these cases the intentio embodies, or is based on, a proposition of the old civil law. § 46. All other formulce we style in factum eonceptce, that is to say, those formulce in which the intentio is not drawn up as above, but in which, immediately after the allegation of fact, are added the words by which the power is given to the judge to condemn or acquit. Take, for example, the formula em- ployed by a patron against his freedman who has sued him in violation of some praetorian edict : — " Let their be recupera- tores. — Should it appear that such and such a patron has been sued by such and such a freedman contrary to the edict of such and such a praetor, recupatores, condemn the said freedman to pay to the said patron 10,000 sesterces ; should it not so appear, N. Z 338 OUTLINE OF ROMAN HISTOKY. acquit him." The other formulce set forth imder the title " de in Jus vocando " are conceptce in factvm ; as, for instance, the formula against him who, being summoned into court, has neither appeared in person nor by deputy ; or that against one who by force has prevented a person summoned into court from appearing. In short, there are innumerable .other formulcB of a like description set forth in the album. § 47. In certain cases, however, the praetor has framed formulcB in jus conceptcB, as well as formulm in factum conceptce, for example, in the case of an action on a deposit or a loan. In which case the formula is framed thus : — " Let there he a Judex. Whereas Aulus Agerius has deposited with Numerius Negidius a silver table the subject of this action, whatever good faith requires that Numerius Negidius shoidd give to or do for Aulus Agerius, Judex, adjudge Numerius Negidius liable to Aulus Agerius, should he fail to restore the table. If it does not so appear, acquit him." That formula is in Jus concepta. The /orwwJa framed as follows — " Let there be a, Judex. If it ap- pears that Aulus Agerius has deposited with Numerius Negidius a silver table, and that Numerius Negidius has unlawfully deprived Aulus Agerius of it, judex, condemn Numerius Negidius to pay to Aulus Agerius the value of the table. If it does not so appear, acquit him" — ^is in factum concepta. There are like foi'mula in the case of loan. § 48. Whenever a formula contains a condemnatio it is a case for pecuniary compensation. Consequently, even when the action is brought in respect of a corporeal thing, such as a field, a slave, a garment, gold, or silver, the judex does not condemn the defendant, as formerly, to deliver the thing itself, but to pay its estimated value in money. § 49. The condemnatio inserted in the formula is either for an aseertaiaed or an unascertained amount {vel certce pecunice, vel incertce). § 50. It is ascertained {certce) when the claim is for a certain sum, in which case, in the latter part of the formula are found these or like words — '^ Judex, condemn Numerius Negidius to pay to Aulus Agerius 10,000 sesterces. If it does not so appear, acquit him." GAIUS — FOURTH COMMENTARY. 339 i 51. The expression " incertce condemnatio pecunice " has two signifioations. In one case a certain maximum is fixed, this is commonly styled " cum taxatione " ; for example, when the claim is for unliquidated damages, in which ease we find, in the latter part of ih.Qformul(i—" Judex, condemn Numerius Negidius to pay to Aulus Agerius a sum not exceeding 10,000 sesterces. If it does not so appear, acquit him." In other cases there is no limit fixed, for example, when the action is brought to recover property wrongfully detained from us, i.e., when we sue in rem, or ad exhibendum (to have something produced in court), for in such cases the condemnatio runs thus : — " Judex, condemn Numerius Negidius to pay to Aulus Agerius the full value of the thing claimed. If it does not so appear, acquit him." § 52. What then is the result ? When the judex condemns the defendant he must condemn him to pay a certain sum, although no sum may have been inserted in the condemnatio. The judex must be careful when a certain sum is fixed in the condemnatio not to condemn for a larger or for a smaller amount than that sued for, otherwise he makes the cause his own {alioquin litem suamfacit) ; so when the amount has been limited {si taxatio posita sit) he must not exceed the limit, otherwise he makes the cause his own ; . he may, however, in that case condemn in an amount less than the limit. . . . X. Phis Petitio. § 53. If the plaintiff in his intentio claims more than is justly due to him, he fails in his suit, i.e., he loses the thing he is suing for; nor can he be restored to his former position, except in certain cases, where the praetor comes, by his edict, to his relief, [_e. g., where he is excused by his youth, or where the error has arisen from circumstances that might have misled the most wary. Too much is sued for in one of four ways, viz. : re, tempore, loco, or caus&. It is said to be sued for re when the claim is for, say 20,000 sesterces, the debt being only 10,000 ; or where the plaintiff, having only a share in a particular thing, claims in his intentio the entire thing, or more than his just share. It is said to be sued for tempore, yA.en. the action is brought before the arrival of the time named, or the happening z2 340 OUTLINE OF ROMAN HIStORY. of an agreed condition. It is said to be sued for hco, when the agreement was to pay at a particular place, and the plaintiff sues at another place without stating in his intentio the fact of agreement as to place ; for instance, suppose the stipulation had been in this form : " Do you engage to give me 10,000 sesterces at Capua ? " "I do so engage " : and the plaintiff, omitting all mention of the place fixed, were to commence his action in Eome in the general form, thus : " Should it appear that Numerius Negidius is bound to give to Aulus Agerius 10,000 sesterces." The plaintiff, in this case, is assumed to be suing for too large an amount, as, by this ordinary intentio, he deprives the promissor of the advantage he might have had by the payment being made at Capua. If, however, the plaintiff brings his action in the place where it was presumed that the money would be paid, it is not necessary for him to add the name of the place] } It is said to be sued for causa, when, for example, a creditor in the intentio deprives his debtor of a right of election given to him by the contract; thus, if the stipulation was in these words, "Do you promise to give me 10,000 sesterces, or the slave Stichus ? " and the plaintiff sued for one only of the two ; indeed, even when his claim is for the one of the smaller value, he is regarded as having claimed more than his due, inasmuch as it might happen that the defendant could more easily have furnished the other. It is the same when one has stipulated for a genus, and afterwards claims a species ; for example, if he had stipulated for purple cloth and subsequently sued for the purple of Tyre, though he may be suing for that which is of less value, yet, for the reason already stated, the rule is the same. The like must be said if the stipulation was for a slave, without naming one in particular, and afterwards the plaintiff sued for one by name, e.g., Stichus, even though he might be of very little value. It is therefore clear that the intentio of ihs formula should exactly coincide with the terms of the stvpulatio. § 54. It is evident that, in what are styled incertm formulm, more cannot be claimed than is due, because, inasmuch as the claim is not for a determinate quantity, but for all that the 1 The portion in brackets is taken from the conjectural reading of Heffter, the text being wanting;. GAIUS — FOURTH COMMENTARY. 341 defendant ought to give or do, no one can be guilty of a, plus petitio. The same may he said when the action is in rem for an undefined part ; for example, if the heir sue for " such " part of the land ahout which the action is, as shall appear to helong to him; a species of action which only lies in a very limited numher of cases. § 65. It is also clear that when a man, in his intentio, in error, claims one thing for another, he does not therehy incur any risk, and may sue again, .... for example, if he sues for the slave Eros when he should have sued for Stichus, or when, in his intentio, he alleges that his right to the thing sued for is derived from a testament, whereas it is derived from a stipulatio ;■ or when a cognitor or procurator has so worded his intentio as to make it appear that he is suing as principal. § 66. Though, as we have said, it is dangerous to claim more than is our due, it is not dangerous to claim less ; if, however, we do, we must not sue for the halance during the residue of the term of oflBce of the same prsetor, for if we do we may he met with the exceptio styled litis dividuce. § 57. The plaintiff is not prejudiced by a larger amount being stated in the condemnatio than is due ; for if he has received (from the praetor) an improperly dvawn formula, he wiU he remitted to his original position in order that the condemnatio may be reduced. But if too small an amount is stated m the condem- natio, the plaintiff cannot recover more ; for, though it is true that the whole matter is before {he judex, yet he is bound by the condemnatio, and cannot exceed its limit. In such a case the praetor will not remit the plaintiff to his original position, as he is more ready to assist defendants than plaintiffs. These observations do not apply to infants imder twenty-five years of age, for the praetor always intervenes on their behalf when they have been misled. § 68. When, by error, too much, or too little, has been inserted in the demonstratio, there is nothing for ^e judex to try, and the matter remains as it was ; that is what is meant by the expression " a false demonstratio settles nothing." § 59. There are authors, -however, who contend that the demonstratio is not bad by reason merely of less being stated 342 OUTLINE OF ROMAN HISTORY. than is legally due, for, they say, he who has bought Stichus and Eros can make a valid demonstratio hy saying, " Whereas I bought the slave Eros from you," and, if he pleases, can maia- tain another action in similar form to recover Stichus, because it cannot be doubted that he, who has bought two slaves, has bought each of them. Labeo was strong on this point. If, however, he, who has bought but one slave, sues for two, he makes a false demonstratio. The same may be said eoncermng other actions, e. g., commodatum, depositicm. § 60. Some writers, however, contend that ia - the case of depositum, and, indeed, in that of any action where ignominy attaches to a judgment agaiast the defendant, an excessive claim ia the demonstratio is fatal to the plaintiEf's action ; thus, should the bailor of one article allege in his demonstratio that he had deposited two, or should one who has been struck lq the face allege ia his demonstratio that he had been struck in some other part of the body. Let us consider whether we can adopt this suggestion. Certainly, for, as already stated, there are ia the case of depositum ivfo formulce, the one in jus concepta, at the commencement of which the subject of the action is stated and defined, after which the legal proposition is stated thus: — " Whatever the defendant is bound on that account to give to or do for me " ; whereas, in the latter {in factum concepta) the matter in dispute is described in the intentio without any demon- stratio thus: — "Should it appear that A. B. (the plaiatiff) deposited such and such a thing with 0. D. (the defendant)." It is obvious, that if, ia the formula in factum concepta the plain- tiff claims more than he has deposited, he must lose his action, inasmuch as he has claimed too much in the intentio. . . . XI. Compensaiio et Beductio. §61. In actions bonm fidei, full laiitude being given to the judex to decide according to the principles of natural justice, questions of set-off are entertained and judgment given for the balance. § 62. The actions bonm fidei are those arising from piu^chase, sale, letting, hiring, unsolicited or volunteer agency, mandate^ GAIUS — FOURTH COMMENTARY. 343 deposit, fiduciary relationship, partnership, guardianship, gratui- tous loan. § 63. Though hy the terms of \h& formula no duty is imposed on ^e judex to take the question of compensation into his con- sideration, yet, as to disregard it would he inconsistent with the notion of an action honce fidei, it is considered part of his duty. § 64. It is otherwise in the case of a hanker, for he must sue in the form of an account stated, that is to say, the dehit and credit must appear in ^e formula; therefore, if he is indehted to Titius in the sum of 10,000 sesterces, whereas Titius is in- dehted to him in the sum of 20,000 sesterces, the intentio must he formulated thus: — "If it appears that Titius owes me 10,000 after giving him credit for what I owe him, &c." § 65. So, the bonorum emptor must sue (a dehtor to a bank- rupt estate) in the form of an account stated, so that, having shown the credit, the defendant may he condemned in the difEer^ ence between the sum due from him to the bankrupt, and that due from the bankrupt to him. § 66. The set-off in the case of the banker differs from that in the case of the bonorum emptor. A balance can only be struck between things of the same genus and nature, money with money, wheat with wheat, wine with wine, and indeed, accord- ing to some, that cannot be effected in the case of wiue with wine or wheat with wheat, unless the one parcel is of the same nature and quality as the other; whereas in deductio, i. e., where the things are of different- natures — for example, if the bonorum emptor claim a given sum of money while he owes wheat or wine — he must deduct the value and claim the difference. § 67. So, in the case of deductio, debts due m futuro are in- cluded, whereas in compensatio (set-off) those only are taken into consideration which are payable in prcesenti. § 68. Again, the calculation in the case of compensatio is placed in the intentio, the consequence being, that, if the banker claims one single sesterce more than is due to him on the balance of account, he fails in his action, and thus loses the whole ; whereas the deductio is placed in the damnatio, a part of the formula where an excessive demand does not involve any risk. 344 OUTLINE OF ROMAN HISTORY. especially wlien the action is brought by a honorum emptor, who, though suing for a specified sum, formulates his condemnatio for an unliquidated amount. XII. De Actionibus ex Contractu Mliorum et Sermrum. § 69. Haying already mentioned, the action which lies against the father or master to recover the peculium of children in pofestate and of slaves, we must now enter more into detail concerning that action and other like actions granted against fathers and masters. § 70. rirst, then, when the son or slave has acted in- pursu- ance of instructions received from the father or master, the praetor has granted an action against the father or master, as the case may be, for the recovery of the whole debt, and rightly so, for those who contract with the son or slave under such cir- cumstances, look to the father or master, rather than to the son or slave. § 71. For the same reason, the praetor has established two other actions, styled respectively exercitoria and institoria. The action exercitoria lies when a father or master has appointed his son or slave captain of a vessel, and some engagements have been entered into by the son or slave in connection with the enterprise ; for, as this contract must be taken to have been made conformably to the wish of the father or master, it appeared to the prsetor but equitable to give an action for the full amount. This praetorian action lies equally when the captain is a stranger, whether slave or free, against the person who appointed him. The action is styled exercitoria because the person who takes the daily profits of the working of a ship is called the exercitor. The formula styled institoria applies in the case of the management of a shop or business of a,ny kind, entrusted whether to a son, a slave, or a stranger, whether bond or free, and lies in respect of all matters within the scope of the agency. This action is styled institoria, because the manager of a shop is called an institor. This formula is also for- the full amount. § 72. The prsetor has also granted another action against a father or master, styled the actio tributoria, in the case where GAIUS FOURTH COMMENTARV. 345 the sons and daughters, or male and female slaves, with the knowledge of the father or master, trade with the goods ia their peculium. When such trading has resulted in liahilities, the praetor's rule is, that all the stock comprised in the peculium, together with all profits arising therefrom, shall be divided between the father or master, if anything be due to him, and the other creditors in the ratio of their respective claims, and that the father or master, as the case may be, shall make the distribution. When, then, any one of the creditors complains that he has not had his just share assigned to him, the prsetor gives him the actio tributoria. § 73. There is also another action relating to the jieculium, and to moneys spent in the interest of the father or master. When the son or slave has contracted without the sanction of the father or master, in so far as the matter has resulted in profit to him, he is held liable to satisfy the obligation, but, where he has not been benefited, his liability is confined to the extent of the peeulmm. The father or master is considered as having derived profit from everything that the son or slave, has necessarily ex- pended in his interest; for example, if, with the money borrowed by the son or slave, he has satisfied the claims of the creditors of the father or master, or has propped up some ruinous, build- ing, or purchased corn for his household, or bought an estate, or any other necessary thing. If, then, out .of the ten sesterces borrowed by your slave from Titius, he has paid five to your creditor, and has spent the other five in some way or other, you ought, as to the first five, to be condemned to pay in full, and, as to the remaining five, to the-extent only of ih.e peculium. If you have profited by the whole ten, Titius can recover the amount in fuU from you. Though in one and the same action the claim is made to the extent of the pecuUtm, and to the extent of the profit, yet there are two condemnationes. Conse- quently, the judew, before whom the case comes, in the first instance inquires as to the profits, if any, to the father or master, and does not inquire into the extent of the peculium till satisfied that the father or master has not derived any profit, or only iu part. In order to ascertain the amount of ^q peculium, deduction must first be made of whatever the son or slave is 346 OUTLINE OF ROMAN HISTOEY. indebted to the father or master, as also to persons in the same patria potestas ; anything over and ahove is reckoned aspeculium. Sometimes, however, no deduction is made from the amount due by the son or slave to a person in the same potestas, for instance, when he owes it to a person in his own pecuKum, (e. g., debts owing by a senus ordinarius to his servus vicarkis.) % 74. There can be no doubt that "he who has contracted with a son, or slave, as the agent of his father or master, and who is entitled either to the action institoria, or the action exercitm-ia, may also bring the action de peculio aut de in rem verso. No one, however, who could recover the full amount of his debt in either of the two former actions would be so foolish as to take upon himself the burden of proving that the father, or the master, had profited, or that the son, or slave, not merely had peculium, but sufficient to satisfy his debt. He who is entitled to an actio tributoria may also proceed by the actio de peculio vel de in rem verso. In his case, it is obvious that the latter is generally pre- ferable to the former, for iu the actio tributoria that portion only of the peculium is taken into consideration that is comprised in the stock in trade of the son, or slave, or that represents the profits of successful trading, whereas in the actio de peculio the whole is considered. It must be remembered that only a third, a fourth, or even a smaller portion of the peculium may be devoted to trading, the residue being invested iu immovable, or other property. When it can be proved to the Judex that the whole of the money has been devoted to the interests of the father, or master, this action should be adopted ; for, as we have already said, the same formula includes both the peculium and money spent in the interest of the father or master. XIII. De Noxalibus Actionibus, § 75. For the delicts of a son, or a slave, e.g., a theft {furtum) committed, or damage {injuria) done by him, certain actions styled noxales were framed, in which the father, or master, had the option either to pay the damages assessed, or to abandon the delinquent as a noxa ; for it was considered unjust that the father, or master, should forfeit more for the wrongful act of his son, or slave, than his body. GAIUS FOURTH COMMENTARY. 347 § 76. Noxales actiones were estaUislied, in part by the leges, and in part by edict ; e.g., by the law of the Twelve Tables tlie action of theft {actio furti) was established, by the lex AquiKa the action for unlawftil damage {damni injurim) ; by the edict of the praetor, inter alia, are the action for injury {mjuriarum), and that for the forcible taking of goods [vi bonorwn raptorum). § 77. AH actions noxales follow the person of the delinquent : thus if your son, or slave, has committed a delict, so long as he remains in your pofesias, the action lies against you ; should he pass into the pote^tas of another, the action lies against that person ; should he become independent, a direct action {directa actio) lies against him personally, in which ease there is no noxal (abandonment). Conversely, a direct action may become noxal; for, if n, pater familias has committed a delict, and then has given himself to you in adrogatio, or become yotir slave, as in the first commentary we have seen happens in certain cases, the action which previously was direct, against him, becomes noxal as against you. § 78. But if a son has committed a deKot against his father, or a slave against his master, no action arises, because no obliga- tion can exist between you and one who is in your potestas; consequently, even should he pass into the potestas of another, or become sui Juris, no action will lie either against him or the person into whose potestas he has passed. Hence arises this ques- tion : — When the slave or the son of another has committed a delict against me, and subsequently becomes in my potestas, is the right of action gone, or is it merely in abeyance ? Our masters contend that it is extinguished, because a relationship has been created between us in which it never could have come into existence; consequently, should the wrongdoer pass from my potestas, I could not maintain an action. The authorities of the other school contend that the action is in abeyance so long as the delinquent remains in my potestas, because I cannot sue myself; but that, so soon as he passes from my potestas, it revives. § 79. When a Jilius familias is given in mancipio by reason of a noxal act, the authorities of the other school contend that the ceremony should be repeated three times, inasmuch as the law 348 OUTLINE OF EOMAN HISTORY. of the Twelve Tables enacts, that, unless the son has been mancipated three times, he does not escape the potestas of his father. Sahinus and Oassius, as also the other writers of our school, contend that one mancipation is sufficient ; they being of opinion, that the three mancipations required by the law of the Twelve Tables only relate to voluntary mancipations. § 80. Such are the rules applicable to those in potestas when the question of liability arises respecting their contracts or delicts. As to persons in manus or in mancipium, when the liabiKty is ex contractu, unless they are defended as to the whole amount claimed by him to whose authority either is subject, the entire estate of the defendant, which would have been his had he not been subject to such authority, must be sold ; but when the capitis diminutio is treated as non-existent in an action based on the imperium .... § 81 Although, as we have said, it was never permitted to a defendant to surrender dead slaves (instead of making compensation for the damage done by them while living), yet, if a man give up his slave, who has died a natural death, he is free from liability as in the other case. XIV. Be his per quos agere possumus. § 82. It must be remembered that a man may sue in his own name, or in the name of another, e.g., when he sues as a cognitor, procurator, tutor, or curator. Formerly, however, in the time of the legis actiones, no one was permitted to sue in the name of another, except in two cases, i. e., in an action brought pro populo, or libertatis causd. § 83. A cognitor is appointed by the use, in the presence of the defendant, of a set form of words. In fact, by way of illustration, the plaintifE appoints a cognitor in these terms, " Inasmuch as I am suing you for an estate, I appoint Lucius Titius to be cognitor in the matter." The defendant appoints a cognitor thus : — " Since you demand an estate from me, I appoint Publius Mevius cognitor in the matter." The plaintiff may say, " Whereas I wish to commence an action against you, I appoint a cognitor in the matter;" and the defendant, " Since you wish to commence an action against me, I appoint a cognitor GAirS— FOURTH COMMENTARY. 349 in the matter." , It is immaterial whether the cognitor is present or not at the time of his appointment : however, if he is not then present, he does not in faot become cognitor till he is aware of the appointment and consents to act. § 84. A procurator, on the contrary. Is appointed to an action hy a simple mandate without the use of any given form of words, and that even in the absence, or without the knowledge, of the adversary ; indeed, some writers hold that a man, who, without mandate, in good faith, undertakes the conduct of the affairs of another, may be regarded as a procurator, provided he gives sureties that what he does will be ratified by his principal. Therefore, even though the procurator produces no mandate, he may go on with the action, for it is a common thing not to produce a mandate at the commencement of an action, but to show it later on to ila.e judex. § 85. We have abeady in the first commentary stated how tutors and curators are appointed. § 86. He who sues in the name of another inserts his principal's name in the intentio, but in the condemnatio he inserts his own ; for example, if Lucius Titius sues for Publius Mevius, the formula runs thus : — " If it appears that Numerius Negidius ought to give 10,000 sesterces to Publius Mevius, Judeix, condemn Numerius Negidius to pay 10,000 sesterces to Lucius Titius ; if it does not so appear, acquit him." In like manner, if the action is a real action, he alleges in the intentio that the thing belongs to Publius Mevius by Quiritarian law, and makes the condemnatio to himself. § 87. So, when an agent intervenes on behalf of the defendant, the allegation in the intentio is, that the defendant principal ought to give, &c., but the condemnatio is against the defendant agent. But, if the action is a real action, the name of the person against whom the action is brought, whether principal or agent, does not appear in the intentio, because the intentio simply alleges that the thing in question belongs to the plaintiff. XV. Be § 88. Let us now consider in what cases the defendant and plaintiff are respectively required to give security. 350 OUTLINE OF ROMAN HISTOKY. § 89. If I tring a real action against you, you must give security, for it has appeared equitable that inasmuch as you are permitted to retain interim possession of a thing where your right to it is disputed, you should guarantee me by satisdatio, in order that, should you fail in the action, and neglect to deliver over the thing or its assessed value, I should he able to proceed against you or your sponsors. § 90. And still more ought you to give me security when you defend in the name of another person. § 91. Besides, as the action in rem may be brought in either of two forms, i.e., by the formula styled petitoria, or by that styled per sponsionem, one of two forms of stipulation is open to the plaintiff. If the formula petitoria is adopted, the stipulation styled judicatum soki (let the award of the Judex be paid) is employed ; whereas, if the formula per sponsionem is adopted, the stipulation styled pro prcede litis et viiidiciarum (see post, par. 94) is adopted. § 92. The formula petitoria is that in which the plaintiff. claims the thing as his. § 93. We proceed per sponsionem, thus : — We challenge our adversary in a spows^o running as follows: — "If the slave, 'the subject of this action, is mine by Quiritarian law, do you under- take to give me 25 sesterces?" Then we cause him to be served with a. formula in the intentio of which we allege that he is bound to pay us the amount of the sponsio. In which case we can only succeed by proving that the thing in question is ours. § 94. The amount, however, of the sponsio is never exacted ; for the sponsio is not penal, but merely formal {prmj'udicialis) — an admittedly fictitious nominal amount — ^its sole object being to provide a means by which the question of title may be adjudicated upon. Therefore, the defendant does not re-stipu- late. The stipulation jjro prcede litis et nndiciarum is so gtyled because it has taken the place of prmdes, for formerly, when the, proceeding was by legis actio, the person in possession gave to the plaintiff prmdes (sureties) pro lite et vindiciis, that is to say, for the thing itself and its profits. § 95. When, however, the action is tried before the centum- ' viri, we do not sue for the amount of the- sponsio by a formula, GAIUS — FOURTH COMMENTARY. 351 but by a Ugis actio, for we cHallenge the defendant by a sacra- mentum, in whieb case the sponsio by the lex .... ia 125 sesterces. § 96. When the plaintiff in a real action sues in his own name he does not give security. § 97. Even when he sues by a cognitor no sureties are demanded either from him or his cognitor, for as the cognitor is substituted for him by a formal, and in a certain sense solemn manner, he is considered, and with reason, as occupying the position of his principal. § 98. When, however, a procurator is the plaintiff, security must be given by him that his principal wiU ratify his acts ; for in this case there is the risk that the principal may bring a second action for the same alleged cause of action, a risk wldch does not exist in the case of the cognitar ; for when one has sued by a cognitor, he is equally estopped from suing again for the same cause of action as if he had sued in his own name in the first instance. § 99. According to the strict letter of the edict, tutors and curators are boimd to give security, the same as procuratores ; they are, however, sometimes excused. § 100. As to when, in the case of personal actions, security must be given by the plaintiff, we can only repeat what has been said as to real actions. § 101. As to security by the defendant : — When one defends in the name of another, sureties must always be furnished, for no one, without security given, is regarded as a sufficient substi- tute for the defendant. When the action is against a cognitor, his principal must provide the security; when it is brought against a procurator, the procuratores must provide it ; so in the case of a tutor or curator. § 102. When, in a personal action, the defendant defends in his own name, security is, in certain eases, required by the praetor. There may be one or two reasons, namely, the nature of the action, or the character of the person. On account of the nature of the action may be instanced actions on a judgment, or for money paid by a sponsor, or the action de moribus muUeris : on account of the persoii, e.g., when the defendant is one who 353 OUTLINE OF ROMAN tllSTORY, has squandered his estate, or one whose goods have been seized, or advertised for sale by his creditors, or when the action has been brought against an heir whom the prsetor has regarded with disfavour. XVI. Be Judiciis Legitimis eioquce Imperio continentur. § 103. Every action is either legitimo jure 01 prcetorian. § 104. Actions kgitimo jure are tried before a single judge in the city of Rome, or within one mile of the city, the judex and the parties being all Roman citizens ; such actions by the lex Julia judiciaria (on procedure) expire, unless adjudicated upon within eighteen months from the date of the institution of the action. That is what is meant by the common saying:— "By the lex Julia an action dies in eighteen months." § 105. The other class (praetorian actions) comprises actions brought before recuperatores and those which are tried by a single judex, he, or either of the parties, being a peregrinus. In this category are also all actions tried beyond one mile from the city of Eome, whether the parties be citizens or peregrini. These actions are said to be based on, or contained within, the imperium, because they are valid only so long as the praetor who grants them remains in office, i-e., retains his imperium. § 106. When the action is one of those limited by the term of the praetor's office, whether it be a real or personal action, whe- ther the intentio of the formula be in factum or in jus, one can, notwithstanding, in strict law sue again for the same cause of action, in which case it is necessary to plead the exceptio ret judicatw, or the exceptio in judicium deductce. § 107. But when the action is legitimo judicio and in personam, the intentio in \hQ formula hQing juris civilis, no subsequent action can be brought for the same cause of action, and therefore, in that case, the exceptio is superfluous. But when the plaintiff has sued in rem or in factum, in strict law he is nOt estopped from suing again on the same cause of action ; but should he do so, the defendant can avail himself of the exceptio rei judicatce or the exceptio in judicium deductce. § 108. Formerly it was different in the case of legis actiones, for when a matter had once been litigated no second action could _Aa CUIUS — FOURTH COMMENTARY. 353 be mamtalned for the same cause of action, and in those days there was no suoh thing as an excepUo. % 109. Again, the right of action may be given by a lex, yet the action not he kgitimum; and, con Tersely, the right of action may exist independently of any lex, and yet be legitimum. If, for example, an action is brought in the provinces by virtue of the lex Aquilia, or Ovinia, or Furia, it will be (praetorian) based on the imperium ; so if it be brought in Eome before recuperatores, or before one judex, if either of the parties is a percgrinus. So, conversely, when the right of action is created by a prffitorian edict the trial of which takes place at Eome before a single judex, all the parties being Eoman citizens, the action is legitimum. XVII. Be Perpetuis et Temporalibus Actionibus et quce adReredes vel in Seredes transeunt. § 110. It should here be observed that ordinarily the prsetor grants either of those actions arising from a lex or senatiisconsuUum at any time, whereas he seldom grants either of the actions that spring from his own jurisdiction except within the year. § 111. Sometimes, however, the praetorian actions are framed on the model of the jus legitimum, e.g., those that the praetor grants to bonorum possessores, and to others occupying the position of heir. The actio furti manifesti, though issuing from the juris- diction of the praetor himself, is granted at any time, and rightly so, iaasmuch as the capital penalty of the old law has been replaced by a pecuniary penalty. § 112. Actions maintainable by the civil law, or those which have been granted by the praetor, do not necessarily lie against the heir of the person against whom they might have been brought. In short, it is a well-established rule that penal actions originating in delicts do not lie .... against the heir, e. gf., the Mions, furti, vi bonorum raptorum, injwiarum, damni injurice, but actions of this kind do lie at the suit of the heir of the person injured, and, excepting the actio injuriarum and any other similar action, are never refused to him. § 113. Sometimes, indeed, actions ex contractu neither lie at the suit of, nor against the heir ; in fact, a right of action never N. A A 354 OUTLINE OF ROMAN HISTOKY. passes to the lieir of tlie adstipuMor, and the heir of the sponsor or of the fidepromissor is never actionahle. XVIII. 8i Reus ante rem judicatam satisfaciat Actori. § 114. It now remains for ns to inquire into the duty of the judex, when, after' action brou^t but before judgment, the defendant satisfies the demand of the plaintiff : — Ought he to give judgment for the defendant, or ought he rather to give judgment against him on the ground that at the date of the commencement of the action judgment should under the then circumstances have been given against him ? Our authorities hold that ^e judex ought to enter judgment for the defendant, and say that the nature of the action is immaterial. Hence comes the common sayiag that Sabinus and Cassius held that : " Every action admits of an acquittal." The authorities of the opposite school hold the same opinion in the case of actions bonce fidei, because in them the discretion of the judex is un- fettered. With regard to actions in rem they think it is so far .... XIX. Be Exoeptionibus. § 115. We will now consider easceptiones. § 116. Exceptiones were introduced for the benefit of defen- dants. It frequently happens that a man is liable in law, and yet that it would be inequitable to decide against him in a particular action : for instance, if I stipulated with you for a certain sum of money on the pretext that I was about to lend you that sum, and then omitted to hand it over, it is clear that I can sue you for the amount, because you are bound by your stipulation ; but as it would be inequitable for judgment to go against you in such an action, it has been provided that you may defend such an action by the exoeptio doli mali. So if I have made a pact with you not to sue you for something you owe me, I can nevertheless sue you, alleging that you are bound to pay me, because the obligation is not extiuguished by the pact; but it has been decided that my claim ought to be repelled by the exceptio pacU conventi. § 117. An exceptio may also be used in an action that is not in personam ; e.g., if by intimidation or by fraud you have com- GAITJS— FOURTH COMMENTARY. 355 pelled me to manoipate something to you, and you sue me for it, an exceptio is granted to me by which you will he defeated if I prove that you so acted as to frighten me, or that your conduct was fraudulent. So if you knowingly purchase an estate, the suhject of litigation, from one not in possession, and you claim it from the possessor, you will be met with and absolutely defeated by an exceptio. § 118. Certain of the exeeptiones are published by the preetor in his edict, the rest are granted by him to meet particular cases. All are founded either upon leges, or acts having the force of leges, or on the praetor's jurisdiction. § 119. All exeeptiones are worded in the negative of the defendant's allegation. For example, if the defendant alleges that the plaintiff is acting fraudulently in claiming, say, money which he has never handed over, the exceptioxwa^ thus : — " If in this matter there has not been nor is any fraud on the part of Aulus Agerius." So if the defendant says that the money is sued fdr in violation of an agreement, the exceptio runs thus : — " If it has not been agreed between Aulus Agerius and Numerius Negidius that this money should not be sued for.'^ So in all other cases. Though every exceptio is interposed by the defendant, it is so inserted in the formula as to make the condemnatio conditional, i.e., so that the judex is not to condemn the defendant if there has been any fraud in the transaction on the part of the plain- tiff, or, in the other case, if there has been an agreement that the money should not be sued for. § 120. Exeeptiones are said to be ei^er peremptorice or dilatorice. § 121. Peremptory exceptions always avail, and cannot be evaded; e.g., that styled "metus causa" or " dolo malo," or that something has been done in violation of a lex or scnatuscon- sultum, or that a matter is res judicata or suhjudice, or that it ias been agreed that under no circumstances the money should be sued for. § 182. Dilatory exceptions are those that avail for a given time only ; for example, all agreements that money should not be sued for, say, within five years, for when the five years have expired the exceptio is unavailing. Two exeeptiones similar to that are the exceptio litis dividum, and the exceptio rei re^iduce. A a2 356 ODTUNE or ROMAN HIbTORV. Por if a person has brought an action for a part of a thing, and during the term of office of the same prsetor sues for the re- mainder, he is met hy the exceptio litis dividuce. So, when one who has various causes of action against the same defendant sues on some only, and reserves the rest to try them before other judices, if, during the term of office of the prsetor in power when the first action was commenced, he sues for the remaining causes of action, he is met by the exceptio rei residuce. § 123. He, then, to whose suit a dilatory exceptio may be pleaded should take care to postpone his action, for if he goes on with it in the face of the exceptio, he loses not merely his case but his right, for when the time has arrived at which he might have sued, heedless of the exceptio, had matters remained in their original condition, he cannot maintain an action, the matter having been adjudicated on, and he defeated by the exceptio. § 124. Exceptiones are considered dilatory, not merely by reason of time, but by reason of the person, of which latter kind are the exceptiones cog niter ice ; for example, take the ease of a person who, being incapacitated by the edict from nomi- nating a cognitor, yet employs one to conduct an action; or that of one who, having the right to appoint a cognitor, appoints one who cannot legally act as cognitor. If the exceptio cognitoria is pleaded, should the plaintiff be one who cannot appoint a cog- nitor, he can carry on the suit himself ; if, on the other hand, the person who has been nominated cognitor cannot fill that office, the plaintiff can appoint another cognitor, or can conduct the suit in his own name, and thus, in one way or the other, avoid the exceptio; whereas, should he, notwithstanding the exceptio, go on with the cognitor appointed by him, he loses his cause. § 125. When a defendant, in error, has omitted to avail himself of a peremptory exceptio, he is restored to his original position, i. e., he is allowed to amend ; but if he has omitted to avail himself of a dilatory exceptio, it is doubtful whether he can be so restored. XX. De JReplicationibus. § 126. Replicatio. It sometimes happens that an exceptio which, at first sight, appears just, does the plaintiff great in- justice. In a case of this kind, a further addition must be GAIUS FOURTH COMMENTARY. 357 made to the formula in the favour of the plaintiff. This addi- tion is styled a replicatio, because by it the effect of the exceptio is repelled and destroyed. Suppose, for instance, that I had agreed with you not to sue you for certain money that you owe me, and that afterwards we made a fresh agreement, i. e., one permitting me to sue you; if then I commence an action against you, and you cause an exceptio to be inserted to the effect that you ought to be condemned " unless it should appear that there has been an agreement between us that I should not sue you," this exceptio of pacti conventi would defeat me, because the fact that we subsequently entered into a further agreement does not render the fact of the former less true. But as it would be unjust for me to be defeated by this exceptio, I am, by virtue of the subsequent agreement, granted a replicatio in these terms : " If it has not subsequently been agreed that it shall be lawful for me to sue." So if, when a money dealer {argentarius) sues for the price of a thing sold by auction, he is met with the exceptio that the purchaser is to be condemned only if the thing has been delivered to him, which is a good exceptio, but if, at the auction and before the sale, it was announced that the thing would not be delivered to the purchaser before the price was paid, the money dealer might avail himself of the replicatio. So. if, before the sale, it was publicly announced that the thing would not be delivered to the buyer before the price was paid. § 127. Duplicatio, Triplicatio, &c. It sometimes happens that the replicatio, though at first sight appearing just, in fact works an injustice to the defendant ; in such case, in order to relieve the defendant, an addition is made, styled a " duplicatio." § 128. Should this, though at first sight appearing just, do in fact, owing to some circumstance, an injustice to the plaintiff, another addition must be made, styled a triplicatio. § 129. The variety of business matters has caused these additional clauses to be extended in certain cases even beyond those we have specified. XXI. Be Prmscriptionibus. § 130. Let us now consider i?rfl5«cn^^«owes, which are employed for the benefit of the plaintiff. § 131. It frequently happens that by virtue of one and the 3-58 OUTLINE OF ROMAN HISTOKY. same contract,.! sometliing becomes due at tlie moment, and something else at a future date: tliat happens, for example, when we have stipulated that a certain sum of money shall be paid each year, or each month. When a certain number of years, or months, have elapsed, the sums that correspond to the time ought to be paid ; but, as to those that correspond to the periods to come, though it is true that the obligation is contracted, the time to demand payment has not come. If, then, we wish to sue for that which is actually due, and leave the obligation as to the future instalments still sub- sisting, it is necessary to include in our action this prwscriptio, " Let the amount already due be the subject of the suit." Otherwise, if we sue without this prcescripiio, using the formula for an unliquidated demand the intentio of which is in these terms: "Whatever it appears that Numerius Negidius ought to give and do to Aulus Agerius : " in which case we include in the submission to the judex the whole obligation, i.e., that which is payable in prcesenti and that which is payable infutnro ; and as, whatever may be the total obligation, the judex can only adjudge that portion that was due at the commencement of the action (litis contestatio), we lose our remedy as to the rest, berag estopped from bringing another action. So, if we sue ex empto (on a purchase) to secure the transfer to us by mancipatio of a field, the prmscriptio must run thus : " Let the action be for the mancipation of the field:" so that, should we afterwards desire to have the possession vacated, and transferred to us, we may be able to sue for delivery either in virtue of the stipulation, or in virtue of the purchase. For, if we adopt the formula of the incerta actio : — " Whatever Numerius Negidius ought to give or do to Aldus Agerius : " — the whole obligation resulting from the contract is at once adjudicated on, and no action can afterwards be brought to recover the possession. § 132. That 2}>'(escripfio7ies are so styled from the fact that they are written at the head oi formulae is more than obvious. § 133. In our days, as already stated, all the prcescriptiones are introduced by the plaintiff; formerly, some were introduced by the defendant. Such was the prcescripfio : — " Let the action on the question raised proceed, provided that it does not prejudice the question of inheritance." This prcescHpfio has now taken the GAIUS — FOURTH COMMENTARY. 369 form of an exceptio, and is used when a person claiming an inheritance brings an action to recoTer some particular portion of it, for it would be unjust to suffer the general question as to the inheritance to be prejudiced by a decision as to an individual article § 134 The intentio of the formula determines the person to whom the subject of the action ought to be given ; and obviously it is the master of the slave who stipulated; while the prcescriptio inquires who, according to the true meaning of the contract, is to exercise the power. '■ § 135. What we have said concerning slaves must be under- stood to apply to all others subject to our authority. § 136. In like manner we must observe that when we com- mence an action against any one who has promised us some- thing incerium, the formula provided for such a claim is so con- structed that the pnescriptio takes the place of the demonstratio, thus : — " Let so and so be judex. Whereas Aulus Agerius has stipulated for something uncertain from Numerius Negidius, the day for the delivery of which is past, whatsoever on that account Numerius Negidius ought to give or to do to Aulus Agerius, &c." § 137. If the action is brought against a sponsor, or a fide- jussor, ^e prcescriptio runs in the case of a sponsor thus: "Let this be the subject of the action — Whereas Aulus Agerius has stipulated for .something uncertain from Lucius Titius, in respect whereof Numerius Negiditis was sponsor, whatever amount be now due, &c." In the case of a fidejussor it runs thus : " Let this be the subject of the action — Whereas Numerius Negidius became fidejussor' for Lucius Titius, what- ever amount be now due, &c. ; " then follows ^e/ormula. XXII. Be Interdictis. § 138. It now remains for us to treat of interdicts. § 139. In certain cases the praetor or the proconsul interposes his authority directly, in order to put an end to litigation, especially in the case of disputes between persons as to posses- sion or quasi-possession. In short, he commands the doing, or the abstaining from doing, of particular acts. The formulm employed on these occasions are styled interdida, or decreta. 360 OUTLINE OF ROMAN HISTOKY. § 140. They are called decreta when the magistrate orders the doing of a given something ; e. g., when he orders the produc- tion, or restitution of a particular thing. They are called interdicta when he forbids the doing of a given act ; e. g., when he directs that no violence shall be done to one possessed, innocently, or, that nothing shall be done on sacred ground {loco sacro). Hence all interdicts are said to be either restitutoria or cxliibitoria, or prohihitoria. I 141. The matter, however, is not terminated by the com- mand or prohibition, but the parties go before a judex, or recuperatores, and there, formulm being issued, an investigation is made as to whether anything has been done in violation of the edict, or whether anything has been omitted to be done that was ordered to be done. At times a penalty accompanies the action, at others there is no penalty. A penalty is attached, for instance, when the proceedings are by sponsio; there is no penalty when an arbiter is demanded. In the case of prohibi- tory interdicts the proceeding is always by sponsio, m that of restitutory, or exhibitory, interdicts it is sometimes by sponsio, at others by the formula styled arbitraria. % 142. The principal division of interdicts is, then, into prohibi- toria, restitutoria, and exhibitoria. § 143. Another division springs from their immediate object, /. e., to acquire, to preserve, or to recover possession. § 144. An interdict, the object of which is to acquire posses- sion, is given to the bonorum possessor; it begins with these' words, " Quorum bonorum ; " the object of this edict is to secure to the bonorum possessor restitution to bim of any portion of the inheritance that may be in the custody of another claimed pro herede, or pro possessore. One is deemed to hold pro herede whether he is iu fact the heir, or whether he only supposes him- self to be the heir. One is deemed to hold pro possessore who has in his custody the inheritance or any part thereof without title, and knowing that it does not belong to him. This inter- dict is styled adipiscendce possessionis, for it only avails one who is for the first time endeavouring to gain possession of the thing ; consequently, if he has once had possession and lost it, this interdict is of no use to him. GA.IVS — FOtTRTH COMMENTARY. 361 § 145. The bonorum emptor receives a similar edict, which is sometimes called interdictwn possessorium. § 146. In like manner the purchaser of public property is provided with an edict styled interdietmn sectorium, hecause those who buy property sold for the benefit of the state are called sectores. § 147. The interdict styled sylvianum has also been prepared for the acquisition of possession, and is resorted to by the owner of land to recover the property of his tenant pledged to him to secure the rent. § 148. An interdict for the purpose of retaining possession is granted when there is a dispute between two parties as to the property in a given thing ; and the first question for decision is, which of them should have the custody, and which be plaiatifE ? For this purpose, two edicts have been provided, viz., uti possi- detis (as you possess), and utruhi (he of you two who has it). § 149. The interdict uti possidetis is granted in the case of land, or a house ; the interdict utrubi for the xaossession of movable property. § 150. "When the interdict relates to land or a house, the praetor gives the preference to the person in possession at the time the edict issues, provided the possession has neither been acquired by violence, clandestine conduct, nor sufferance on the part of his opponent {nee vi nee elam nee preeario ab adversaria possideat). If the edict relates to movable property, the pre- ference is given to him who has been in possession of the thing during the greater portion of the year, there not having been any violence, clandestine conduct, or sufferance («'. e., no evi- dence that the possession was merely on sufferance). This is made clear by the terms of the edict. § 151. In the interdict utrubi each may avail himself, not merely of his own possession, but of' that of any other person which lawfully accrues to him ; for example, the possession of the person to whom he is heir, or that of the person from whom he has bought the thing, or that of the person from whom he has received it by way of ... or as a gift. If, then, the lawful possession of another, added to our own, surpasses that of our opponent, we succeed on this interdict. But he who has no 362 OUTLINE OF ROMAN HISTORY. possession of his own does not and cannot acquire title by reason of the possession of another, for there can be no accession to that which does not exist. So he who has a tainted possession, i. e., who has acquired possession from his opponent by Tiolence, clandestinity, or by sufferance, cannot benefit by accession, for his own possession does not avail him. § 152. The year is reckoned backward. If, then, for ex- ample, you have been in possession during the first five months of the year, and I during the last seven months, I shall be in the better position by reason of the number of months of my possession, and you wiU not derive any advantage as regards this interdict from the fact that your possession was earlier ia the year. § 153. We are deemed to be in possession, not merely when we are personally in possession, but also when any one is in possession in our name, though he may not be subject to our authority; for example, the tenants of our land or house. We are equally deemed to be in possession by the possession of those with whom we have deposited the thing, or to whom we have left it, or to whom we have given a right of habitation gratuitously, and this is the meaning of the popular saying, " Possession may be preserved by any one who holds in our name." Indeed, the majority contend that possession can be retained by the mere intention to retain it . . . In the second commentary we have indicated those through whom we may acquire possession. It is beyond doubt that we cannot acquire possession by the mere desire to possess. § 154. When any one has been ejected with violence, he may obtain an edict to recover the possession, for, to meet that case, a form of edict has been prepared which commences with these words — " Unde tic ilium vi dejecisti" (whence thou hast ex- pelled him by violence) — by means of which the person who has expelled the other is compelled to restore the possession ; pro- vided always that the person had not himself acquired the possession by violence, clandestinity, or by sufferance from his adversary ; for if he had obtained possession by violence or clan- destinity or by sufierance he may be ejected with impunity. § 155. Sometimes, however, the praetor would compel me to GAIUS FOURTH COMMENTAKY. 363 restore the possession to one expelled by me hy violence, thougli lie had obtained it from me by force, clandestinity, or by suffer- ance ; that is to say, if I had ejected him by force and with arms, for the praetor . . . -without distinction . . . § 156. The third division of interdicts is into "simple" or *' double." § 157. Those, for example, are simple, in which one party is plaintiff and the other defendant. All the restitutoria or exhibi- toria edicts are edicts of this class. The plaintiff is the party who desires that the production or restoration should be made ; the defendant is the party by whom it is decreed that the production or restoration should be made. § 158. Some of the prohibitoria edicts are double, others are simple. § 159. Those, for instance, by which the prsetor enjoins the defendant not to do something in a sacred place, or in a public river, or on its banks, are simple, for the plaintiff is the person who desires that the act should not be done, and the defendant the person attempting or threatening to do it. § 160. The interdicts uti possidetis and utrubi, for example, are double. They are said to be double because the condition of the two parties is similar; neither is regarded as plaintiff or defendant, each in his turn taking the part of plaintiff and defendant. In short, the prsetor addresses both in the same language, the terms of the edict in the former being, " I forbid violence to be employed to prevent you from possessing in the manner you now possess " ; and in the latter, " I forbid force being used to prevent Tii'tti of you two with whom the slave, the subject of this action, has been during the greater portion of the year from recovering possession." § 161. Having explained the different kinds of interdicts, we now come to the consideration of their process and results. We will begin with the simple interdicts. § 162. When an injunction restitutoria or exhibitoria, for example, is granted to secure the restitution of possession to one deprived by force, or for the production of a liberttis to whom the patron wishes to allot services, the matter is conducted to its termination at times without, and at others with, risk. 364 OUTLINE OF ROMAN HISTOKV. § 163. In short, if tlie defendant demands an arbiter, lie receives a formula styled arhitraria, and then, if, by the award of the judex, he is ordered to restore or produce anything, and he does so, he does so -without penalty, and is discharged ; if he does not, he is condemned Lq the value of the subject-matter of the suit. So the plaintiff runs no risk in suing one who is under no obligation to restore or produce, unless an action for calumnia be commenced against him. The authorities of the opposite school contend, however, that a defendant who has demanded an arbiter is barred from instituting a suit for • calumnia, since, by the mere fact of demanding an arbiter, he must be taken to have admitted that there is some reason for saying that he ought to restore or produce ; but we contend otherwise, and with reason, for one may demand an arbiter without entertaining any doubt as to his being in the right, or as to the result of his case. § 164. One who wishes to have an arbiter ought to demand one at the time, before leaving the court, i. e., before he leaves the praetor's presence ; for if the demand is made afterwards, it wiU not be granted. § 165. When, then, an arbiter has not been demanded, and the defendant has left the court without saying anything, the matter proceeds at his risk, for the plaintiff challenges him with the sponsio, " Unless, contrary to the edict of the praetor, he should not produce or restore," whereupon the defendant makes a restipulation in the contrary sense. The plaintiff then pre- sents to the defendant the fo7'mula of the sponsio, and the defen- dant hands to the plaintiff the formula of the restipulatio ; the plaintiff, however, adds to the formula of the sponsio a claim for judgment on the alleged obligation to restore or produce, so that, should he succeed on the sponsio, and the defendant neglect to restore or produce .... (the defendant would be condemned in the value of the thing in dispute). § 166. When the praetor has granted an edict, he gives the interim possession of the thing in dispute to the party who makes the highest bid for the usufructuary right, provided that he gives security to his opponent by the stipulatio styled fruc- tuaria ; the consequence being that, should the ease be decided GAIUS FOURTH (JOMMENTARY. 365 against him, lie has to pay double the value of the profits. Each then challenges the other by a sponsio, thus: "If, contrary to the edict of the prsetor, force has been used against the person in possession." Each then restipulates against the sponsio . . . . the yMi^fiij? before whom the matter comes investigates the matter of the interdict, i. e., ascertains which of the two possessed without force, or clandestine conduct, or by sufferance, the land or house at the time when the interdict was granted. When the judex has ascertained the facts and has decided in my favour, for example, he condemns my adversary to pay the amount of the sponsio and the restipiilatio that I have made with him, and consequently acquits me from the sponsio and restipu' latio that he has made with me ; in addition to which, if .my adversary has the interim possession, he having outbid me in the contest for the fruits, he is condemned in the action called Cas- celUanum or secittorium, unless he hands over the possession to me. § 167. If, then, he who has been successful in the bidding for the fruits does not succeed in showing that he was entitled to the possession, he has to pay, by way of penalty, the amount of the sponsio, that of the restipulatio, and that of the bid for the fruits, in addition to which he is ordered to deliver up possession, and what is more, he has to account for the profits he has reaped during his interim possession, for the amount of the bid for the fruits is not the value of the fruits, but a sum paid by way of penalty for having endeavoured to retain during that period possession of the property of another, and for having claimed the right to enjoy it. § 168. On the other hand, if he who has been defeated in the bidding for the fruits fails to prove his right to the possession, he has only to pay, by way of penalty, the amount of the sjjonsio and the restipiilatio. §169. It must be observed that he who is defeated in the bidding for the fruits is at liberty, even though no fructuary stipulations have been made, to proceed separately for the amount offered for the fruits, just as he can proceed separately for the recovery of the possession by the Oascellian or secutorium action ; and for this purpose a special form of proceeding has 366 OUTLINE OF KOMAN HISTORY. teen provided, called Judicumi fructuarium, by means of whicli the plaintiff can obtain security for tbe payment of the amomit awarded by the judex. This action, like the other, is styled secutorium, because it follows success on the sponsio, but- it is not properly called Cascellian also. § 170. Inasmuch as some persons after an edict had been granted, while adhering to the letter, refused to conform to the spirit of it, the proceeding became abortive, and the praetor .... provided (other) interdicts .... XXIII. De Pand temere Litigantium. § 171. In some cases an action for double the value of the matter in dispute is allowed against the defendant who denies his liability ; for example, in the case of BiCiiaQS judieati, depensij damni injurue, or for legacies left by damnatio. In some cases it is lawful to make a sponsio; for example, in the case of "peciinia certa credita " and "pecunia constituta" : in the case of "jiecunia certa eredita " for one-third, in that of "pecunia constituta " for one-half. § 172. When the defendant runs no risk, either of the sponsio, or action for the double, and the claim is confined to the simple principal, the praetor permits the plaintiff to require that the defendant shall state on oath that he does not defend vexatiously ; hence, as heirs, and those in the position of heirs, are never liable to penalties, and as females and pupils are relieved from the penalty of the sponsio, such persons are only required to take the oath. § 173. As examples of actions in which from the outset the claim is for more than the simple value of the subject-matter of the action, may be mentioned the aotions furtum manifestum for the four-fold value, furtiim nee manifestum for the double value, and furtum conoeptum and furtiim oMatum for the three-fold value. § 174. Vexatious conduct (calumnia) on the part of the plain- tiff is restrained either by the action calumnia, by a cross-action^ by an oath, or by a restijmlatio. § 176. The action " calumnia " may be brought (by way of cross-action) against any action, and lies to recover one-tenth GAIUS — rOUETH COMMENTARY, 367 of tHe value of the matter in dispute. In the case of an inter- dict it lies to recover one-fourth. § 176. The defendant is free either to reply by bringing the action calumnia, or to require the plaintiff to take the oath that his action is not brought vexa,tiously. § 177. The action contrarmm lies in certain specified cases ; for example, in that of the actio injuriarum, and the proceedings taken against a woman in which she is charged with having fraudulently transferred property to another, the possession of which she had acquired ventvis nomine ; and where it is alleged that having received the grant of possession from the praetor the plaintiff has been prevented from taking possession. When it is granted against the actio injuriarum, it lies to recover one-tenth ; when against either of the other two, it lies to recover one-fifth. § 178. The penalty is the greater in the case of the actio contrarmm, for in the judicium calumnice the defendant is not condemned in the tenth unless it appears that he was aware of the injustice of his action, and that he brought it relying for success rather on the error or injustice of the judex than on the - truth and merits of his own case ; for calumnia, like furtum, is a question of intention. In the actio contrarium, on the contrary, the plaintifE is always condemned if he loses his case, even though, labouring under a misapprehension, he believed that his action was just. § 179. Whenever the actio contrarium may be brought, the actio calumnia also lies, but one only can be brought. For the same reason, whenever the oath has been demanded as to vexatiousness neither the actio calumnia nor the actio contrarium win lie. § 180. The penalty of the restipiclatio also exists in certain cases only; and as m the cross-action the plaintiff is always condemned when he fails in the original suit — the question whether he knew or did not know that he was in the wrong not being inquired into— so the plaintifE is always condemned in the penalty of the restijnilatio. § 181 If the penalty of the restipulatio is claimed from the plaintiff, the actio calumnia cannot be brought against 368 OUTLINE OF KOMA^- HISTORY. him, nor can lie be compelled to take the oath, for it is plain enough that there can be no actio contrariwn (cross-action). § 182. In certain actions those against whom judgment is given are branded with infamy ; such is the case in the actio fiirti, vi bonorum raptorum, injuriarum, so in pro socio, fiduciw, futelce, mandati, and depositi. In .the case of furti, vi bonorum raptorum, and injuriarum, not only is the condemned branded with infamy, but any one who has bought the plaintiff off is equally branded, and that rightly, for there is a vast difference between the debtor ex delicto and the debtor ex contractu § 183. In conclusion, it must be borne in mind that .... he who sues and he who is sued .... patron and freedman .... and a penalty has been imposed on him who shall contravene. § 184. When any one is summoned into court by his adversary, and the matter is not settled on that day, he must enter into a radimoiiiiim, i.e., he must undertake to appear on the day fixed. § 185. In some cases the vadimonia are simple, i.e., without sureties, in others they are with sureties ; in some they are on oath, in others with recuperatores, that is to say, that should he fail to appear he will at once be condemned by the recuperatores in the sum of the vadimonium. All these matters are carefully set out in a praetor's edict. § 186. If the action is on a judgment, or for money paid, the amount of the radimoniKm is equal to the amount for which the action is brought; in other cases the plaintiff fixes the amount himself, he at the same time swearing that he does not demand that sum vexatiously. The vadimonium, however, in such cases must never exceed the half of the value of the subject of the action, nor must it exceed 100,000 sesterces. If then the matter in dispute is worth 100,000 sesterces, and it is not an action on a judgment, or for money paid, the amount of the vadimonium must not exceed 50,000 sesterces. § 1 87. Lastly, those who cannot be sued without the permission of the praetor cannot be compelled to furnish vadimonium against their will without his sanction. ( 369 ) THE INSTITUTES OF JUSTINIAN. BOOK I. Tit. I. De justitiA et jure. Justice is the constant and perpetual desire of giving to every man that which is due to him. i § 1. Jurisprudence is the knowledge of things divine and human, and the exact discernment of what is just and unjust. § 2. These definitions being premised, we shall now proceed. But it seems right to begin our Institutions in the most plain and simple manner, although afterwards we intend to treat every particular with the utmost exactness : for, if at first we overload the mind of the student with a variety of things, we may cause him either wholly to abandon his studies, or bring him late, through a series of laboxirs, to that knowledge which he might otherwise have attained with ease and expedition. § 3. The precepts of the law are these : to live honestly, not to hurt any man, and to give to every one that which is his due. § 4. The law is divided into public and private. Public law regards the state of the commonwealth ; but private law, of which we shall here treat, concerns the interest of individuals, and is tripartite, being collected from natural precepts, from the law of nations, and from the civil law of any particular city or state. Tit. II. Be Jure Naturali, Gentium, et Cwili. The law of nature is not a law to man only, but likewise to aU other animals, whether they are produced on the earth, in the air, or in the waters. From- hence proceeds the conjunction N. B li 370 OUTLINE OF ROMAN HISTORY. of male and female, wMch. we among our own species style matrimony ; from Hence arises the procreation of children, and our care in bringing them up. We perceive, also, that the rest of the animal creation are regarded as having a knowledge of this law, by which they are actuated. § 1. Civil law is distinguished* from the law of nations be- cause every community uses partly its own particular laws, and partly the general laws which are common to all maniind. That law which a people enacts for the government of itself is called the civil law of that people ; but that law which natural reason appoints for all mankind is called the law of nations, because all nations make use of it. The people of Rome are governed partly by their own laws, and partly by the laws which are common to all men. But we propose to treat sepa- rately of these laws in their proper places. § 2. All civil laws take their denomination from that city in which they are established : it would, therefore, not be erroneous to call the laws of Solon or Draco the civil law of Athens; and thus the law which the Roman people make use of is styled the civil law of the Romans, or of the Quirites, for the Romans are also called Quirites from Quirinus. Whenever we mention the words " civil law " without addition we emphatically denote our own law. Thus, the Greeks, when they say the poet, mean Homer ; and the Romans, Virgil. The law of nations is com- mon to mankind in general, and all nations have framed laws through human necessity ; for wars arose, and the consequences were captivity and servitude, both which are contrary to the law of nature, for by that law all men are free. But almost all contracts were at first introduced by the law of nations, as, for instance, buying, selling, letting, hiring, society, or deposit, or mutuum, and' others without number. § 3. The Roman law is divided, like the Grreeian, into written and unwritten. The written is six-fold, and comprehends the laws, the plebiscites, the decrees of the senate, the constitutions of princes, the edicts of magistrates, and the answers of the sages of the law. § 4. A law is what the Roman people enact at the request of a senatorial magistrate ; as, for instance, at the request of a JUSTINIAN BOOK I. 371 consul. A plebiscite is what the commonalty enact, when re- quested by a plebeian magistrate, as by a tribune. The word "commonalty" diiiers from "people," as a species from its genus ; for all the citizens, including patricians and senators, are comprehended under the term " people." The term " com- monalty " includes all the citizens, except patricians and sena- tors. The plebiscites, by the Hortensian law, began to have the same force as the laws themselves. § 5. A senatorial decree is what the senate commands and appoints ; for, when the people of Eome were increased to a degree which made it difficult for them to assenible for the enacting of laws, it seemed but right that the senate should be consulted instead of the whole body of the people. § 6. The constitution of the prince hath also the force of a law, for the people, by a law called lex regia, make a concession to him of their whole power. Therefore whatever the emperor ordains by rescript, decree, or edict, it is a law. These acts are called constitutions. Of these some are personal, and are not to be drawn into precedent ; for, if the prince hath indulged any particular man on accoimt of his merit, or inflicted any extra- ordinary punishment on a criminal, or granted him some un- precedented indulgence, these acts extend not to others in the like circumstances. But other constitutions are general, and undoubtedly bind all people. § 7. The edicts of the prsetors are also of great authority. These edicts are called the honorary law, because those who bear honours in the state have given them their sanction. The curule sediles also, upon certain occasions, published their edicts, which became a part of the^Ms honorarium. 8. The answers of the lawyers are the opinions of those who were authorized to give their answers concerning matters of law. For anciently they were persons who publicly interpreted the law, and to these the emperors gave a licence for that purpose.. They were called jurisconsuUi, and their opinions obtained so great an authority that it was not in the power of a judge to recede from them. § 9. The unwritten law is that which usage has approved, for B b2 ^72 OUTLINE OF EOMAN HISTOKY. all customs wMcli are established hj the eonsent of those who use them ohtain the force of a law. § 10. The division of the law into written and unwritten seems to have taken rise from the peculiar customs of the Athenians and Lacedaemonians. For the Lacedaemonians trusted chiefly to memory for the preservation of their laws, hut the laws of the Athenians were committed to writing. § 11. The laws of nature, which are ohserved hy aU natioas, inasmuch as they are the appointment of divine Providence, remain constantly fixed and iromutahle. But those laws, which every city has enacted for the government of itself, sufEer frequent changes, either hy tacit consent or hy some suhsequent law repealing a former. § 12. The laws which we make use of have relation either to persons, things, or actions. We must, therefore, first treat of persons, for it would he to little purpose to aim at knowledge iu the law while we are ignorant of persons on whose sole account the law was constituted. Tit. III. De Jure Personarum. The first general division of persons, in respect to their rights, is into freemen and slaves. § 1. Liherty or freedom, from which we are denominated free, is that natural power which we have of acting as we please, if not hindered hy force or restrained hy the law. § 2. Slavery is that hy which one man is made suhject t6 another, according to the law of nations, though contrary to natural right. § 3. Slaves are denominated servi, from the verh servare, to preserve : for it is the practice of our generals to sell their captives, heing accustomed to preserve, and not to destroy them. Slaves are also called mancipia [a manu capere), in that they are taken by the hand of the enemy. § 4. Slaves are either horn such, or hecome so. They are born slaves when they are the children of bond-women, and they become slaves either by the law of nations, that is, by captivity, or by the civil law, which happens when a free person, above the JUSTINIAN — BOOK I. 373. age of twenty, suffers himself to be sold for the sake of sharing, the price given for him. § 5. In the condition of slaves there is no diversity, hut among those who are free there are many : thus some are ingenui, others Kbertini. Tit. IV. Be Ingenuis, The term " ingenuous " denotes a person who is free at the instant of Ms birth, by being born in matrimony of parents who are both ingenuous, or both libertines, or of parents who differ in condition, the one being ingenuous and the other a libertine. But when the mother is free, although the father is a slave, or even unknown, the child is ingenuous ; and when the mother is free at the time of the birth of her infant, although she was a bond- woman when she conceived it, yet such infant will be^ ingenuous. Also if a woman, who was free at the time of con- ception, is afterwards reduced to slavery, and delivered of a child, her issue is, notwithstanding this, freeborn ;, for the misfortune of the mother ought by no means to prejudice her infant. It has been a question whether the child of a woman who is made free during pregnancy, but becomes bond before delivery, would- be freeborn ? Martianus proves that the child of such woman would be free, for, in his opinion, it is sufficient if the mother hath been free at any time between conception and deKvery ; and this opinion is strictly true. § 1. When any man is by birth ingenuous, it wiU not injure him to have been in servitude, and to have been afterwards manumitted ; for there are diverse constitutions by which it is enacted that manumission shall not prejudice free birth. Tit. V. De Lihertinis. " Libertines," or free men, are those who have been manu- mitted from just servitude. Manumission implies the giving of liberty : for whoever is in servitude is subject to the hand and power of another ; but whoever is manumitted is free from both. Manumission took its rise from the law of nations, for all men by the law of nature are bom in freedom ; nor was manu- 374 OUTLINE or koman history. mission heard of whilst servitude was uaknown. But when servitude, under sanction of the law of nations, invaded liberty, the benefit of manumission became then a consetjuence. For all men were at first denominated by one common appellation, till by the law of nations they began to be divided into three classes, viz., into Uberi, or those who are bom free ; into servi, or those who are in slavery ; and into Uhertini, who are those, who have ceased to be slaves by having freedom conferred upon them. § 1. Manumission is effected by various ways, either in the face of the church, according to the imperial constitutions, or by the vindida, or in the presence of friends, or by letter, or by testament, or by any other last will. Liberty may also be properly conferred upon a slave by diverse other methods, some of which were introduced by the constitutions of former emperors, and others by our own. § 2. Slaves may be manumitted by their masters at any time, even whilst the prsetor, the governor of a province, or the pro- consul is going to the baths, or to the theatre. § 3. The Uhertini were formerly distinguished by a threefold division. Those who were manumitted eometimes obtained what was called " the greater hberty," and thus became Boman citizens ; sometimes they obtained only " the lesser liberty," and became Latins, according to the law Junia Norhana ; and sometimes they obtained only " the inferior liberty," and be- came Bedititii, by the law ^Ua Sentia. But the condition of the Dedititii differing but little from slavery, the inferior liberty has been long since disused, neither has the name of Latius been frequent. It, therefore, being our ardent desire to extend our bounty, and to reduce all things into a better state, we have amended our laws by two constitutions, and re-established the ancient usage ; for anciently liberty was simple and undivided, that is, it was conferred upon the slave as his mannmitter possessed it; admitting this single difference, that the person manumitted be- came only a libertine, although his manumitter was ingenuous. We have entirely abolished the name of Bedititii by a consti- tution published among our decisions, by which, at the instance of Tribonian, our quaestor, we have suppressed all disputes con- JUSTINIAN — BOOK I. 375 oeming the anoient law. We haye also, at the suggestion of the same illustrious person, altered the condition of the Latins, and corrected the laws which related to them hy another con- stitution, which eminently distinguishes itself among the imperial sanctions, and we have made all the freed-men in general citizens of Eome, regarding neither the age of the person manumitted nor of. the manumitter, nor any of the forms of manumission as they were anciently observed. We have also introduced many new methods by which slaves may become Eoman citizens ; and the liberty of becoming such is that alone which can now be conferred. Tit. VI. Qui et ex quibus causis manumittere non possuni. It is not in the power of every master to manumit at will, for whoever manumits with -an intent to defraud his creditors may be said to commit a nullity, the law ^lia Sentia impediug all liberty thus granted. § 1. A master, who is insolvent, may appoint a slave to be his heir with liberty, that thus the slave may obtain his freedom, and become the only and necessary heir of the testator, on sup- position that no other person is also heir by the same testament, and this may happen, either because no other person was insti- tuted heir, or because the person so instituted is unwilling to act as such. This privilege of masters was, for wise and just reasons, established by the above-named law ^lia Sentia ; for it claimed a special provision that indigent men, to whom no man would be a voluntary heir, might have a slave for a neces- sary heir to satisfy creditors ; or otherwise, that the creditors themselves should make sale of the hereditary effects of the master in the name of the slave, lest the deceased should suffer ignominy. § 2. A slave also becomes free by being instituted an heir, although no mention was made of liberty in the testament ; for our imperial constitution regards not only masters who are insolvent, but, by a new act of our humanity, it extends gene- rally, so that the very institution of an heir implies the confer- ring of liberty. For it is highly improbable that a testator, 376 OUTLINE or boman histoky. although he hath omitted to mention liberty in his testament,, ■would be wOling that the person whom he hath instituted should remain in servitude, since a testator would thus defeat his own purpose and be destitute of an heir. § 3. A man may be said to manumit in order to defraud creditors if he is insolvent at the time when he manumits, or if he becomes insolvent by manumitting. It is, however, the prevailing opinion that liberty, when granted, is not impeached, unless the manumitter had an intent to defraud, although his goods are insufficient for the payment of his creditors, for men frequently imagine themselves to be in better circumstances than they reaUy are. We therefore understand liberty .to be then only impeded, when creditors are doubly defrauded — that is, both by the in,tention of the manumitter and in reality. § 4. By the before-named law JElia Sentia, a master under the age of twenty years cannot manumit, unless a just cause is assigned, which must be approved of by a council appointed for 'that purpose, at whose command liberty is conferred by the § 5. A minor is deemed to assign a just reason for manumis- sion when he alleges any of the following, viz. : that the person to be manumitted is his father or mother, his son or daughter, his brother or sister, his preceptor, his nurse, his foster-child, or his foster-brother ; or whenhe alleges that he would manumit his slave, in order to constitute him his proctor; or his bond- woman, with intent to marry her, on condition that the marriage is performed within six months. But a slave, who is to be con- stituted a proctor, cannot be manumitted for that purpose if he is under seventeen. , § 6. A reason which has once been admitted in favour of liberty, whether true or false, cannot afterwards be disallowed. § 7. When certain bounds were prescribed by the law ^lia Sentia to all under twenty, vpith regard to manumission, it was observed that any person who was fourteen complete might make a testament, institute an heir, and bequeath legacies, and yet that no person under twenty could confer liberty ; which was not longer to be tolerated : for can any just cause be assigned why a man, permitted to dispose of all his effects by JUSTINIAN BOOK I. 377 testament, should be debarred from enfranchising his slaves ? But liberty being of inestimable value, and our ancient laws prohibiting any person to make a grant of it who is under twenty years of age, we therefore make choice of a middle way, and permit all who are in their eighteenth year to confer Liberty by testament. For since, by aU former practice, persons at eighteen were permitted to plead for their clients, there is no reason why the same stability of judgment, which qualifies them to assist others, should not be of advantage to themselves, by enabling them to enfranchise their own slaves. Tit. YII. De lege Fusia Caninid tollendd. By the law Fusia Caninia, all masters were restrained from manumitting more than a certain number by testament ; but we have thought proper to abrogate this law, as odious and destruc- tive of liberty; judging it inhuman, that persons in health . should have power to manumit a whole family, if no just cause impedes the manumission, and that those who are dying should be prohibited from doing the same thiag by testament. Tit. YIII. Be his, qui sui ml alieni juris sunt. We now proceed to another division of persons ; for some are independent, and some are subject to the ,power of others. Of those who are subject to others, some are in the power of parents, others in the power of their masters. Let us then inquire what persons are in subjection to others ; for, when we apprehend who these persons are, we shall at the same time discover those who are independent. Our first inquiry shall be concerning those who are in the power of masters. § 1. All slaves are in the power of their masters, which power is derived from the law of nations : for it is equally observable among all nations, that masters have always had the power of life and death over their slaves, and that "whatsoever is acquired by the slave is acquired for the master. § 2. All persons, under our imperial government, are now prohibited to inflict any extraordinary punishment upon their 378 OUTLINE OF EOMAN HISTOEY. slaves without a legal cause. For, by a constitution of Anto- ninus, it is enacted, that whoever kills his own slave without a just cause, is not to be punished with less rigour than if he had killed a slave who was the property of another. The too great severity of masters is also restrained by another constitu- tion made by the same prince : for Antoninus, being consulted by certain governors of provinces concerning those slaves who take sanctuary either in temples, or at the statues of emperors, ordained that, if the severity of masters should appear at any time excessive, they might be compelled to make sale of their slaves upon equitable terms, so that the full worth of such slaves might be given to their masters ; and this constitution seems just and reasonable, inasmuch as it is a maxim, expedient for the commonwealth, "that no one should be permitted to misuse even his own property." Tit. IX. Be patria potestate. The children whom we have begotten in lawful wedlock are under our power. § 1. Matrimony .-is a social contract between a man and woman, obliging them to an inseparable cohabitation during life. § 2. The power which we have over our children is peculiar to the citizens of Rome ; for there is no other people who have the same power over their children which we have over ours. § 3. The issue of yourself and your legal wife are imme- diately under your own power. Also issue of a son and son's wife, that is, either grandsons or granddaughters by them, are equally in your power ; and the same may be said of great- grandchildren, &c. But children born of a daughter wiU not be m your power, but in the power of their own father or father's father, &c. Tit. X. Be nuptiis. The citizens of Rome contract valid matrimony when they follow the precepts of the law, the males when they arrive at puberty, and the females when they attain to a marriageable Sae,p318,J)e.Nh JUSTINIAN BOOK I. 379 age. The males, whether they ampatres familiarum, fathers of a family, or filii familiarum, the sons of a family ; but if they are the sons of a family they must first obtain the consent of the parents, under whose power they are. For reason, both natural and civil, convinces us that the consent of parents should precede marriage : and from hence it became a question whether the son of a madman could contract matrimony. But the opinions of lawyers being various, we published our decision, by which the son as well as the daughter of a madman is permitted to marry without the intervention of his father, provided always that the rules set forth in our constitution are observed. § 1. We are not permitted to marry all women without dis- tinction ; for there are some with whom marriage is forbidden. For matrimony must not be contracted between parents and their children, as between a father and daughter, a grandfather and his granddaughter, a mother and her son, a grandmother and her grandson; and the same prohibition extends with respect- to all ascendants and descendants in a right line in infinitum. And if such persons cohabit together, they are said to have contracted a criminal and incestuous marriage; which is un- doubtedly true, inasmuch as those who only hold the place of parents and children by adoption can by no means marry; and the same law remains in. force, even after the adoption is dissolved. Whoever therefore hath once been either your adopted daughter or granddaughter, the same cannot afterwards be taken by you to wife, although she hath been emancipated. § 2, Matrimony is also prohibited between collaterals ; but the prohibition is not of so great an extent as that which relates to parents and their children. A brother and sister are forbidden to marry, whether they are the children of the same father and mother, or of either. And if any person becomes your sister by adoption, as long as such adoption subsists a marriage contracted bjetween her and you cannot be valid ; but when the adoption is destroyed by emancipation, she may then be taken to wife. Al so if you yourself are emancipated, there will not then remain any impediment, although your sister by adoption is not so. From hence it aippears that if a man would adopt his son-in-law, he should first emancipate his daughter; and that whoever 380 OUTLINE OF KOMAN HISTORY. woiild adopt his daughter-in-law should previously emancipate, his son. § 3. It is unlawful to marry the daughter of a brother or a sister ; neither is it lawful to marry the granddaughter of a brother or sister, although they are in the fourth degree. For when we are prohibited to take the daughter of any person in marriage, we are also prohibited to take his granddaughter. But it appears not that there is any impediment against the marriage of a son with the daughter of her whom his father hath adopted, for they bear not to each other any relation either natural or civil. § 4. The children of two brothers or two sisters, or of a brother and sister, may legally be joined together in matrimony. § 5. A man is not permitted to marry his aunt on the father's side, although she is only so by adoption ; neither can a man marry his aunt on the mother's side; because they are both esteemed to be the representatives of parents. -And for the same reason no person can contract matrimony with his great-aunt, either on his father's or his mother's side. § 6. We are under a necessity of abstaining from certain mar- riages, through a veneration for affinity ; for it is unlawful to marry a wife's daughter or a son's wife, in that both are in the place of daughters ; and this rule must be understood to relate not only to those who actually are, but also to those who have been, our daughters-in-law at any time. For marriage with a son's wife, whilst she continues to be his wife, is prohibited on another account, viz., because the same woman cannot, at one and the same time, be the wife of two. And the marriage of a man with his wife's daughter whilst her mother continues to be his wife, is also prohibited, because it is unlawful for one man to have two wives at the same time. § 7. A man is forbidden to marry his wife's mother and his father's wife, because they both hold the place of mothers : and this injunction must be observed, although the affinity is dis- solved : for, omitting our veneration for affinity, a father's wife, whilst she continues to be so, is prohibited to marry, because no woman can have two husbands at the same time. A man is also restrained from matrimony with his wife's mother, her daughter JUSTINIAN— BOOK I. 381 continuing to he his wife, because it is against tHe law to have two wives. § 8. The son of a husband by a former wife, and the daughter of a wife by a former husband, and e contra, the daughter of a hus- band by a former wife, and the son of a wife by a former husband, may lawfully contract matrimony, even though a brother or sister is born of such second marriage between their respective parents. § 9. If a wife, after divorce, brings forth a daughter by a second husband', such daughter is not to be reckoned a daughter- in-law to the first husband. It is, nevertheless, the opinion of Julian, that we ought to abstain from such nuptials. It is also evident that the espoused wife of a son is not a daughter-in-law to his father ; and that the espoused wife of a father is not a step-mother to his son ; yet those who abstain from such nuptials demean themselves rightly. § 10. It is not to be doubted, but that servile cognation is an impediment to matrimony, as when a father and daughter, or a brother and sister are manumitted. § 11. There are, besides these already mentioned, many other persons who, for diverse reasons, are prohibited to marry with each other ; all whom we have caused to be enumerated in the Digests, collected from the old law. § 12. If any persons presume to cohabit together in contempt of the rules which we have here laid down, they shall not be deemed husband and wife, neither shall their marriage, or ■ any portion given on account of such marriage, be valid ; and the children bom in such cohabitation shall not be under the power of their father. For, in respect to paternal power, they resemble the children of a comrdon woman, who are looked upon as not having a father, because it is uncertain who he is. They are therefore called in Latin spurii, and in Greek anxropEs, i.e., with- out a father ; and from hence it follows that, after the dissolution of any such marriage, no portion or gift, propter nuptias, can legally be obtaiued. But those who contract such prohibited matrimony must undergo the further punishments set forth in our constitutions. § 13. It sometimes happens, that the children who at the time, of their birth were not under the power of their' parents, are 382 OUTLINE OF ROMAN HISTOKT. reduced under it afterwards. Thus, a natural son, who is made a deourion, becomes subject to his father's power ; and he, alsOj who is born of a free woman, with whom marriage is not pro- hibited, will likewise become subject to the power of his father, as soon as the marriage instruments are drawn, as our constitu- tion directs, which allows the same J)enefit to those who are bom before marriage as to those who are born subsequent to it. Tit. XI. De adoptionibus. It' appears from what has been already said, that all natural children are subject to paternal power. We must now add, that not only natural children are subject to it, but those also whom we adopt. § 1. Adoption is made two ways, either by a rescript from the emperor, or by the authority of the magistrate. The imperial rescript empowers us to adopt persons of either sex, who are sui juris, i.e., independent, and not under the power of parents ; and this species of adoption is called arrogation. But it is by the authority of the magistrate that we adopt persons actually under the power of their parents, whether they are in the first degree, as sons and daughters, or in an inferior degree, as grandchildren or great-grandchildren. § 2. But now, by our constitution, when the son of a family is given in adoption by his natural father to a stranger, the right of paternal power in the natural father is not dissolved, neither does anything pass to the adoptive father, neither is the adopted son in his power, although such son is hj us allowed to have a right of succession to his adoptive father if he dies intestate. But if a natural father should give his son in adop- tion not to a stranger, but to the maternal grandfather of such son, — or if a natural father^ who hath been emancipated, should give his son, begotten after emancipation, to his paternal or maternal grandfather or great-grandfather, — in this case, the rights of nature and adoption concurring, the power of the adoptive father is established both by natural ties and legal adoption, so that the adopted son would be both in the family and under the power of his adoptive father. JUSTINIAN BOOK I. 383 § 3. "Wlien any person, not arrived- at puberty, is arrogated by the imperial rescript, the cause is first inquired into, that it may be known whether the arrogation is justly founded and expedient for the pupil; for such arrogation is always made on certain conditions ; and the arrogator is obliged to give caution before a public notary, thereby binding himself if the pupil should die within the age of puberty to restore all the goods and effects of such pupil to those who would hjaye succeeded him if no arrogation had been made. The arrGga|;or is also prohibited to emancipate, unless he has given legal proof that his arrogated son deserves emancipation ; and even then he is bound to make full restitution of all things belonging to such son. Also, if a father upon his death-bed hath disinherited his arrogated son, or when in health hath emancipated him without a just cause, then the father is comr manded to leave the fourth part of all his goods to his son, besides what such son brought to him at the time of arrogation, and acquired for him afterwards. § 4. A junior is not permitted to adopt a senior, for adoption imitates nature ; audit seer[is_iin.natural that a son should be older than his father. He, therefore, who would either adopt or arrogate should be a senior to his adopted or arrogated son by full puberty — that is, by eighteen years. § 5: It is lawful to adopt a person, either as a grandson or granddaughter, great-grandson or great-granddaughter, or in a more distant degree, although the adopter hath no son. § 6. A man may adopt the son of another as his grandson, and thfe grandson of another as his son. § 7; If any man who has already either a natural or an adopted son is desirous to adopt another as his grandson, the consent of his son, whether natural or adopted, ought in this case to be first obtained, lest a suus hceres, or proper heir, should be intruded upon him. But, on the contrary, if a grand- father is willing to give his grandson in adoption, the consent of the son is not necessary. § 8. He who is either adopted or arrogated bears similitude in many things to a son born in lawful matrimony ; and there- fore whoever is adopted either by rescript, or before a prsetor, or 384 OUTLINE OF ROMAN HISTORY. before the governor of a province, the same, if he is not a stranger, may be given in adoption to another; § 9. It is observed as a common rule, both in adoption and . arrogation, that such who are impotent (whom we denominate spadones) may adopt children, but that those who are castrated cannot adopt. § 10. "Women are also prohibited to adopt, for the law does not permit them to have even their own children under their power ; but when death hath deprived them of their children they may, by the indulgence of the prince, adopt others, as a comfort and recompense for their loss. § 11. It is peculiar to that kind of adoption which is made by rescript, that if a person, having children under his power, should give himself in arrogation, both he as a son and his children as grandchildren would become subject to the power of the arro- gator. It was for this reason that Augustus did not adopt Tiberius till Tiberius had adopted Grermanicus, so that Tiberius became the son and Germanious the grandson of Augustus at the same instant by arrogation. § 12. The following answer of Cato was. approved of by the ancient lawyers, viz., that slaves adopted by their masters obtain freedom by the adoption. And, from hence instructed, we have enacted by our constitution that a slave whom any master nomi- nates to be his son in the presence of a magistrate becomes free by such nomination, although it does not convey to him any final right. Tit. XII. Quibus modis jus jiatrice potesfatis sohitur. Let us now inquire how those who are in subjection to others can be freed from that subjection. The means by which slaves obtain their liberty may be fully understood by what we have already said in treating of manumission; but those who are under the power of a parent become independent at his death ; yet this rule admits of a distinction. When a father dies his sons and daughters are, without doubt, independent; but by the death of a, grandfather, his grandchildren do not become independent, unless it happens that there is an impossibility of their ever falling under the power of their father. Therefore, JUSTINIAN BOOK I. 385 if their father is alive at the death of their grandfather, and they are till then under his power, the grandchildren, in this case, heoome subject to the power of their father. But if their father is either dead or emancipated before the death of their grandfather, , they then cannot fall under the power of their father, and therefore become independent. § 1. If a man, upon conviction of some crime, is deported into an island, he loses the rights of a Eoman citizen, and it follows that the children of such a person cease to be under his power, as if he was naturally dead. And, by a parity of reasoning, if a son is deported, he ceases to be under the power of his father. But if, by the indulgence of the prince, a criminal is wholly restored, he regains instantly his former condition. § 2. A father who is relegated retains his paternal power, and a son who is relegated still remains under the power of his father. § 3. When a man is judicially pronounced to be the slave of punishment, he loses his paternal jurisdiction. The slaves of punishment are those who are condemned to the mines, or sentenced to be destroyed by wild beasts. § 4. If the son of a family becomes a soldier, a senator, or a consul, he stOl remains under the power of his father, from' which neither the army, the senate, nor consular dignity can emancipate him. But it is enacted by our constitution that the patrician dignity, conferred by our special diploma, shall free every son from all paternal subjection. Fo,r it is absurd to think that a parent may emancipate his son, and that the power of an emperor should not be sufficient to make any person independent whom, he hath chosen to be a father of the commonwealth, or, in other words, a senator. § 5. If a parent is taken prisoner by the enemy, although he thus becomes a slave, yet he loses not his paternal power, which remains in suspense by reason of a privilege granted to all prisoners, namely, the right of postliminium : for captives, when they obtain their liberty, are re-possessed of all their former rights, in which paternal power of course must be included; and at their return they are supposed, by a fiction of law, never to have been absent. If a prisoner dies in captivity, his son is N. c c 386^ OUTLINE or ROMAN HISTOKY. deemed to have become independent, not from the time of the death of his father, hut from the commencement of his captivity. Also if a son or grandson hecomes a prisoner, the power of the parent is said, for the reason before assigned, to be only in suspense. The term postliminium is derived from post and limen. We therefore aptly use the expression reversus pastliminio, when a person who was a captive returns within our own confines. § 6. Children also cease to he under the power of their .parents by emancipation. Emancipation was effected, according to our ancient law, either by iniaginary sales and intervening manu; missions, or by the imperial rescript ; but it has been our care to reform these ceremonies by an express constitution, so that parents may now have immediate recourse to the proper judge or magistrate, and emancipate their children, grandchildren, &o., of both sexes. And also, by a prsetorian edict, the parent is allowed to have the same right in the goods of those whom he emancipates, as a patron has in the goods of his freedman. And further, if the children emancipated are within the age of puberty, the parent by whom they were emancipated obtains the right of wardship or tutelage by the emancipation. § 7. A parent having a son under his power, and by that son a grandson or granddaughter, may emancipate his son, and yet retain his grandson or granddaughter in subjection. He may also manumit his grandson or granddaughter, and still retain his son under his power ; or, if he is so disposed, he may make them all independent. And the same may be said of a great- grandson or a great-granddaughter. § 8. If a father gives his son in adoption to the natural grandfather or great-grandfather of such son, strictly adhering to the rules laid down in our constitutions for that purpose enacted, which enjoin the parent to make his intention manifest before a competent judge, in the presence of the person to be adopted, in nowise contradicting, and also in the presence of the , adopter, th6n does the right of paternal power pass wholly from the natural father to the adoptive, in whose person, as we have before observed, adoption has its fullest extent. § 9. It is necessary to be known, that if a son's wife hath conceived, and you afterwards emancipate that son, or give in JUSTINIAN BOOK T. 387 adoption Ms wife being pregnant, the child which she brings forth will, notwithstanding this, be born under your paternal authority. But if the conception is subsequent to the emanci- pation or adoption, the child so conceived becomes subject at his birth either to his emancipated father, or his adoptive grand- father. § 10. Children, either natural or adopted, can rarely compel their parents by any method to dismiss them from subjection. Tit. XIII. Be tutelis. Let us now proceed to another division of persons. Of those who are not in the power of their parents, some are under tutelage, some under euration, and some under neither. Let us then inquire what persons are under tutelage or euration, for thus we shall come to the knowledge of those who are not subject to either. We will fixst treat of those persons who are under tutelage. § 1. Tutelage, as Servius has defined it, is an authority and power given and permitted by the civil law, and exercised over such independent persons who are unable, by reason of their age, to protect themselves. § 2. Tutors are those who have the authority and power before mentioned, and they take their name from the nature of their ofiBce. For they are called tutors, quasi tuitores; as those who have the care of the sacred buildings are called ceditui, quod cedes tueantur. § 3. Parents are permitted to assign tutors by testament to such of their children who are not arrived at puberty, and are under their power. And this privilege of parents extends without exception over sons and daughters. But grandfathers can only give tutors to their grandchildren when it is impossible that such grandchildren should ever fall under the power of their father after the death of their grandfather. And therefore, if your son is in your power at the time of your death, your grandchildren by that son cannot receive tutors by your testa- ment, although they were actually in your power, because at your decease they will become subject to their father- cc2 3S8 OUT],INE OF ROMAN HISTORY. § 4. As posthumous children are in many cases reputed to have teen born before the death of their fathers, therefore tutors may be given by the testament of a parent as well to a post- humous child as to a child already born, if such posthumous child, had he been bom in the lifetime of his father, would have been his proper heir and under his power. § 5. But if a father gives a tutor by testament to his emancipated son, such tutor must be confirmed by the sentence of the governor of the province without inquisition. Tit. XIV. Qui testamento tutores dari possunt. Not only the father of a family may be appointed by testa- ' ment to be a tutor, but also the son of a family. § 1. A man may by testament assign his own slave to be a tutor with liberty. But note, that if a master by testament appoints his slave to be a tutor without mentioning liberty, such slave seems tacitly to have received immediate liberty, and is thus legally enabled to commence a tutor; yet if a testator through error, imagining his slave to be a free person, by testa- ment appoint him as such to be a tutor, the appointment will not avail. Also the absolute appointment of another man's slave to be a tutor is altogether ineffectual ; but if the appointment is upon condition that the person appointed obtains his freedom, then it is made profitably ; but if a man by testament appoints his own slave to be a tutor when he shall obtain his liberty, the appointment will be void. § 2. If a madman or a minor is by testament appointed to be a tutor, the one shall begin to act when he becomes of sound mind, and the other when he has completed his twenty-fifth year. I 3. It is not doubted but that a testamentary tutor may be given either to a certain time, or from a certain time, or condi- tionally, or before the institution of an heir. § 4. A tutor cannot be assigned to any particular thing,- or upon any certain account, but can only be given to persons. § 5. If a man by testament nominates a tutor for his sons or his daughters, the same person seems also to be appointed tutor to his posthumous issue ; because under the appellation of son or JUSTINIAN — BOOK I. - 389 daughter a posthumous child is comprehended. But should it be questioned whether grandchildren are denoted hy the word sons, and can receive tutors hy that denomination, we answer, that under the general term children grandchildren are un- doubtedly included, but that the word sons does not comprehend them ; for the words son and grandson widely differ in their signification. But if a testator assigns a tutor to his descendants, it is evident that not only his posthumous sons are comprehended, but all his other children. Tit. XV. De legitimd agnatorum tutela. The agnati are by the law of the Twelve Tables appointed to be tutors to those to whom no testamentary tutor was given ; and these tutors are called legitime. § 1. Agnati are those who are collaterally related to us by males, as a brother by the same father, or a son of a brother, or by him a grandson ; also a father's brother, or the son of such brother, or by him a grandson. But those who are related to us by a female are not said to be agnate, but cognate, bearing pnly a natural relation to us. Thus the son of a father's sister is not related to you by agnation, but by cognation ; and you are related to him in the same manner, that is, by cognation ; for the children of a father's sister follow the family of their father, and not that of their mother. § 2. The law of the Twelve Tables, in calling the agnati to tutelage in case of intestacy, relates not solely to persons alto- gether intestate, in whose power it was to have appointed a tutor, but extends also to those who are intestate only in respect of tutelage ; and this may happen if a tutor, nominated by testament, should die in the lifetime of the testator. § 3. The right of agnation is taken away by almost every diminution or change of status; for agnation is but a name given by the civil law ; but the right of cognation is not thus altered ; for although civil policy may extinguish civil rights, yet over our natural rights it has no such power. 390 " OUTLINE OF EOMAN HISTOBY. Tit. XVI. Be capitis diminutione. Dimimition is the change of man's former condition, which is effected three ways, according to the threefold division of dimi- nution into the greater, the less, and the least. § 1. The greater diminution is when a man loses both the rights of a citizen and his liberty ; which is the case of those who by the rigour of their sentence are pronounced to be the slaves of punishment, — and of freedmen who are condemned to slavery ' for ingratitude to their patrons, — and of all such who suffer themselves to be sold in order to become sharers of the price. § 2. The less or mesne diminution is when a man loses the rights of a citizen, but retains his liberty, which happens to bim who is forbidden the use of fire and water, or to him who is transported into an island. § 3. The least diminution is said to have been suffered when the condition of a man is changed without the forfeiture either of his civil rights or his liberty, as when he who is independent becomes subject by adoption, or when the son of a family hath been emancipated by his father. § 4. The manumission of a slave works not any change of status in him, because he had before manumission no status or civil capacity. § 5. Those whose dignity is rather changed than their status are jiot said to have suffered diminution ; and therefore it appears that they who are removed from the senatorial dignity do not suffer diminution. § 6. What has already been said in a section of the preceding title, to wit, that the right of cognation remains after diminu- tion, relates only to the least diminution. For by the greater diminution, as, for instance, by servitude, the right of cognation is wholly destroyed, even so as not to be recovered by manirmis- sion. The right of cognation is also lost by the less or mesne diminution, as by deportation into an island. § 7. Although the right of tutelage belongs to the agnati, yet it belongs not to all the agnati in common, but to those only who are in the nearest degree. But if there are many in the JUSTINIAN— BOOK T. 391 same degree, the tutelage belongs to all of them, however mimerous. For example, if there are several brothers, they are all called equally to tutelage. Tit. XVII. De kgitimA patronorum tufeld. By the same law of the Twelve Tables, the tutelage of freed- men and freedwomen is adjudged to belong to their patrons, and to the children of such patrons ; and this tutelage is called legitime, although it exists not nominally in the law, but it is as firmly established by interpretation as if it had been intro- duced by express words. For, inasmuch as the law commands that patrons and their children shall succeed to the inheritance of their freedmen or freedwomen who die intestate, it was the opinion of the ancient lawyers that tutelage also by implication should belong to patrons and their children. And the law which calls the agnati to the inheritance commands them to be tutors, because the advantage of succession ought to be attended in most cases with the burden of tutelage. "We have said in most cases, because, when any person not arrived at puberty is manumitted by a female, such female is called to the inheritance, but not to the tutelage. Tit. XVIII. De kgitimcL parentum tuteld. In similitude of the tutelage of patrons another kind of tute- lage is received, which is also called legitime ; for if any parent emancipates a son or a daughter, or a grandson or a grand- daughter who is the issue of that son, or any others descended from him, by males in a right line and not arrived at puberty, then shall such parent be their legitime tutor. Tit. XIX. De fiduciarid tuteld. There is another kind of tutelage, called fiduciary ; for if a parent emancipates a son or a daughter, a grandson or a grand- daughter, or any other of his children not arrived at puberty, he is then their legitime tutor ; but at his death his male chil- dren of age become the fiduciary tutors of their own sons, or of 392 OUTLINE OK ROMAN HISTORY. a brother, or sister, or of a brother's children emancipated by the deceased. But when a patron who is a legitime tutor dies, his children also become legitime tutors. The reason of which difference is this : a son, although he was never emancipated, becomes independent at the death of his father ; and therefore, as he falls not under the power of, his brothers, it f oUows that he cannot be under their legitime tutelage. But the condition of a slave is not altered at the death of his master, for he then becomes a slave to the children of the deceased. It must here be noted that the persons above mentioned cannot be called to tutelage unless they are of full age ; and our constitution hath in general commanded this rule to be observed in all tutelage and curations. Tit. XX. Be Atiliano tutore et eo, qui ex lege Julia et, Titid dabatur. By virtue of the law Atilia, the praetor of the city, with a majority of the tribunes, had authority to assign tutors to aU such who otherwise were not entitled to tutors, but in the provinces tutors were appointed by the respective governors of each province, in consequence of the law Julia and Titia. § 1. If a tutor had been given by testament conditionally, or from a certain day, another tutor might have been assigned by virtue of the above-named laws whilst the condition depended or tin the day came. Also if a tutor had been given simply, i. e., upon no condition, yet as long as the testamentary heir deferred taking upon him the inheritance, another tutor might have been appointed during the interval. But the office of such tutor ceased when the cause ceased for which he was appointed, as when the event of the condition happened, the day came, or the inheritance was entered upon. § 2. By the Atilian and Julio-Titian laws, if a tutor was taken by the enemy, another tutor was immediately requested, whose office ceased, of course, when the first tutor returned from cap- tivity, for he then resumed the tutelage by his right of return. § 3. The Atilian and Julio-Titian laws concerning the ap- pointment of tutors were first disused when the consuls began to give tutors to pupils of either sex with inquisition ; and the JUSTINIAN — BOOK I. 393 praetors were afterwards invested witli the same authority by - the imperial constitutions. For, by the above-mentioned laws, no caution was required from the tutors for the security of their pupils, neither were these tutors compelled to act. § 4. But, by the later usage, at Eome the prsefect of the city, or the prsetor, according to his jurisdiction, and in the provinces the governors [each in his respective province], may assign tutors, after an inquiry into their morals and circum- stances ; and an inferior magistrate, at the command of a gover- nor, may also appoint tutors, if the possessions of the- pupil are not large. § 5. But we, for the ease of our subjects, have ordained by our constitution, that the judge of Alexandria, and the magistrates of every city, together with the chief ecclesiastic, may give tutors or curators to pupils or adults whose fortunes do not exceed five hundred aurei, without waiting for the com- mand of the governor to whose province they belong. But all such magistrates must, at their peril, take from every tutor so appointed the caution required by our constitution. § 6. It is agreeable to the law of nature, that all such who are not arrived at puberty should be put under tutelage, to the intent that all who are not adults may be under the government of proper persons. § 7. Tutors, therefore, since they have the administration of the afiairs of their pupils, may be compelled to, render an account, by the action of tutelage, when their pupils arrive at puberty. Tit. XXI. Be auctoritate tutorum. The authority or confirmation of a tutor is in some cases neces- sary, and in others not necessary. When a man stipulates to . make a gift to a pupil, the authority of the tutor is not requisite ; but i£ a pupil enters into a contract, there is a necessity for the tutor's authority ; for it is an estabhshed rule, that pupils may better their condition, but not impair it, without the authority of their tutors. And therefore, in all cases where there are mutual obligations, as in buying, selling, letting, hiring, mandates, deposits, &c., he who contracts with a pupil is bound by the 394 OUTLINE OF ROMAN HISTOKY. contract; but the pupil is not bound unless the tutor hath autho- rized it. § 1. But no pupil without the au'thority of his tutor can enter upon an inheritance, or take upon him the possession of goods, or an inheritance in trust ; for, although there may be a proba- bility of profit, there is a possibility^ of damage. § 2. If a tutor would authorize an act which he esteems advantageous to his pupil, such tutor ought to be present at the negotiation ; for the authority of a tutor can haye no effect when . given by letter, by messenger, or after a contract is finished. § 3. When a suit is to be commenced between a tutor and his pupil, inasmuch as the tutor cannot exercise his authority as such against himself, a curator, and not a praetorian tutor (as it was formerly the custom), is appointed, by whose intervention the suit is carried on ; and when it is determined the curatorship ceases. Tit. XXII. Quibus modis tutela finitur. Pupils, both male and female, are freed from tutelage when they arrive at puberty. The ancients judged of puberty in males not by years only, but also by the habit of their bodies. But our imperial majesty, regarding the purity of the present times, hath esteemed the inspection . of males to be an immodest practice, and hath it proper, that the same decency which was ever observed in respect to females, should be also observed in respect to males ; and therefore by our sacred constitution, we have enacted, that puberty in males should be reputed to com- mence immediately after the completion of their fourteenth year. But in relation to females, we leave that wholsesome and ancient rule of law unaltered, by which they are esteemed marriageable after the twelfth year of their age is completed. § 1. Tutelage is determined before puberty if the pupil is either arrogated, or suffers deportation ; and it also determines if he is reduced to slavery, or becomes a captive. § 2. But if a testamentary tutor is given upon a certain con- dition, after that condition is fulfilled the tutelage ceases. § 3. Tutelagel is also determiued either by the death of the tutor or by the death of the pupil. JUSTINIAN — BOOK I. 395 § 4. When a tutor suffers the greater diminution of state, by which he at once loses his liberty and the privileges of a citizen, every tind of tutelage is then extinguished. But if the least diminution only is suffered, as when a tutor gives himself in arrogation, then no species of tutelage is extinguished except the legitime. But every diminution of state in pupils takes away aU tutelage. § 5. Those who are by testament made tutors for a term only, are at the expiration of such term discharged from the tutelage. § 6. They also cease to be tutors who are either removed from their office upon suspicion or excuse, and exempt themselves from the burden of tutelage for Just reasons, of which we shall treat hereafter. Tit. XXin. De curatorii Males arrived at puberty and females marriageable do never- theless receive curators till they have completed their twenty- fifth year ; for, although they have attaiued to puberty, they are not as yet of an age to take a proper care of their own affairs. § 1. Curators are appointed by the same magistrates who appoint tutors. A curator cannot be absolutely given by tes- tament, but a curator named in a testament must be confirmed such either by a praetor or the governor of a province. § 2. No adults can be obliged to receive curators unless ad litem, for a curator may be appointed to any special purpose, or to the management of any particular affair. ■ § 3. By a law of the Twelve Tables, all madmen and prodigals, although of fuU age, must nevertheless be under the curation of their agnati. But if there are no agnati, or if such, who do exist, are unqualified, then curators are appointed at Rome by the prsefect of the city, or the praetor, and in the provinces by the governors, after the requisite inquiry. § 4. Those who are deprived of their intellects, or deaf, or mute, or subject to any continual disorder, inasmuch as they are unable to take a proper care of their own affairs, must be placed under curators. § 5. Sometimes even pupils receive curators ; for instance, 396 OUTLINE OF ROMAN HISTOBV. when the legal tutor is unqualified ; for a tutor niust not be given to him who already has a tutor. Also, if a testamentary tutor, or a tutor given by a praetor or the governor of a province, appear to be afterwards incapable of executing his trust, it is usual, although he is guilty of no fraud, to appoint a curator to be joined with him. It is also usual to assign curators in the place of such tutors who are not whoUy excused, but excused for a time only. § 6. If a tutor, b^ illness or any other necessary impediment, should be hindered from the personal execution of his office, and his pupil should be absent, or an infant, then the prsetor or the governor of the province shall decree any person whom the tutor approves of to be the pupil's agent, for whose conduct the tutor must be answerable. Tit. XXIV. Be satisdatione tutorum vel curatorum. It is a branch of the praetor's office to see that tutors and curators give a sufficient caution for the safety and indemnifi- cation of their pupils. But this is not always necessary ; for a testamentary tutor is not compelled to give caution, inasmuch as his fidelity and diligence seem sufficiently approved of by the testator. Also all tutors and curators, appointed to be such after inquiry, are supposed in every respect to be qualified, and are therefore not obliged to give security. ' § 1. If two or more are appointed by testament, or by a magis- trate, after inquiry, to be tutors or curators, any one of them, by offering caution, may be preferred to the sole administration, or cause his co-tutor or co-curator to give caution in order to be admitted himself to the administration. Thus it appears that a man cannot demand security from his co-tutor or co-c\irator ; but that, by ofEering caution himself, he may compel his co-tutor or co-curator to give or receive caution. But when no security is offered, if the testator hath appointed any particular person to act, such person must be preferred ; but if no particular person is specified by the testator, then must the administration be committed to such person or persons whom a majority of the tutors shall elect, acoqrding to the praetorian edict ; but if they JUSTINIAN^BOOK I. 397 disagree in their choice, the praetor may interpose his authority. The same rule is also to he ohserved when many, either tutors or curators, are nominated to the magistrate, viz., that a majority of them may appoint one of their number, to whom the adminis- tration shall be committed. § 2. It is necessary to be known that tutors and curators are not the only persons subject to an action on account of the administration of the affairs of pupils, minors, and others under their protection. For a subsidiary action, which is the last remedy to be used, will also Ke against a magistrate either for entirely omitting to take sureties, or for taking such as are insufficient ; and this action, according to the answers of the lawyers as well as by the imperial constitutions, is extended even against the heir of any such magistrate. § 3. And by the same constitution it is expressly enacted, that all tutors and curators who refuse to give caution may be com- pelled to it. § 4. Neither the prsefect of the city, nor the prsetor, nor the governor of a province, nor any other who has power to assign tutors, shall be subject to a subsidiary action ; but those magis- trates only are liable to it who exact the caution. Tit. XXV. De excusationibus tutorum ml curatorum. Persons who are nominated to be either tutors or curators may, upon diverse accounts, excuse themselves ; but the most general plea offered is that of having children, whether they are subject or emancipated. For at Eome, i£ a man has three children Kving, in Italy four, or in the provinces five, he may therefore be excused from tutelage and curation, as well as from other employments of a public nature; for both tutelage and curation are esteemed public offices. But adopted children wiU not avail the adopter ; they will nevertheless excuse their natural father who gave them in adoption. Also, grandchildren by a son, when they succeed in the place of their father, will excuse their grandfather ; yet grandchildren by a daughter will not excuse him. But those, children only who are living can excuse from tutelage and curation, for the deceased are of no service ; 398 OUTLINE OF E0MA3SI HISTORY. and should it now be demanded, wliether a parent can avail himself of those sons whom war has 'destroyed, it must he answered, that he can avail himself of those only who have perished in hattle ; for those who have fallen for the republic are esteemed to live for ever in the immortality of their fame. § 1. The Emperor Marcus declared by rescript from' his semestrial council, that whoever is engaged in the adminis- tration of affairs relating to the treasury may be excused from tutelage and curation whilst he is so employed. § 2. Those who are absent on the affairs of the republic are exempted from tutelage and curation ; and if such who are already assigned to be either tutors or curators should afterwards be absent on the business of the republic, their absence is dis- pensed with whilst they, continue in the public service, and curators must be appointed in their place; but when such tutors return, they must again take upon them the burden of tutelage. But they are not entitled (as Papinian asserts in the fifth book of his answers) to the privilege of a year's vacation, for that term is allowed to those only who are called at their return to a new tutelage. § 3. 'By a rescript of the Emperor Marcus all superior magis- trates may, as such, excuse themselves ; but they cannot desert a tutelage when once they have undertaken it. § 4. No man can excuse himself from taking the office of a tutor or curator by alleging a law suit with a pupil or minor, unless the suit is for all the goods or the whole inheritance of such pupil or minor. § 5. Three tutelages or curatorships, which are not acquired merely for advantage, will exempt a man during their con- tinuance from the burden of a fourth. But the tutelage or curation of many pupils, as of three or more brothers under one patrimony, is reckoned only as a single tutelage or curation. § 6. The divine brothers (Marcus Aurelius and ^lius Verus ?) have declared by their rescript, and the Emperor Marcus by his separate rescript, that poverty is a sufficient excuse, when it can be proved to be such as must render a man incapable of the burden imposed upon him. JUSTINIAN BOOK I. 399 § 7. Illness, also, if it is so great as to hinder a man from transacting his own business, is a sufficient excuse. § 8. By the rescript of the Emperor Antoninus Pius, illiterate persons are to be excused ; although, in some cases, an illiterate man may not be incapably of the administration. § 9. If a father, through enmity, appoints any particular person by testament to be tutor to his children, the motive of such an appointment will afford a sufficient excuse. But he who by promise hath engaged himself to a testator is not to be excused from the office of tutelage. § 10. The divine brothers have enacted, by their rescript, that the pretence of being unknown to the father of a pupil is not to be admitted solely as a sufficient excuse. § 11. A capital enmity against the father of a pupil or adult will sufficiently excuse any man, either from tutelage or curator- ship, if no reconciliation hath intervened. § 12. Also he, whose condition hath been controverted at the instance of the father of the pupil, is upon that account excused from the tutelage. § 13. Any person who is above seventy years of age may be excused both from tutelage and curation. Also minors, as such, were formerly excusable ; but by our constitution they are now prohibited from aspiring to these trusts, and, of course, all ex- cuses are become unnecessary. It is also enacted by the same constitution that neither pupils nor adults shall be called even to a legitime tutelage. Tor it is absurd that persons who are themselves under governors, and known to want assistance in the administration of their own affairs, should, notwithstanding this, be admitted either as tutors or curators to have the manage- ment of the affairs of others. § 14. And we must also observe that no military person, although willing, can be admitted to become a tutor or curator. § 15. Both at Eome and in the provinces aU grammarians, teachers of rhetoric, and physicians, who exercise their pro- fessions within their own country, and are within the number authorized, are exempted from tutelage and curation. § 16. He who can allege many excuses, and hath failed in his proof of those which he hath already given, is not prohibited 400 OUTLINE OF ROMAN HISTORY. from assigning otfiers within the time prescribed. But tutors and curators, of whatever kind, whether legal, testamentary, or dative (if they are willing to excuse themselves) , ought not to prefer an appeal merely on account of their appointment ; hut they should first exhibit their excuses before the proper magis- trate, and this they ought to do within fifty days after they are certified of their nomination on supposition that they are within a hundred miles from the place where they were nominated. But if they are at the distance of more than a hundred miles they are allowed a day for every twenty miles, and thirty days besides, which taken together ought never, according to-Scsevola, to make a less number of days than fifty. § 17. When a tutor is appointed, he is reputed to have the care of the whole patrimony of his pupil. § 18. He who hath been the tutor of a minor cannot be com- pelled to become his curator : and, by the rescript of the Emperors Severus and Antoninus, although the father of a family should by testament appoint any person to be first the tutor of his children, and afterwards their curator, if the person so appointed is unwilling to take upon him the curation, he is by no means compellable. § 19. The same emperors have likewise by their rescript enacted that a husband may excuse himself from being a curator to his wife, even after he hath begun to act. § 20. If any man should by false allegations have appeared to merit a dismission from the office of tutelage, he is not there- fore freed from the burden of this office. Tit. XXVI. De suspectis tutoribus vel curatoribus The accusation of a suspected tutor or curator is derived from the law of the Twelve Tables. § 1. At Eome the power of removing suspected tutors belongs to the praetor, and in the provinces to the governors, or to the legate of a proconsul. § 2. "We have abeady showed what magistrates may take cognizance of suspected persons: let us now therefore inquire what persons may become suspected. And indeed all tutors JUSTINIAN — BOOK I. 401 may become so, whether they are testamentary, or of any other denomination. For even a legitime tutor may be accused; neither is a patron less subject to an accusation ; but we must remember, that as such his reputation must be spared, although he is removed from his trust as a suspected person. § 3. It now remains as a consequence that we inquire by whom suspected persons may be accused. It must therefore be known, that an accusation of this sort is of a public natiu'e, and open to all. For, by a rescript of the Emperors Severus and Antoninus, even women are admitted to be accusers ; yet such only who are induced to it by their duty or by their relation to the minor: thus a mother, a nurse, or a grandmother may become accusers ; and also a sister. But the praetor can at discretion admit any woman who, acting with a becomiag modesty, but impatient of wrongs offered to pupils, appears to have no other motive than to relieve the injured. § 4. No pupil can bring an accusation of suspicion against his tutor ; but adults, by the rescript of Severus and Antoninus, are permitted, when they act by advice of persons related to them, to accuse their curators. § 5. Any tutor who does not faithfully execute his trust, let his circumstances be ever so sufficient to answer damages, may, according to Julian, be pronounced suspected. And it is also the opinion of the same Julian (which opiuion is adhered to in our constitutions) that a tutor may be removed from his office as suspected even before he has begun to execute it. § 6. When any person is removed upon suspicion, if it is of fraud, he is stigmatized with infamy ; but if of neglect only, he does not become infamous. § 7. If any tutor is accused upon suspicion, his administration, according to Papinian, is suspended whilst the accusation is xmder cognizance. § 8. If a suspected tutor or curator should die pending the accusation, then the cognizance of it is extinguished. § 9. If a tutor fails to appear, with an intent to defer the appointment of an allowance for the maintenance of his pupil, it is provided by the constitution of Severus and Antoninus, that the pupil shall be put into the possession of his tu.tor's w D D 402 OUTLINE OF ROMAN HISTOKY. effects ; and tliat a curator 'being appointed, those things which will be impaired hy delay may be immediately, put to sale : and therefore any tutor who, by absenting himself, impedes the grant of an aUowanee to his pupil, may be removed as suspected. § 10. But if a tutor makes a personal appearance, and falsely avers that the effects of his pupil are insuflScient for an allow- ance, such tutor shall be remitted to the prsefect of the city, and punished by him in the same manner as he who hath acquired a tutelage by bribery. § 11. Also a freedman, who is proved to have fraudulently administered the tutelage of the son or grandson of . his patron, must be remitted to the prsefect to be condignly punished. § 12. It is lastly to be observed, that they who unfaithfully administer their trust, must be immediately removed from it, although they tender a sufficient caution. For the act of giving Caution alters not the malevolent purpose of the tutor, but pro- cures biTTi a longer time for the continuance of his depredations.. We also deem every man suspected whose immorahties give cause for it : but a tutor or curator who, although poor, is yet faithful and diligent, can by no means be removed as a suspected person merely on account of poverty. ( 403 ) BOOK II. Tit. I. De rerum divisione, et acquirendo earum doniinio. We have already treated of persons in the foregoing book; let us now, therefore, inquire concerning things, which may be divided into those which can and those which cannot come within our patrimony and be acquired ; for some things are in common among mankind in general, some are public, some universal, and some are such to which no man can have a right. But most things are tha private property of individuals, by vrfiom they are variously acquired, as will appear hereafter. § 1. Those things which are given to mankind in common by the law of nature are the air, running water, the sea, and conse- quently the shores of the sea ; no man, therefore, is prohibited from approaching any part of the sea-shore whilst he abstains from committing acts of violence in destroying farms, monu- ments, edifices, &c., which are not in common as the sea is. ' § 2. All rivers and ports are public ; and, therefore, the right of fishing in a port or in rivers is in common. § 3, All that tract of land over which the greatest winter flood extends itself is the sea-shore. § 4. By the law of nations the use of the banks of rivers is also public, as the rivers themselves are; and therefore all persons have the same liberty to bring their vessels to the land to unload them, and to fasten ropes to trees upon the banks of a river, as they have to navigate upon the river itself ; but, not- withstanding this, the banks of a river are the property of those who possess the land adjoining to such banks ; and there- dd2 404 OUTLINE OF ROMAN HISTORY. fore tlie trees wliich grow upon them are also tlie property of the same persons. § 5. The use of the sea-shore is also public and common by the law of nations, as is the use of the sea; and therefore any person is permitted to erect a cottage upon it for his habitation, in which he may dry his nets and preserve them from the water; for the shores are not understood to be a property in any man, but are compared to the sea itself, and to the sand or ground which is under the sea. § 6. Theatres, ground appropriated for a race or pubHo exercises, and things of the like nature which belong to a whole city, are universal, and not the property of any particular person. § 7. Things sacred, religious, and holy, cannot be , vested in any person as his own ; for that which is of divine right is nullius in bonis, and can be no man's property. § 8. Those things which have been consecrated by the pontiffs in due form are esteemed sacred ; such are churches, chapels, and also all moveable things, if they have' been properly dedicated to the service of God ; and we have forbidden by our constitution that these things should be either aliened or obligated, unless for the redemption of captives. But if a man should consecrate a building merely by his own authority, it would not be rendered sacred by such a consecration ; but the very ground upon which a sacred edifice hath once been erected wiU, according to Papinian, continue to be sacred, although the edifice is destroyed. § 9. Any man may, at his vdU, render any place which be- longs solely to himself religious, by making it the repository of a dead body ; yet when two are joint possessors of a place or spot of ground not before used for such a purpose, it is not in the power of the one without the consent of the other to cause it to become religious. But when there is a sepulchre in com- mon among many it is in the power of any one joint possessor to rnake use of it, although the rest should dissent. And when there is a proprietor, and an usufructuary, of the same place, the proprietor, without the consent of the usufructuary, cannot render it religious. But it is lawful to lay the body of a dead JUSTINIAN— BOOK IT. 405 person in a place beloi^gmg to any man who has given his con- sent to it ; and although he shoidd dissent after the burial, yet the place becomes religious. § 10. Holy things also, as the walls and gates of a city, are in some degree of divine right, and therefore the property of no man. The walls of a city are esteemed sancti, or holy, inas- much as any offence against them is always punished capitally ; and therefore all those parts of the laws by which punishments are inflicted upon transgressors we generally term sanctions. § 11. There are various means by which things become the property of private persons. Of some things we obtain dominion and property by the law of nature — ^which, as we have already observed, is also called the law of nations ; and we acquire a property in other things by the civil law. But it will be most convenient to begin from the more ancient law : and that the law which nature established at the birth of mankind is the most ancient appears evident ; for civil laws could then only commence to exist when cities began to be built, magistracies to be created, and laws to be written. § 12. Wild beasts, birds, fish, and aU the animals which are bred either in the sea, the air, or upon the earth, do, as "soon as they are taken, become instantly, by the law of nations, the property of the captor ; for it is agreeable to natural reason that those things which have no owner should become the property of the first occupant ; and it is not material whether they then are taken by a man upon his own ground or upon the ground of another ; but yet it is certain, that whoever hath entered into the ground of another for the sake of hunting or fowling might have been prohibited from entering by the proprietor of the ground if he had foreseen the intent. But though wild beasts or fowl, when taken, are esteemed the property of the captor whilst they continue iii his custody, yet when they have once escaped and recovered their natural liberty the right of the captor ceases, and they become the property of the first who seizes them. And they are understood to have recovered their natural liberty if they have run or flown out of sight ; and even if they are not out of sight, when it so happens that they cannot without difficulty be pursued and retaken. 406 OUTLINE OF ROMAN HISTORY. § 13. It hath been a question, whether a wild beast is under- stood to belong to him by whom it hath been so wounded that it may easily be taken. And, in the opinion of some, it belongs to such person as long as he pursues it ; but if "he quits the pursuit, they say it ceases to be his, and again becomes the right of the first occupant. But others have thought that pro- perty in a wild beast cannot otherwise be obtained than by actually taking it. And we confirm this latter opinion, because many accidents frequently happen which prevent the capture. § 14. Bees also are wild by nature ; and therefore, although they swarm upon a tree which is yours, they are not reputed until they are hived by you to be more your property than the birds which have nests there : and therefore, if any other person shall inclose them in an hive, he thus becomes their proprietor. Their honeycombs also become the property of him who takes them ; but if you observe any person entering into your ground with that intent, you may justly hinder him. A swarm which hath flown from your hive is still reputed to continue yours as long as it remains in sight, and may easily be pursued ; but in any other case it wUl become the property of the occupant. § 15. teacocks and pigeons are also naturally wild ; nor is it any objection to say, that after every flight it is their custom to return : for bees do the same thing ; and that bees are naturally wild is evident. Some have been known to have trained deer to be so tame, that they would go into and return from the woods at regular periods ; and yet no man denies but that deer are wild by nature. But with respect to these animals which go and return customarily, the rule to be observed is, that they are understood "to be yours as long as they appear to retain an incli- nation to return ; but if this inclination ceases, that they cease to be yours, and will again become the property of him who takes them. And these animals seem then to cease to have an inclination to return, when they disuse the custom of returning. § 16. But geese and fowls are not wild by nature ; and this we are induced to observe, because there is a species of fowls and a species of geese which in contradistinction we term wild : and therefore if the geese or fowls of Titius, being disturbed and frightened, should take flight, they are nevertheless reckoned to JtTSTINTAN — BOOK II. 407 belong to hifn, in ■whatever place they are found, although he shall have lost sight of them : and whoever detains such animals ■mth a" lucrative view, is understood to commit a theft. § 17, AH those things which we take from our enemies in war hecome instantly our own by the law of nations : so that freemen may be brought into a state of servitude by capture ; but if they afterwards escape, and shall have returned to their own people, they then obtain again their former state. § 18. Precious stones, pearls, and other things which are found upon the sea-shore, become instantly by the law of nations the property of the finder. § 19. The product of those animals of which we are the owners and masters is by the same law esteemed to be our own. § 20. And further, that ground which a river hath added to your estate by alluvion [i.e. by an imperceptible increase] is properly acquired by you according to the law of nations. And that is said to be added by alluvion which is added in a manner which renders it impossible to judge how much ground is added in the space of each moment of time. § 21. But if the impetuosity of a river should sever any part of your estate, and adjoin it to that of your neighbour, it is certain that such part would still continue yours ; but if it should remain for a long time joined to the estate of your neighbour, and the trees which accompanied it shall have taken root in his ground, such trees seem, from the time of their taking root, to be gained and acquired to his estate. § 22. When an island rises in the sea— an event which rarely happens — the property of it is in the occupant, for the property before occupation is in no man. But if an island rises in a river — which frequently happens — and is placed exactly in the middle of it, such island shall be in common to them who possess the lands near the banks on each side of the river, according to the proportion of the extent and latitude of each man's estate adjoining to the banks. But if the island is nearer to one side than the other, it belongs to them only who possess lands next to the banks on that side to which the island is nearest. But if a river divides itself, and afterwards unites again, having reduced a tract of land into the form of an island, the land still 408 OUTLINE OF EOMAN HISTOBY. continues to be the property of him to whom it before apper- tained. § 23. If a river, entirely forsaking its natural channel, hath began to flow elsewhere, the first channel appertains to those who possess the lands close to the banks of it, in proportion to the breadth of each man's estate, next to such banks; and the new channel partakes of the nature of the river, and becomes public. And if after some time the river shall return to its former channel, the new channel commences to be the property of those who possess the lands contiguous to the banks of it. § 24. But it is otherwise in respect to lands which are over- flowed only ; for an inundation alters not the face and nature of the earth ; and therefore, when the waters have receded, it is apparent that the property will be found still to remain in him in whom it was vested before the inundation. § 25. When a man hath made any species or kind of work with materials belonging to another, it is often demanded, which of them ought, in natural reason, to be deemed the master of it; whether he who made the species, or he who was the undoubted owner of the materials ? as, for instance, if any person should make wine, oil, or flour, from the grapes, olives, or corn of another — should cast a vessel out of gold, silver, or brass belonging to another man — should make a liquor called mulse with the wine and honey of another — should compose a plaster or collyrium with another man's medicines — should make a garment with another's wool — or should fabricate with the timber of another a bench, a ship, or a chest ? And, after much controversy concerning this question between the Sabinians and Proculians, the opinion of those who kept a mean between the two parties proved most satisfactory to us, and their opinion was this, that if the species can be reduced to its former rude materials, then the owner of such materials is also to be reckoned the owner of the new species ; but if the species cannot be so reduced, then he who made it is understood to be the owner of it : for example, a vessel can easily be reduced" to the rude mass of brass, silver, or gold, of which it was made ; but wine, oil, or flour cannot be converted into grapes, olives, or corn ; neither can mulse be resolved and separated into wine and JUSTINIAN — BOOK II. 409 honey. But if any man makes any species partly with his own materials and partly with the materials of another; as, for instance, if he should make mulse with his own wine and another's honey ; or a plaster or eyewater partly with his own and partly with another man's medicines ; or should make a garment with an intermixture of his own wool with the wool of another ; it is not to be doubted in all such cases but that he who made the species is master of it, since he not only gave his labour, but furnished also a part of the materials. § 26. If any man shall have interwoven the purple of another into his own vestment, then the purple, although it may be more valuable, doth yield and appertain to the vestment by ac- cession ; and he who was the owner of the purple may have an action of theft, and a personal action, called a condiction, against the purloiner ; nor is it of any consequence whether the vestment was made by him who committed the theft, or by another ; for although things which become, as it were, extinct by the change of their form cannot be recovered identically, yet a condiction may be brought for the recovery of the value of them either against the thief or against any other possessor. § 27. If the materials of two persons are incorporated to- gether, then the whole mass or composition is common to both the proprietors ; for instance, if two owners shall have inter- mixed their wines, or shall have melted together their gold or their silver. The same rule is also observed if diverse sub- stances are so incorporated as to become one species, as when mulse is made with wine and honey ; or when an electrum is composed by an intermixture of gold and silver in different pro- portions ; for in these cases it is not doubted but that the species becomes common. Neither is any other rule observed when either homogeneous or even different substances are confounded and incorporated together fortuitously, without the consent of their proprietors. § 28. If the corn of Titius hath been mixed with the corn of another by consent, then the whole is in common, because the single bodies or grains, which were the private property of each, are by mutual consent made common. But if the intermixture was accidental, or if Titius made it without consent, it then 410 OUTLINE OF ROMAN HISTORY. seems that the corn is not in common, because the single grains still remained unimited, and in their proper substance ; for com in such a case is no more understood to be in common than a flock would be if the sheep of Titius should accidentally inter- mix with the sheep of another. But if the whole quantity of com shoidd be retained by either pf the parties, then an action in rem lies for the quantity of each man's com ; and it is the business and duty of the judge to make an exact estimate of the quality or value of the corn belonging to each party. § 29. When any man hath raised a building upon his own ground he is understood to be the proprietor of such building, ■ although the materials used in it were the property of another, for every building is an accession to the ground upon which it stands. But notwithstanding this, he who was the owner of the materials does not cease to be the owner ; yet he cannot demand his materials, or bring an action for the exhibition of them ; for it is provided, by a law of the Twelve Tables, that a person whose house is built with the materials of another cannot be compelled to restore those materials ; but by an action entitled de tigno jwicto he may be obliged to pay double the value ; and here note that all the materials for building are comprehended under the general term tignum. The above-cited provision, in the law of the Twelve Tables, was made to prevent the demoli- tion of buildings. But if it happens that by any cause a building should be dissevered, or pulled down, then the owner of the materials, if he hath not abeady obtained double the value of them, is not prohibited to claim his identical materials, and to bring his action ad exhihendum. § 30. On the contrary, if a man shall have built an edifice- with his own materials upon the ground of another, such edi- fice becomes the property of him to whom the ground apper^ tains; for in this ease the owner of the materials loses his- property, because he is understood to have made a voluntary alienation of it : and this is the law if he was not ignorant that he was building upon another's land: and therefore, if the- edifice should fall, or be pulled down, such person can even then have no claim to the materials. But it is apparent, if the pro- prietor of the ground, of which the builder was confirmed in JUSTINIAN — BOOK II. 411 possession, should plead that the edifice is his, and refuse to pay the price of the materials and the wages of the workmen, that then such proprietor may be repelled hy an exception of fraud ; and this may assuredly be done if the builder was the possessor of the ground hotiAfide. But it may be justly objected to any man, who understood that the land appertained to another, that he had built rashly upon that ground, which he knew to be the property of another. § 31. If Titius sets another man's plant in his own ground, the plant will become the property of Titius ; and, on the contrary, if Titius shall have set his own plant in Msevius's ground, the plant will appertain to Msevius ; on supposition in either case that it hath already taken root, for until then the property of the plant remains still in him by whom it was planted. But from the instant in which a plant hath taken root the property of it is changed : so that, if the tree of a neighbour borders so closely upon the ground of Titius as to take root in it, and be wholly nourished there, we may affirm that such tree is be- come the property of Titius ; for reason doth not permit that a tree should be deemed the property of any other than of him in whose ground it hath east its roots ; and therefore, if a tree planted near the bounds of the lands of one person shall also extend its roots into the lands of another, such tree will become common to both the land proprietors. § 32. As all plants are esteemed to appertain to the soil in which they have rooted, so every kind of grain is also understood to foUow the property of that ground in which it is sowed. But as he who hath built upon the ground of another may — accord- ing to what we have already said — be defended by an exception of fraud, if the proprietor of the ground should demand the edifice ; so he who at his own expense and hon& fide hath sowed in another man's land may also be benefited by the help of this exception. § 33. As whatever is buUt upon, or sowed in the ground, belongs to that ground by accession, so letters also, although written with gold, appertain to the paper or parchment upon which they are written. And therefore, if Titius shall have ■written a poem, a history, or an oration, upon the paper or 412 OUTLINE OF ROMAN HISTOKY. parcliment of Seius, then Titius will not he deemed the master of his own work, hut the whole will be reputed to be Seius's property. But if Seius demands his books or parchments from Titius, and at the same time refuses to defray the expense of the writing, then Titius can defend himself by an exception of fraud ; and this he may certainly do if he was in possession of such papers and parchments bond Jide— thai is, honestly, and believing them to be his own. § 34. If any man shall have painted upon the tablet of another, some think that the tablet should yield and accede to the pic- ture ; but it is the opinion of pthers that the picture-^whatever the quality of it may be — should accede to the tablet. But it appears to us to be the better opinion that the tablet should accede to the pictm-e ; for it seems ridiculous that the painting of an ApeUes or a Parrhasius should yield as an accession to a worthless tablet. But if he who hath painted upon a tablet demands it from the owner and possessor, and offers not the price of it, then such demandant may be defeated by an excep- tion of fraud; but if the painter is in possession of the picture, the owner of the tablet is entitled to an action called utilis, i. e., beneficial ; in which case, if the owner of the tablet demands it, and does not tender the value of the picture, he may also be repelled by an exception of fraud, if he who painted upon the tablet was the possessor of it upon good faith. But if he who hath painted upon it, or any other, shall have taken away a tablet feloniously, it is evident that the owner of it may prosecute such persons by an action of theft. § 35. If any man shall have purchased lands from another, believing the seller to have been the true owner, when in fact he was not, or shall have obtained an estate bond fide, either by donation, or any other just means, it is agreeable to natural reason that the fruits which he shall have gathered shall be reckoned to have become his own, on account of his care in the culture and tillage ; and therefore, if the true owner shall after- wards appear and claim his lands, he can have no action against" the bond fide possessor for those fruits and that product which have been consumed. But this exemption from such an action is not granted to him who knowingly keeps possession of an- JUSTINIAN— BOOK 11. 413 other's estate ; and therefore, whenever there is a mah fides, the possessor is compellable to restore all the mesne profits together with the lands. § 36. He to whom the usufruct of lands belongs can gain no property in the fruits of such lands until he hath actually gathered them ; and therefore, if the usufructuary should die whilst the fruits, although ripe, are yet ungathered, they could not be claimed by his heirs, but would be acquired by the proprietor of the lands ; and the same may be said in general in relation to farmers. § 37. In estimating the product of animals, we not only reckon milk, skins, and wool, but also their young ; and there- fore lambs, kids, calves, colts, and pigs appertain by natural right to the usufructuary ; but the offspring of a female slave is not to be included within this product, and can belong to him only in whom the property of such female slave is vested ; for it seemed absurd to think that man, for whom nature hath framed all things, should be enumerated among the productions of the brute creation. § 38. He .who has the usufruct of a flock ought, according to the opinion of Julian, to preserve the original number of his sheep entire, by supplying the place of those which die out of the produce of the flock ; and the duty of a usufructuary is the same in regard to other things, for he ought to supply the place of dead vines, or trees, by substituting others in their stead, and to act in every respect like a good husbandman. § 39. It hath been allowed by the Emperor Adrian, in pur- suance of natural equity, that any treasure which a man finds in his own lands shall become the property of the finder ; and that whatever is casually found in a sacred or religious place shall also become the property of him who finds it. But if a person, riot making it his business to search, should fortuitously find a treasure in the ground of another, the emperor hath granted the half of such treasure to the proprietor of the soil, and half to the finder. He hath in like manner ordained, that if anything is found within the imperial demesnes, half shall appertain to the finder and half to the emperor ; and, similar to this, if a man finds any valuable thing in a place or district 414 OUTLINE OF ROMAN HISTORY. belonging to the' treasury, the public, or the city, the same emperor hath decreed that haK shall appertain to the finder, and half to the treasury, the public, or the city to which the place or district belongs. § 40. Things are also acquired, according to the law of nature, by tradition or livery; for nothing is more conformable to natural equity than to confirm the will of him who is desirous to transfer his property into the hands of another : and therefore corporal things, of whatever kind they are, may be delivered ; and when delivered by the true owner, are absolutely aliened. Stipendiary and tributary possessions — and those which are situated in the provinces are so called — ^may also be aliened in the same manner ; for between these and the Italian estates we have now taken away all distinction by our imperial ordinance : so that on account of a donation, a marriage portion, or any other just cause, stipendiary and tributary possessions may undoubtedly be transferred by livery. § 41. Things, although sold and dehvered, are yet not ac- quired by the buyer until he hath either paid the seller for them, or satisfied him in some other manner, as by a bondsman or pledge. And although this is so ordained by a law of the Twelve Tables, yet the same rule of justice is rightly said to arise from the law of nations, that is, from the law of nature. But if the seller shall have given credit to the buyer, we must affirm that the things wUl then become instantly the property of the latter. § 42. It makes no difference whether the owner of a particular thing delivered it himself, or whether another, to whom the care and possession of it was entrusted, shall have delivered it with the owner's consent. And for this reason, if the free and uni- versal administration of all business is committed by a proprietor to any certain person, and the committee, by virtue of his com- mission, shall sell and deKver any goods, then will such goods become the property of the receiver. § 43. In some cases, even without delivery, the mere consent of the proprietor is sufficient to transfer property ; as when it happens that a person hath lent anything to you, hath let it, or deposited it in your possession, and hath afterwards sold it to JUSTINIAN — BOOK II, 415 you, made a donation of it, or. giyen it to you as a marriage portion ; for although he shall not have delivered it for any of these last-mentioned purposes, yet as soon as it is by consent reputed to be yours, you have iastantly acquired the property of it ; and that as fully as if it had actually been delivered to you as a thing sold, a donation, or a marriage portion. § 44. Also if a person hath sold any species of merchandise deposited in a storehouse, such person is understood to have transferred the property of his merchandise as soon as he hath delivered the keys of the storehouse to the buyer. § 45. It also sometimes happens that the property of a thing is transferred by the master of it to an uncertain person : thus, for instance, when the prsetors and consuls cast their missilia or liberalities, among the people, they know not what any particular man vrill receive ; and yet, because it is their will and desire that what every man then receives shall be his own, it therefore instantly becomes his property. § 46. By a parity of reason it appears true, that a thing which hath been made a derelict by the owner will become the property of the first occupant. And whatever hath either been thrown away or abandoned by the owner, to the intent that it might never more be reckoned among his possessions, is properly accounted a derelict, and therefore ceases to be his property. § 47.. But the law is otherwise in respect to those things which are thrown overboard in a storm for the sake of lightening a ship ; for such things remain the property of the owners, inas- much as it is evident that they were not thrown away through dislike, but that each person in the ship might avoid the dangers of the sea. And upon this account whoever hath, with a lucra- tive intention, taken away such goods, although found even upon the high sea, he is guilty of theft. And with these those goods may be ranked which have dropped from a carriage in motion without the knowledge of the owner. Tit. II. De rebus corporalibtcs et ineorpomlibus. ' Things may also be further divided into corporeal and incor- poreal. Things corporeal are those which may be touched ; as. 416 OUTLINE OF ROMAN HISTORY. for example, land, slaves, vestments, gold, silver, and others innumerable. Things incorporeal are those which are not subject to the touch, but consist in rights and privileges ; as inheritances, usufructs, uses, and all obligations, in what manner soever they are contracted. Nor is it an objection of any consequence to urge, that things corporeal are contained in an inheritance : for fruits gathered from the earth are corporeal ; and that also is generally corporeal which is due to us upon an obligation, as a field, a slave, or money ; but it must be observed that we here mean only the right to an inheritance, the right of using and enjoying any particular thing, and the right of an obligation ; all which rights are undoubtedly incorporeal. And to these may be added the rights, or rather qualities, of rural and city estates, which are also termed services. Tit. III. Be semtutibus rusticorum et ttrbanonim prcediorum. The rights or services of rural estates are these : a path, a road, a highway, and an aqueduct or free passage for water. A path denotes the right of passing and repassing on foot over another man's ground, but not of dri\'ing cattle or a carriage over it. A road implies the liberty of driving either cattle or carriages ; and therefore he who hath a path hath not a road ; but he who hath a road hath inclusively a path, for he may use such road when he doth not drive cattle. A highway is a service which imports the right of passing, driving cattle, &c., and includes in it both a path and a road ; and an aqueduct is a service by which one man may have the right of a free passage or conduit for water through the grotmds of another. § 1. The services of city estates and inheritances are those which appertain and adhere to buildings, and they are therefore called the services of city estates, because we call all edifices city estates, although they are- built upon farms or in villages. It is required by city services that neighbours should bear the burdens of neighbours, and by such services one neighbour may be permitted to place abeam upon the wall of another; — ^may be compelled to receive the droppings and currents from the gutter- pipes of another man's house upon his own house, area, or sewer; JUSTINIAN— BOOK II. 417 or may be exempted from receiving them;— or maybe restrained from raising his house in height, lest he should darken the habi. tation of his neighbour. § 2. Some are with reason of opinion, that among rural services we ought to reckon those by which we obtain the right of drawing water, watering and feeding cattle, making lime, digging sand, &o. in the ground of another. §3. All these services are called the services of estates or inheritances, because they cannot be constituted without an inheritance to support them, for no man can either owe or acquire a rural or city service if he possesses neither house nor lands. § 4. Whenever any one is willing to demise the right of a service to another, he may do it by contract and stipulation. A man may also by testament prohibit his heir from heightening his house, lest he should obstruct the view of his neighbour ; or may oblige his heir to permit the rafter of another man's house to be laid upon his wall, or to receive upon his own house the droppings of another's, or to suffer any person to walk, drive cattle, or draw water in his grounds. Tit. IV. De tisufriictu. An usufruct is the right of using and enjoying, without diminution, the things which are the property of another. But although an usufruct is a right, and therefore incorporeal, yet as it appertains always to a substance, it necessarily follows that if the substance perishes the usufruct must cease. § 1. The usufruct of things is frequently separated from the property ; and this happens by various means : it happens, for instance, when the usufruct is bequeathed by testament, for the heir hath then only the nude property vested in him, whilst the legatee possesses the usufruct ; or, on the contrary, it happens when a testator hath bequeathed his lands without the usufruct, for then the legatary hath only the nude property, whilst the heir enjoys the profits; for the usufruct. may be ' bequeathed to one man, and the lands, without the usufruct, to another. Yet if any man would constitute an usufruct other- N. E E 418 OUTLINE or ROMAN HISTORY, wise than by testament, he must do it by paction and stipulation. But lest the property of lands should be rendered wholly unbeneficial by deducting the usufruct for ever, it was thought convenient that the usufruct should by certain means become extinguished, and revert to the property. § 2. The usufruct not only of lands and houses is grantable, but also the usufruct of slaves, cattle, and other things, except those of which the nature is such that they may be consumed by using, for the usufruct of such things is neither grantable by civil policy nor natural reason; and among these may be reckoned wine, oil, clothes, &c. And money also is almost of the same nature ; for by constant use and the frequent change of owners it in a manner becomes extinguished. But the senate, through a motive of public utility, hath ordained that the usufruct of these things may be constituted if a sufficient caution is given upon this account to the heir ; and therefore if the usufruct of money is bequeathed, the money is so given to the legatary as to make it instantly his ovsm ; but then the legatary, lest he should die or sufPer diminution, is obliged to give security to the heir for the repayment of a like sum. Other things also, which are in their nature liable to consump- tion in using, when the usufruct of them is bequeathed, are so delivered to the legatary as to become whoUy his property ; but in this case, after an exact valuation hath been made, caution must be given to the heir for the payment of a sum equal to such valuation either at the death of the legatary, or if it happens that he should suffer diminution. It is not therefore to be understood that the senate hath created an usufruct of these things, which is impossible; but that the senate hath constituted a quasi-usufruct by means of a caution.. § 3. The usufruct of a thing determines by the death of the usufructuary; and by two of the three diminutions, namely, the greatest and the middle diminution, or change of state ; and also by not being used according to the manner and during the time prescribed : all which things are set forth in our constitution. The usufruct of a thing also determines if the usufructuary hath surrendered it to the lord of the property; but accession of it to a stranger does not work a surrender to the proprietor: or, on JUSTINIAN— BOOK 11. 419 the contrary, an usufruct determines if the usufructuary hath acquired the property of it; and this is called consolidation. And it is certaia, if a house hath heen consumed by fire, or hath fallen by means of an earthquake, or through decay, that then the usufruct of such house is wholly destroyed, and that no usufruct of the area, or ground of it, can afterwards become due to the usufructuary. § 4. When the whole usufruct of a thing is determined it then reverts to the property ; and from that instant of time the owner of the nude property commences to have a full and entire power over the thing. Tit. V. De usu et habitatione. The usufruct and the nude use of a thing are both of them constituted and both determined by the same means. § 1. There is less benefit and emolument in the use of a thing than in the usufruct ; for he who hath but .simply the use of lands is understood to have nothing more than the liberty of using such a quantity of herbs, fruit, flowers, hay, straw, and wood, which may be sufficient to supply his daily exigencies ; and he is permitted only to be commorant upon the land on condition that he neither becomes troublesome to the owner, nor impedes the husbandmen in their country labours. And an usuary, having but a mere use, can neither let, sell, nor give away his right to another, although it is in the power of an usufructuary to convey his usufruct either by lease or donation. § 2. He who hath but the mere use of a house is understood to have a right in it so far only as to enable him to inhabit it himself ; for he hath no power to transfer this right to another, and it is hardly thought allowable that he should receive a guest or a lodger. . But the usuary, notwithstanding what has been said, hath a right to inhabit the house, together with his wife, his children, and his freedmen, and also with such other free persons who are in the quality of servants. And agreeably to this, if the use of a house appertains to a woman, she also hath the liberty of living in it with her husband and her dependents. E n 2 "420 . OUTEINE OF ROMAN HISTORY. § 3. He also who hath simply the use of a slave can benefit himself only by the labour and service of such slave ; for it is by no means in the power of the usuary to transfer his right over to another. And the same law prevails in regard to beasts of burden. § 4. If the use of cattle is left by testament, as, for example, the use of sheep, yet the usuary can neither use the milk, the lambs, nor the wool ; for these of right belong to the usufruct. But the usuary may undoubtedly employ the sheep in soiling and improving his lands. § 5. A habitation, whether given by testament or consti- tuted by any other means, appears to be neither an use nor an usufruct, but seems to be rather a particular right. And for the public utiKty, and in conformity to the opinion of Marcellus, we have permitted by our decision that he who hath a habita- tion may not only live in it but also let it to another. § 6. What we have already delivered concerning real services, usufructs, uses, and habitations, may at this time be sufficient. Concerning inheritances and obligations, we will treat in their proper places. We have already explaiaed summarily by what means things are acquired according to the law of nations ; let us now, therefore, examine by what means they are acquired according to the civil law. Tit. VI. De usucapionibus et longi temporis prcesoHptionibm. It was anciently decreed by the civil law, that he who by means of purchase, donation, or any other just title, had obtained a thing from another whom he thought to be the true owner of it— although in reality he was not — and if it was moveable had possessed it bona fide for the space of one year, either in Italy or the provinces, or, if it was immoveable, had possessed it for the term of two years within the limits of Italy, should prescribe to such thing by use : and this was held to be law, lest the dominion or property of things should be uncertain. But although it was thought by the more ancient legislators that the above-mentioned terms were of sufficient length to enable every owner to search after his different kinds of property, yet JUSTINIAN — BOOK II. 421 a better determination hath suggested itself to our thoughts, lest the true owners should be defrauded, or too hastily excluded, by the circumscription of time and place, from the benefit of recovering their just due : and we have therefore promulged our ordinance, by which it is provided, that things moveable may be prescribed to after the expiration of three years, and that a possession during a long tract of time wiU also found a prescription to things immoveable: and note, that by a long tract of time we mean ten years if the parties are present — i.e. in the province — and twenty years if either of them is absent. By these means the property of things may be acquired, and this not only in Italy, but throughout oux dominions in general, if the possession was justly founded. § 1. But it is certain in some cases, that although there hath been a possession incontestably hon& fide, yet no length of time wUl be sufficient to found a prescription ; and this happens when a man possesses as his property a free person, a thing sacred or religious, or a fugitive slave. § 2. It is also equally certaiu, that no prescription can be founded to things moveable which have been stolen, or to things immoveable seized by violence, although such things have been possessed bona fide during the length of time required by our constitution : for a prescription to things stolen is prohibited by a law of the Twelve Tables, and also by the law Atilia ; and the laws Julia and Plautia forbid a prescription to things seized by violence. And it is not to be inferred from these laws that a thief or disseisor only is prohibited to take by prescription — for such are prohibited for another reason, namely, because they are fraudulent and dishonest possessors — but all other persons are also disabled from prescribing to things stolen or seized forcibly, although they shall have purchased such things bona fide, or otherwise received them upon a just account ; and from hence it follows, that things moveable cannot easily be prescribed to even by honest possessors : for whoever hath either sold or delivered the goods of another knowingly, upon any considera- tion, he is guilty of theft. But this rule sometimes admits of exceptions : for in some cases a thing moveable may be pre- scribed to : thus if an heir, thinking a particular thing to be 422 OUTLINE OF ROMAN HISTORY. hereditary, whicli in reality had only been lent,^ let to, or deposited with the deceased, shall have sold, given it, or other- wise disposed of it to another, who received it bond fide, it is not to be doubted but that the receiver may prescribe : for such- thing can never be reputed stolen, inasmuch as it was honestly possessed from the beginning ; and the heir who hath aliened it, believing it to have been his own property, hath committed no theft. Also if he who hath the usufruct of a female slave either sells or gives away the child of such slave, believing it to be his own property, he does not commit theft ; for theft cannot be constituted without an intention to commit it. It may also happen, by various means, that one man may transfer the pro- perty of another without theft, and give a right of prescription to the possessor. And in regard to' things immoveable the law ordains, that if any man should take possession of an estate without force, by reason either of the absence or negligence of the owner, or because he died without heirs, and — although he hath thus possessed the land dishonestly — shall have made livery of it to another, who took it bona fide, the land by long posses- sion may be acquired by such taker, who cannot be said to have received either a thing stolen, or possessed by violence : for the opinion of those ancient lawyers, who held that lands and things immoveable might be stolen, is now abolished : and it is there- fore provided by the imperial constitutions, in favour of all such who possess an immoveable property, that a long and undoubted possession ought not to be taken away. § 3. A prescription may sometimes be founded even to things which have been stolen or possessed by violence ; as, for instance, when such things shall have fallen again under the power of their true owner : for they are then reputed to be purged from the contamination of theft or violence, and may afterwards be claimed by prescription. § 4. The things which appertain to our treasury cannot be acquired by prescription. But when things escheatable have not been certified to the treasury, it is held by Papinian, that a pur- chaser bona fide may prescribe to any of them after delivery. And not only the Emperor Pius, but the Emperors Severus and Antoninus have also issued their rescripts conformable to this opinion. JUSTINIAN— BOOK 11. 423 § 5. It is lastly to be observed, that if any man shall purchase a particular thing bond fide, or obtaia the possession of it by any other just title, he can by no means prescribe to it unless the thing in itself is free from all manner of exception. § 6. A mistake of the cause of possession shall not give rise to a prescription : as when he who possesses a thing imagines that he hath purchased it, when he hath not purchased it ; or that the thing was a gift, when in reality it was not given. § 7. If a thing immoveable is possessed by any man bona fide, so that the possession is justly commenced, then the heir of that man when deceased, or the possessor of his goods, may continue the possession so as to raise a prescription, although he is con- Boious that what he possesses is the property of another ; but if the possession was commenced from the beginning mala fide, or unjustly, then will the continuance of it avail neither the heir nor the possessor of the goods, although he was ignorant of any malfeasance. And we have enacted by our imperial constitu- tion that the time of usucapion or prescription to things moveable shall be continued in the same manner from the deceased to his successor. § 8. And in regard to the computation of the years necessary to raise a prescription, the Emperors Severus and Antoninus have ordained by their rescript, that, between seller and buyer, the time of the continuance of the possession of the one shall be joined to the time of the continuance of the possession of the other. § 9. It is enacted by an edict of the Emperor Marcus, that when a thing is purchased from the treasury, the purchaser, after an uninterrupted possession of it for the space of five years subsequent to the sale, may repel the true owner by an exception of prescription. But the Emperor Zeno, of sacred memory, hath well provided by his constitution, that all those who by sale, donation, or any other title, have received things, either moveable or immoveable, from the public treasury, may instantly be secured in their possession, and made certain of success, whether they are plaintiffs or defendants ; and that those who think that they are entitled to certain actions, either as pro- prietors or mortgagees of the things aliened, may commence their suits against the treasury at any time within the space of four 424 OUTLINE OF KOMAN HISTORY. years, but not afterwards. And in ovtr own sacred ordinance, which we have lately promulged in favour of those who re- ceive anything, whether moveable or immoveable, from the private possessions either of ourself or of the empress our consort, we have made the same regulations which are contained in the above-mentioned constitijjtion of the Emperor Zeno con- cerning fiscal alienations. Tit. VII. Be donationihus. There is another way by which property is acquired, namely, by donation, of which there are two kinds ; the one, mortis causa, i.e., on account of death; the other, non mortis causa, i.e., not on account of death; and this takes ejffiect during the life of the donor. § 1. A donation on account of death is that which is made under an apprehension or suspicion of death ; as when anything is given upon condition that, if the donor dies, the donee shall possess it absolutely ; or that the thing given shaU be returned if the donor should survive the danger which he apprehends ; or should repent that he hath made the gift ; or if the donee should die before the donor. Donations mortis causa are now reduced as far as possible to the similitude of legacies ; for when it was much doubted by our lawyers, whether a donation msrtis causd ought to be reputed as a gift or as a legacy, inasmuch as ia some things it partakes of the nature of both, we then consti- tuted and ordained that every such donation should be considered as a legacy, and be made in the manner which our constitution directs. But in brief, a donation mortis causd is then said to be made when a man so gives, as to demonstrate that he would rather possess the thing given himself than that the donee should possess it ; and yet at the same time evinces that he is more willing that the donee should possess it than his own heii*. The donation which Telemachus makes to Piraeus in Homer is of this species : — He (when Piraeus ask'd for slaves to bring The gifts and treasm-es of the Spari}an king) Thus thoughtful answer'd : Those we shall not move, Dark and unconscious of the wiU of Jove. We know not yet the full event of all : Stabb'd in his palace, if your prince must fall, JUSTINIAN — BOOK II. 425 Us and our house if treason must o'erthrow, Better a friend possess them than a foe. But on my foes should vengeance Heav'n decree, Riches are ■welcome then, not else to me ; Till then retain the gifts. — Fope'a Oiyss. lib, 17. § 2. Donations made without any thought or apprehension of death we call donations inter vims; and these admit of no comparison with legacies ; for when once they are perfected, they cannot afterwards he revoked without cause ; and donations are then esteemed perfect when the donor hath declared and manifested his wiU either in writing or otherwise. And it is appointed by our constitution, that a donation inter vivos shall, in imitation of a sale, necessarily enforce a delivery ; for when things are given, they become fully and perfectly vested in the donee, and it is incumbent upon the donor to deliver them ; and although it is enacted by the constitutions of our predecessors, that donations amounting to the value of two hundred solidi shall be publicly and formally enrolled and registered, we have yet thought it expedient to enlarge this sum to five hundred solidi by our ordinance, by which we permit all donations of less value to be firm and binding, without insinuation or enrolment ; and there are likewise some donations which, although they exceed five hundred solidi, are yet of full force without insinuation. We have, also, for the enlargement of donations, enacted many other rules, all which may be collected by perusing our constitutions set forth for that purpose. It nevertheless remains to be observed, that when a donation is fully and vaKdly madfe, the donor may revoke it on account of ingratitude in the donee in some particular cases ; and this may be done lest he who hath been liberal and kind to another should in any of the instances enumerated in our constitution suffer either injury or damage from him upon whom a benefit was conferred. § 3. There is also another species of donations inter vivos, which was wholly unknown to the ancient lawyers, being intro- duced by later emperors. This species of donations inter vivos was called ante nuptias — i. e. before marriage — and contained in it the following tacit condition, namely, that it. should then take 426 OUTLINE OF ROMAN HISTOKY. effect wlieii tlie marriage was performed ; and these donations were properly called ante nuptias, because they could never be constituted after the celebration of matrimony. But inasmuch as it was permitted by the ancient law that portions might be augmented after marriage, the Emperor Justia, our father, hath enacted by his constitution that» donations called ante nuptias might also be augmented at any time whilst the matrimony subsisted ; and as it was improper that a donation should be stiU termed ante nuptias when it had received an augmentation post nuptias, i. e. after matrimony, we therefore being desirous that our sanctions might become as perfect as possible, and that names should be properly adapted to things, have ordaiaed and constituted that the above-mentioned donations may be not only augmented, but may also receive their commencement at any time during matrimony ; and that for the future they shall not be called donations ante nuptias, but donations propter nuptias, i. e. on accoimt of marriage : and thus these donations are made equal with portions ; for as portions may be augmented, and even made, when matrimony is subsisting, and persons are actually married, so donations, which are introduced on account of matrimony, may now not only precede marriage, but be augmented, or even constituted, after the celebration of it. § 4. There was formerly another manner of acquiring pro- perty by the civil law, namely, by accretion ; as, for instance, if Primus had possessed a slave in common with Titius, and Primus had enfranchised that slave either by the vindicta or by testament, then would the share of Primus in that slave be lost, and accrue to Titius. But inasmuch as it affords a bad example that a man should be defrauded of his liberty, and that those masters who are most humane should suffer loss, whilst those who are most severe receive emolument, we have thought it neces- sary that a proper remedy should be applied to this grievance, and we have found a method by which the manumitter, his co- partner, and the freed person may all partake of our beneficence; for we have decreed — and it is manifest that the ancient legisla- tors have often transgressed the strict rules of law in favour of liberty— that freedom, although granted by one partner only, shall immediately take effect ; so that the manumitter shall have JUSTINIAN — BOOK II. 427 reason to be pleased •with the validity of his gift if his co-partner is indemnified by receiving his share of the worth of the slave. Tit. VIII. Quibus alienare licet, vel non licet. It sometimes happens that the proprietor of a thiag cannot alien it, and on the contrary that he who is not the proprietor may alien it : for example, by the law Julia a husband is pro- hibited to make an alienation of lands which came to him in right of his wife, unless his wife consents to the alienation ; and yet every man is deemed the proprietor of whatever is given to Tii-m as a marriage portion. But in this respect we have corrected the law Julia, and brought it into a better state : for having observed that this law regards only those immoveable possessions which are situated within the precincts of Italy, and that although it inhibits the husband to make a mortgage of such possessions, even with the consent of his wife, yet it permits him, with the consent of his wife, to make an alienation, we have therefore provided a remedy by our imperial authority, so that now no husband can either alien or mortgage, even with the consent of his wife, any immoveable possession, whether provincial or Italian, obtained with her as a marriage portion ; and we have been induced to make these regulations, lest the frailty of women should occasion the ruin of their fortunes. § 1. But a creditor, by virtue of a compact, may sell or alien a pledge, although it is not his own property ; yet this seems to be allowable for no other reason than because the pledge is understood to be aliened by the consent of the debtor, with whom it was covenanted from the commencement of the contract, that the creditor might be permitted to sell the pledge, if the money borrowed was not paid at the time stipulated. But, lest the creditors should be impeded from prosecuting what is justly due to them, and lest debtors, on the contrary, should lose the property of their possessions. too soon, we have in our ordinance, promulged for this purpose, instituted certain methods, by which the sale of pledges may be warrantably made ; and through the whole tenor of our constitution a sufficient caution hath been taken in regard to both creditors and debtors. § 2. It must now be observed that no pupil, whether male or 428 OUTLINE OF KOMAN HISTOKY. female, hath power to alien anything without the authority of a tutor ; and therefore if a pupil, without the authority, of his tutor, shall lend money to any man, such pupil contracts no obligation ; for he is iucapable of vesting the property of his money in the borrower ; and therefore the money may be claimed by vindication — that is, by a real action — if it exists entire and unspent. But if money lent by a minor is consumed by the borrower bond jide {i.e., believing that the lender was of full age), it may be recovered from such borrower by condiction : that is, by a personal action. And if such money is consumed by the borrower mala fide, an action ad exhibendum will He against him. § 3. But, on the contrary, the property of anything may be transferred to pupils, whether male or female, without the authority of their tutors : yet if a debtor makes a payment to a pupil, it is necessary that the debtor should be warranted by the authority of the pupil's tutor, otherwise he will not be acquitted of the debt ; and this, for a most evident reason, was ordained by a constitution, which we promulged to the advocates of Csesarea, at the suggestion of that most eminent man Tribonian, the quaestor of our sacred palace : and by this constitution it is enacted, that the debtor of a minor may lawfully pay any sum to his curator or tutor, if a judicial decree permitting the payment is previously obtained without expense to the minor ; for when the payment of a debt is warranted by, and subsequent to, the decree of a judge, it is always attended with the fullest security. But although money hath been paid to a pupil otherwise than we have ordained, yet if he should afterwards require that the money should be paid him again, and demand it by action, he might be deprived of his plea by an exception of fraud, if it could be proved that he had become richer by the increase of this money, or even that he had preserved it safely. But if the pupil hath squandered and consumed the money paid to him, or lost it either by theft or violence, an exception of fraud will be of no benefit to the debtor, who will be compelled to make a second payment, because the first was made inconsiderately, without the authority of the tutor, and not according to our ordinance. Pupils are also incapacitated to pay money without the authority of their tutors ; because money, when paid by a pupU. without such authority, doth not become the property of JUSTINIAN— BOOK II. 429 Mm to whom it is paid : for the alienation of no one thing is granted to a pupil -without the authority of his tutor. Tit. IX. Per qtias personas cuique acquiritur. Things may be acquired not only by ourselves, but also by those who are under our power, and also by slaves of whom we have the usufruct only : acquisitions may also be made for us by free- men ; and even by slaves whom we possess bond fide, although they are the property of another. Let us therefore inquire diligently conceming all these persons. § 1. It was anciently the law that whatever estate came to children, whether male or female, who were under the power of their parents, it was acquired for the parents of those children, without any diminution, if we except the pecuUum castrense ; and these estates were so absolutely vested in the parents that what was acquired by one child they might have given to another child, or to a stranger, or might have sold it, or applied it in what manner and to what purpose they thought proper ; but this seemed to be inhuman ; and we have therefore, by a general constitntion, mitigated the rigour of the law in regai'd to children, and have at the same time maintained that honour which is due to parents ; having ordained that if anything accrues to the son by means of the father's fortune, the whole shall be acquired for the father, according to ancient practice ; — for can it be unjust that the wealth which the son hath obtained by means of the father should revert to him ? — ^but that the dominion and property of whatever the son of a family hath acquired by any other means shall remain in the son, and that the father shall be entitled only to the usufruct of such acqui- sition. And this we have thought proper to decree, lest that which hath accrued to a man from his labour or good fortune should be unjustly transferred to another. § 2. We have also regarded the interest of children in respect to emancipation ; for a parent, when he emancipated his chil- dren, might, according to former constitutions, have taken to himself, if he was so inclined, the property of the third part of those things which were excepted from paternal acquisition, retaining it as the price of emancipation. But it appeared to be inhuman that the son should be thus defrauded of the third 430 OUTLINE OF EOMAN HISTOKY, part of his property, and that ihe honour which he had obtained by becoming independent should be decreased by the diminution of his estate ; and we have therefore decreed that the parent, instead of the third part of the property which he formerly might have retained, shall now be entitled to a half-share, not of the property, but of the usufruct ; so that the property will for the future remain entire in the son, and the father will enjoy a greater share, namely half instead of a third part. § 3. Whatever our slaves have at any time acquired, whether by delivery, stipulation, donation, bequest, or any other means, the same is reputed to be acquired by ourselves ; and we thus acquire things, although we are ignorant of, or even averse to, the acquisition, for he who is a slave can have no property. And if a slave is instituted an heir, he cannot otherwise take upon himself the inheritance than at the command of his master; but if the slave is commanded to do this, the inheritance is as fully acquired by the master as if he had been himself made the heir; and, consequently, a legacy left to a slave is acquired by his master. It is further to be observed, that masters acquire by their slaves not only the property of things, but also the posses- sion ; for whatever is possessed by a slave, the same is deemed to be possessed by his master, who may therefore found a pre- scription to it by means of his slave. § 4. In regard to those slaves of whom the possessor has the usufruct only, it is an established rule, that whatever they acquire by means of his goods, or by their own work and labour, it appertains to their usufructuary master ; but whatever is obtained by a slave otherwise than by those means, it belongs to him who hath the property of the slave ; and therefore, if a slave is instituted an heir, or hath received a legacy, or a gift, the inheritance, legacy, or gift, wiE. not be acquired for the usufruc- tuary master, but for the proprietor. § 5. The same rule is observed in regard to him who is pos- sessed as a slave bona fide, whether he is a freeman, or the slave of another: for the law concerning an usufructuary master prevails equally in relation to a bona fide possessor; and there- fore whatever is acquired otherwise than by the two causes above mentioned, it either belongs to the person possessed, if he is free,: or to the proprietor, if the person possessed is the slave of another. : JUSTINIAN— BOOK II. 431 But a bond fide possessor, who hath gained a slave by usucapion or prescription, inasmuch as he thus becomes the absolute pro- prietor, can acquire by virtue of such slave by all manner of ■ways. But an usufructuary master cannot prescribe ; first, because he can never be strictly said to possess, having only the power of using ; and further, because he knows that the slave belongs to another. We nevertheless may acquire not only property, but also possession, by means of the slaves whom we possess honcL fi,de, or of whom we have only the usufruct ; and even by means of a free person, of whom we have a bona fide possession. But in saying this we adhere to the distinction which we have before explained, and speak of those things only of which a slave may acquire the possession either by means of the goods of his master, or by his own industry. § 6. It is apparent from what has been said that we can by no means make acquisitions by free persons who are not under our subjection, nor possessed by us bona fide: neither can we acquire property by another's slave, of whom we have neither the usu- fruct nor the just possession. And this is meant when it is said that nothing can be acquired by means of a stranger ; which we must understand with an exception ; for it hath been determined, according to the constitution of the Emperor Severus, that pos- session may be acquired for us by a free person, as, for instance, by a proctor, not only with, but even without, our knowledge ; and by this possession the property may be gained, if the delivery was made by the proprietor ; and an usucapion or prescription may be acquired, although the delivery was made by one who was not the proprietor. § 7. The observations which we have already made concerning the acquisition of particular things may suffice for the present ; for we shall treat more opportunely hereafter in another place of the rights of legacies and trusts. We will now proceed to show how things may be acquired per unwersitatem, that is, wholly and in gross by one single acquisition : for example, if Titius is nominated an heir, or seeks the possession of the goods of another, or arrogates any one as his son, or if goods are adjudged to him for the sake of preserving the liberty of slaves ; in aU these cases the entire inheritance passes to Titius. Let us now therefore inquire into inheritances which are of a 432 OUTLINE OF ROMAN HISTORY. twofold nature ; for they proceed either from a testacy or an intestacy. We \vill first treat of those which come to us by testament ; and in doing this it will be necessary to begin by explaining the manner of making testaments. Tit. X. Be testamentis ordinaiidis. A testament is so called from the Latin word testatio, because it bears witness or testimony to the determination of the mind. § 1. But, lest the ancient usage should be forgotten, it is necessary to observe that two kinds of testaments were formerly in use ; the one was practised in times of peace, and named calatis eomiiiis, because it was made in the full assembly of the people ; and the other was used when the people were going forth to battle, and was styled proeinctum testamentum. But a third species was afterwards added, which was called per ws et lihram, because it was effected by emancipation, which was an alienation made by an imaginary sale in the presence of five witnesses, and the libripens, or balance-holder, all citizens of Rome above the age of fourteen ; and also in the presence of him who was called the emptor familicB, or purchaser. The two former kinds of testaments have been disused for many ages ; and that which was made ^;er ces et libram, although it continued longer in practice, hath now ceased in part to be observed. § 2. The three kinds of testaments before mentioned aU took their rise from the civil law; but afterwards another species was introduced by the edict of the prsetor ; for by the honorary or prsetorian edict the signature of seven witnesses was decreed sufficient to establish a will without any emancipation or imaginary sale; but this signature of witnesses was not req^uired by the civil law. § 3. When the civil and praetorian laws began to be blended together, partly by usage and partly by the emendation made by the imperial constitutions, it became an established rule that all testaments should be made at one and the same time, accord- ing to the civil law ; that they should be sealed by seven witnesses, according to the prsetorian law ; and that they should also be subscribed by the witnesses, in obedience to the constitutions. Thus the law concerning testaments seems to be tripartite, for the civil law enforces the necessity of having witnesses to make JUSTINIAN — BOOK II. 433 a testament valid, who must all be present at one and the same time, -without interval; the sacred constitutions ordain that every testament must be subscribed by the testator and the ■witnesses; and the prsetorian edict requires sealing, and fixes the number of witnesses. § 4. To all these solemnities we have made an addition for the better security of testaments and the prevention of frauds, having enacted by our constitution that the name of the heir shall be expressed by the handwriting either of the testator or of the witnesses, and that everything shall be done ia conformity to the tenor of our ordinance. § 5. Every witness to a testament, according to Papinian, may use the same signet ; for otherwise what must be the con- sequence if seven seals should happen all to bear the same de- vices ? It is also allowable to seal with the signet of another. § 6. Those persons are allowed to be good witnesses who are themselves legally capable of taking by testament ; but yet no woman, slave, or interdicted prodigal, no person under puberty, mad, mute, or deaf, nor any one whom the laws have repro- bated and rendered intestable, can be admitted a witness to a testament. §-7. If a witness, at the time of attesting, was reputed to have been a free person, but afterwards appeared to have been a slave at that time, the Emperor Adrian declared in his rescript to Cato, and afterwards the Emperors Severus and Antoninus by their rescript decreed in a similar case, that they would aid such a defect in a testament, and cause it to be accounted equally firm, as if it had been made as it ought, if the witness at the time of sealing was, in the estimation of all men, taken to be a free person, no one having made a question of his condition. § 8. A father and a son under his power, or two brothers under the power of the same father, may be made witnesses to a testament ; for nothing hinders but that several persons may be admitted witnesses out of the same family to a business in which that family is not interested. § 9. No person can be a witness to a testament who is under -the power of the testator. And if the son of a family gives away his military estate by testament after his dismission from N. F F 434: OUTLINE OF ROMAN HISTORY. the army, neither his father, nor any one under the power of Ms father, can be admitted a witness to it. For in this case the law does not allow of a domestic testimony. § 10. No heir can he admitted a witness to that testament hy which he is appointed heir ; neither can the testimony of any one be admitted who is in subjection to such heir; nor the testimony of his father, to whom he is himself imder subjection; nor the testimony of his brothers, if they are under the power of the same father ; for this whole business, which is performed for the sake of completing a testament, is now always transacted between the testator and the real or very heir. But formerly there was great confusion ; for although the ancients would never admit the testimony of the emptor familim, or the supposed heir, nor of any one allied to him by subjection, yet they ad- mitted that of the real heir, and of those who were connected with him by subjection ; and the only precaution taken was to exhort and persuade those persons not to abuse their privUegl. But we have corrected this practice, preventing by the coercion of law that which the ancient lawyers endeavoured to prevent by persuasion only ; for we permit neither the real heir, who represents the emptor familice of the ancients, nor any person allied to such real heir, to be a witness to the testament by which he was nominated. And it is for this reason that we have not suffered the old constitutions to be inserted in our code. . § 11. But we refuse not the testimony of legataries and trustees, and of those who are allied to them, because such persons are not universal heirs or successors ; and, by virtue of our constitution, we have even specially granted to all legataries and trustees the liberty of bearing testimony ; and therefore we grant this permission much more readily to those who are in subjection to them, and to those to whom they are subject. § 12. It is immaterial whether a testament is written upon a table of wax, upon paper, parchment, or any other substance. § 13. Any person may commit the same testament to diverse tablets, each of which wiU be an original, if the requisite forms are observed. And this sometimes is necessary; as wheH a man who is going a sea Toyage is desirous to cany his will JUSTINIAN — BOOK II. 435 ■with him, and at the same time to leave a coimterpart of it at home for his hetter seourity. Innumerable other reasons for dqing this may arise, according to the various necessities of mankind. § 14. What we have already said concerning written testa- ments is sufficient. But if any man is willing to dispose of his effects by a nuncupative testament, i.e., by a testament without writing, let him be assured, if in the presence of seven witnesses, he declares his will by word of mouth, that such verbal declara- tion will be a complete and valid testament according to the civil law. Tit. XI. De militari testamento. The before-mentioned strict observation of formalities, in the construction and formation of testaments, is dispensed with by the imperial constitutions in regard to all military persons, on account of their unskilfulness in these matters. For although they neither call the legal number of witnesses, nor observe any other solemnity, yet they may make a good testament if they are actually upon service against an enemy. This was intro- duced by our own ordinance with good reason ; and thus in whatever manner the testament of a military person is conceived, whether in writing or not in writing, it prevails according to his intention : but when soldiers are not upon an expedition, and live in their own houses or elsewhere, they are by no means entitled to claim this privilege ; but a soldier who is upon actual service against an enemy may make a testament, although he is the son of a family, and consequently under power ; but, ac- cording to the common and general law, he must observe all the formaHties which are recLuired of others who are not soldiers when they make their testaments. § 1. The Emperor Trajan wrote as follows in his rescript to Catilius Severus concerning military testaments :— " The privilege which is given to military persons that their testaments, in whatever manner made, shall be valid, must be understood with this proviso, that it ought first to be apparent that a testament was made in some manner : and here observe, that a testament may be made without writing, even by a person who is not in vp2 436 OUTLINE OF ROMAN HISTOKY. the army. And therefore if it appears that the soldier,^ con- cerning whose goods question is now made before you, did, in the presence of witnesses purposely called, declare what person should he his heir, and upon what slave or slaves he would confer the benefit of liberty, he shall be reputed to have made his testament without writing, and his will shall be ratified. But if it is only proved that he said to some one, as it often happens in discourse, ' I appoint you my heir,' or * I leave you all my estate,' such words do not amount to a testament. Nor are any persons more interested than the soldiery, that words so spoken should not amount to a will ; for if this was once allowed, witnesses might without difficialty be produced after the death of any militajy man, who would affirm that they had heard him bequeath his estate to whomever they please ; and thus the true intentions of many would be defeated." § 2. A soldier, though mute and deaf, may yet make a testa- ment. § 3. The privilege of making testaments without the usual formalities was granted by the imperial constitutions to military men, to be enjoyed only during the time of actual service, and whilst they lived in their tents. For if veterans after dismission, or even soldiers, if not upon service against the enemy, would make their testaments, they must not omit the forms required to be observed in common by all the citizens of Rome. And if a testament is made by a soldier, even in his tent upon an expedi- tion, yet if the solemnities of the law are not adhered to, such testament will oontiaue valid only for one year after his dismis- sion from the army. Suppose, therefore, that a soldier should die testate within a year after his dismission, and the event of the condition upon which his heir is instituted should not happen till after the expiration of the year, would the testament of such soldier be valid ? We answer, that it would prevail as a mihtaiy testament. § 4. If a man, before his entrance into the army, should make his testament, without observing the requisite formalities, and afterwards, when he became a soldier, and was upon an expedi- tion, should open his testament for the sake of adding to it, or of subtracting something from it ; or if he should cause it to Jt'STlNIAN — BOOK 11. 437 appear manifestly by any other means that he was willing that his testament should be valid ; we pronounce, that it would be valid, by virtue of this new act, amounting, to a republication of his will. § 5. If a soldier is given in arrogation, or, being the son of a family, is emancipated, his testament is nevertheless good, having the same effect as if he had republished it by a new declaration : for it is by no means invalidated by his change of state. § 6. We must here make it known that since the ancient laws, as well as the later constitutions, have, in imitation of the peculia castrensia, or military estates, given to some persons peculia quasi castrensia, or quasi-military estates, and have indulged some of these in the liberty of making testaments whilst they were under power, we therefore, extending this privilege stiU further, have by our ordinance permitted all persons who possess these estates to make their testaments on condition that they observe the common solemnities of the law. But whoever thoroughly inspects our constitution will have an opportunity of informing himself of every point which relates to the before-mentioned privilege. Tit. XII. Quibus non est permissum facere testamentum. The right of making a testament with effect is not granted to aU persons alike ; for those who are under the power of others have not this right ; insomuch that, although parents have given permission, their children will not be the more enabled by it to make a testament legally valid ; if we except such whom we have already mentioned, and principally those who, on account of their being in the army,'have permission by virtue of our constitutions to dispose by testament of whatever they have acquired by military service, although they are stiU under the power of their parents. This permission was at first granted by Augustus, Nerva, and that excellent prince Trajan, to actual soldiers only ; but afterwards it was extended by the Emperor Adrian to the veterans, that is, to those who had received their dismission ; and therefore, if the son of a family bequeaths his castrensian, or military estate, it wiU pass to him who is instituted 438 OUTLINE OF ROMAN HISTORY. the heir; hut if suoli son dies intestate without children, or brothers, his estate will then pass of common right to his father, or other paternal ascendants. We may from hence infer that whatever a soldier, althojigh under power, hath acquired by military service, it cannot'be taken from him, even by his father ; and that the creditors of the father can neither sell it, nor other- wise disturb the son in his possession ; and that what is thus acquired is not liable to be shared in common with brothers upon the demise of the father, but that it remains the sole property of him who acquired it ; although by the civil law the pecuUa, or estates of those who are under power, are reckoned among the wealth of their parents, in the same manner as the peculium of a slave is esteemed the property of his master. But those estates must be excepted which, by the constitutions of the emperors, and chiefly by our own, are prohibited for diverse reasons to be acquired for parents. Upon the whole, if the son of a f anuly, who is neither possessed of a military nor quasi- military estate, makes a testament, it will not be valid, even although- he is afterwards emiincipated, and becomes sui Juris before his death. § 1. A person within the age of puberty can by no means make a good testament, because he is not supposed to possess that judgment of mind which is requisite ; and the same holds true of a madman, inasmuch -as he is deprived of his senses. And the testament of a minor under pubeiiy wiU not become valid, although he arrives at puberty before his death ; neither will the testament of a madman become valid, although he afterwards regains his senses, and then dies. But ii he makes his testament during a lucid intei-val, he is a legal testator ; since it is certain that the testament which a man hath made before the malady of madness has seized upon him is good : for a subsequent fit of frenzy can neither destroy the force of a regular testament, nor the validity of any other transaction, in which the rules of the law have been punctually observed. § 2. A prodigal also, who is under an interdiction, and pro- hibited from having the management of his own affairs, cannot make a testament ; but if he has bequeathed his estate before interdiction, his testament will be valid. JUSTINIAN— BOOK II. 439 § 3. A man deaf and dumb is not always capable of making a testament : but we would be understood to mean this of bim who is so deaf as to be unable to hear at all, and not of him who is aflSicted only with a thickness of hearing ; and of him who is so dumb as to be totally deprived of utterance, and not of him who only labourii under a difficulty of speech : for it often happens that the most literate persons lose the faculty of hearing and speaking by various misfortunes ; we have, there- fore, published a constitution which aids all such persons ; so that in certain cases they may make testaments, if they observe the rules of our ordinance, and may do many other acts which are there permitted. Bub if any man after making his testa- ment becomes either deaf or mute by reason of ill-health or any other accident,- his testament will notwithstanding this remain good. § 4. A blind man is not allowed to have the power of making a testament, unless he observes those rules which the law of the Emperor Justiu, our father, has introduced. § 5. The testament of him who is in the hands of an enemy is not valid, if it was made during his captivity, even although he lives to return. But a testament made by a man in the city, or before captivity, is good, • either by virtue of the jus postliminii if the prisoner returns; or by virtue of the law Cornelia, i£ he dies a captive. Tit. XIII. Be exhwredatione liberorum. The solemnities of law, which we have before explained, are not alone sufficient to make a testamfent valid. For he who has a son under his power should take care either to institute him his heir, or to disinherit him nominally ; for if a father in his testament pretermits or passes over his son in silenee, the testament will have no effect. And even if the son dies, Kving the father, yet no one can take upon himself the heirship by virtue of that testament, inasmuch as it was nuH from the very beginning. But the ancients did not observe this rule in regard to daughters and grandchildren of either sex, though descended from the male line ; for, although these were neither instituted 440 OUTLINE OF EOMAN HISTOHY. heirs nor disinherited, yet the testament was not invalidated, ■because a right of accretion entitled them to a certain portion of the inheritance. Parents were, therefore, not necessitated to disinherit these children nominally, hut might do it inter cceteros. A child is nominally disinherited if the words of the will are : "Let Titius my son be disinherited" ; or even thus : "Let my son he disinherited," without the addition of any proper name, on supposition that the testator had no other son Kving. § 1. Also posthumous children should either he instituted heirs or disinherited ; and in this the condition of all children is equal ; but if a posthumous son, or any posthumous descendant in the right line, whether male or female, is pretermitted in a tes- tament, such testament will nevertheless be valid at the time of making, hut hy the subsequent hirth of a child of either sex it wiU he annulled. And therefore, if a matron, from whom there is reason to expect a posthumous child, should miscarry, nothing can prevent the written heirs from entering upon the inheritance. But female posthumous children may be either nomiaaUy dis- inherited, or inter cceteros by a general clause ; yet, i£ they are disinherited inter cceteros, something must be left them to show that they were not omitted through forgetfulness. But male posthumous children — i. e., sons and their descendants in the direct line — cannot he disiuherited otherwise than nominally, in this form : " Whatever son is hereafter born to me, I disinherit him." § 2. Those also are reckoned in the place of posthumous children who, succeeding in the stead of proper heirs, hecome, by a quasi-birth, proper heirs to their parents. For example, if Titius has a son under his power, and by hi-m a grandson or granddaughter, then would the son, because he is first in degree, have the sole right of a proper heir, although the grandson or granddaughter by that son is under the same parental power. But if the son of Titius should die in his father's lifetime, or should hy any other means cease to he under his father's power, the grandson or granddaughter would succeed in his place, and would thus, by what may be called a quasi-birth, obtain the right of a proper heir. Therefore, as it behoves a testator for his own security either to institute or disinherit his son, lest his JUSTINIAN — BOOK II. 441 testament should be deemed not legal, so it is equally necessary for him either to institute or disinherit his grandson or grand- daughter by that son, lest, if his son should die in his — the testator's— lifetime, his grandson or granddaughter, succeeding to the place of his son, should make void his testament by a quasi-agnation. And this has been introduced by the law Julia Velleia, in which is set forth a form of disinheriting quasi- posthumous children, similar to that of disinheriting posthumous children. § 3. In regard to emancipated children, the civil law does not make it necessary either to institute them heirs, or to disinherit them in a testament, inasmuch as they are not sui hceredes, i.e., proper heirs. But the praetor commands, that all children in general, whether male or female, if they are not instituted heirs, shall be disinherited; the males nominally, the females inter cceferos : for i£ children have neither been instituted heirs, nor properly disinherited in the manner which we have mentioned, the prsetor gives them the possession of the goods contrary to the disposition of the testament. § 4. Adopted children, as long as they continue under the power of their adoptive father, are entitled to the same rights as children born in lawful matrimony; and therefore they must either be iastituted heirs, or disinherited, according to the rules laid down in regard to natural and lawful children. But it is neither enacted by the civil law, nor enjoined by prsetorian equity, that children emancipated by an adoptive father should be numbered among his natural children, so as to partake of their rights : whence it happens, that adopted children, as long as they continue in adoption, are reputed strangers to their natural parents, who are not necessitated either to institute them heirs, or to disinherit them ; but when they are emancipated by their adoptive father, they are then in the same state in which they would have been if they had been emancipated by their natural father. § 5. These were the rules which the ancient lawyers intro- duced. But we — not thinking that any distinction can reason- ably be made between the two sexes, inasmuch as they both contribute alike to the procreation of the species, and because, by 442 OUTLINE OF ROMAN HISTORY. the ancient law of the Twelve Tables, all children, male as well as female, were equally called to the succession ab intestato, which law the praetors seem afterwards to have followed — have by our constitution introduced the same law in regard both to sons and daughters, and to all the other descendants in the male line, whether in being or posthumous : so that all children, whether they are proper heirs or emancipated, must either be instituted heirs, or nominally disinherited. And in regard to adopted children we have introduced certain regulations, which are contained in our constitution of adoptions. § 6. If a soldier makes his testament whilst he is upon a mili- tary expedition, and neither nominally disinherits his children already bom, nor his posthumous children, but passes them over in silence, although it is known to him that he has such children, or that his wife was enceinte, it is provided by the constitutions of the emperors, that such silence shall be of equal force with a nominal disinherison. § 7. Neither a mother, nor a grandfather on the mother's side, is under any necessity of either instituting their children heirs or of disinheriting them, but may pass them by in silence ; for the silence of a mother, a maternal grandfather, and of all other ascendants on the mother's side, works the same effect as an actual disinherison by a father. For a mother is not obliged to disinherit her children, if she does not think proper to institute them her heirs; neither is a maternal grandfather under a necessity either of instituting or disinheriting his grandson or granddaughter by a daughter, inasmuch as this is not required either by the civil law, or the edict of the prastor, which gives the possession of goods contra tabulas — i.e., contrary to the dis- position of the testament — to those children who have been passfed over in silence. But children in this case are not without a remedy against the testament of their mother or maternal grandfather, which shall be showed hereafter. Tit. XIV. Be hmredibus instihiendis, A man may appoint slaves as well as freemen to be his heirs by testament, and may nominate the slaves of another as well as JUSTINIAN — BOOK II. 443 his own ; yet, according to the opinion of many, no master could formerly institute his own slaves to be his heirs without giving them their liberty ; but at present, by virtue of our constitution, masters may appoint their proper slaves to be their heirs without making even any mention of liberty : .and this we have intro- duced, not for the sake of innovation, but because it seemed most just, and because Paulus, in his commentaries upon Sabinus and Plautius, affirms that this was also the opinion of Atilicinus. Here note, that we call a slave proprius sermis if the testator had only a nude property in him, the usufruct being in another. But in a constitution of the Emperors Severus and Antoninus there is a case in which a slave was not permitted to be instituted an heir by his owner, although his liberty was expressly given to him. The words of the constitution are these : — " It is con- sonant to right reason that no slave, accused of adultery with his mistress, shall be allowed, before a sentence of acquittal, to be made free by that mistress, who is alleged to be a partner in the crime." It therefore follows, that if a mistress institutes such a slave to be her heir, the institution is of no avail. The expression alienus sermis — i.e., the slave of another — is also some- times used to denote him of whom the testator had the usufruct, though not the property. 1 1. When a slave hath been instituted by his master, and remains in the same state, he will obtain his freedom at the death of his master by virtue of the testament, and become his necessary heir. But if that slave is manumitted in the lifetime of his master, it is in his power either to accept or refuse the inheritance ; for he will not become a necessary heir, as he cannot be said to have obtained both his liberty and the inherit- ance by virtue of the testament. But if such instituted heir should be aliened, he cannot then enter upon the inheritance but at the command of his new master, who, by means of his slave, may become the heir of the testator. For a slave who hath been aliened cannot afterwards obtain his liberty, or take an inherit- ance to his own use, by virtue of the testament of that master who made the alienation, although his freedom was expressly given by such testament, because a master who has aliened his slave seems to have departed from having any intention to 444 OUTLINE OF BOMAN HISTORY. enfranchise him. And when the slave of another is appointed an heir, hut-remains in the same condition, he cannot take the inheritance hut hy his master's order ; and if the slave is aliened in the lifetime of the testator, or even after his death, at any time before he has actually taken the inheritance, he must then either accept or refuse it at the ^command of his new master. But if a slave is enfranchised, living the testator, or after his death before he has accepted the heirship, he either may or may not enter upon the inheritance at his own option. § 2. The slave of another may legally be instituted an heir after the death of his master ; for the slaves of an inheritance not entered upon are entitled to the /actio passiva testamenti, i.e., are capable of taking though not of giving by testament; and the reason of this is, because an inheritance which is open, and not as yet entered upon, is supposed to represent the person of the deceased, and not the person of the future heir ; and thus the slave, even of a child in the womb, may be constituted an heir.. § 3. If the slave of many masters, who are all capable of taking by testament, is instituted an heir by a stranger, then that slave .acquires a part of the inheritance for each master who commanded him to take it, according to their several proportions of property. § 4. A testator may appoint one heir, or as many heirs as he pleases in infinitum. § 5. An inheritance is generally divided into twelve uncim, that is, parts or ounces, all which are comprehended under one total, termed an as : and each of these parts, from the uncia to the as, has its peculiar name, viz. : — Sextans, a sixth part, or two ounces. Quadrans, a fourth, or three ounces. Triens, a third, or four oxmces. Quincunx, five ounces. Semis, a moiety, or sis ounces. Septunx, seven ounces. Bes, two-thirds, or eight ounces ; quasi, his triens. Dodrans, nine ounces, or three-fourths ; quasi, dempto quad- rants, as. JUSTINIAN — BOOK II. 445 Bextans, ten ounces ; quasi, dempto setctante, as. JDeunx, eleven ounces out of twelve ; quasi, dempta tmcid, as. But it is not necessary that an as, or total, should always he divided into twelve parts ; for an as may consist of what parts the testator pleases ; and if a man names hut one heir, and appoints him ex semisse, i.e., the heir of six parts, yet the whole as will he included ; for no man can die partly testate and partly intestate, except a soldier, whose intention is solely to be re- garded. And a testator may also divide his estate into as many parts as he thinks convenient. § 6. When a testator hath instituted many heirs, it is incum- hent upon him to make a division of his effects if he does not intend that all his heirs should share his inheritance in equal portions : for if no distribution is made by the testator, it is evident that aU his heirs must be equal sharers. But if the shares of some of the nominated heirs in a testament should be expressed, and the share or shares of one or more should be omitted, then he or they whose share or shares had not been specified would be entitled to the undisposed remainder of the inheritance. But if a whole as, or inheritance, is given among some of the nominated heirs, yet they whose shares are men- tioned are entitled only to a moiety ; and he or they whose shares are not mentioned are called to the succession of the other moiety. And when a whole inheritance is not given away, it is immaterial whether an heir whose share is not specified holds the first, middle, or last place in the nomination ; for whatever place he holds in it, he is equally entitled to the part not be- queathed in the testament. § 7. Let us now inquire what the law would direct if a part of an inheritance should remain unbequeathed, and yet a certain portion of it should be given by testament to every nominated heir; as if three should be instituted, and a fourth given to each. It is clear in this case that the undisposed of part would vest in each of them in proportion to the share bequeathed to him, and that each would be reputed the written heir of a third. And, on the contrary, if many are nominated heirs in certain portions, so as- to exceed the as, then each heir must suffer a defalcation pro raid : for example, if four are instituted, and 446 OUTLINE OF ROMAN HISTORY. a third is given to eacli, then this disposition would work the same effect as if each of the written heirs had been instituted to a fourth only. § 8. If more parts or ounces than twelve are bequeathed, then he who is instituted without any prescribed share shall be en- titled to what remains of a dupqndius, that is, of twenty-four parts ; and if more than twenty-four parts are bequeathed, then the heir who is nominated without any determinate share is entitled to the remainder of a tripondius, i. e., of thirty-six parts or ounces. But all these parts are afterwards reduced to twelve. § 9. An heir may be constituted simply or conditionally, but not from or to any certain period : as if a testator should say to Titius,' " Be thou my heir after five years, to be computed from my death," or "from the calends of such a month," or "till the calends of such a month " ; for time thus added is, in law, deemed superfluous, and such an institution takes place imme- diately, as if it was a simple appointment. § 10. An impossible condition in the institution of heirs, the disposition of legacies, the appointment of trusts, or the confer- ring of liberty, is treated as unwritten or void. § 11. If many conditions are jointly required in the institu- tion of an heir ; as thus, if this thing and that thing be done, then both must be complied with. But if the conditions are placed separately and in the disjunctive ; as thus, if this or that be done, it will then be suflBcient to obey either. § 12. A testator may appoint persons whom he hath never seen to be his heirs. He may, for example, institute his brother's sons, who are in a foreign country, although he does not know where they are; for the want of this knowledge in a testator will nt)t vitiate the institution of an heir. Tit. XV. De milgari suhstitutione. A man by testament may appoint many degrees of heirs ; as thus : " If Titius will not be my heir, let Seius be my heir." And he may proceed in such a substitution as far as he shall think proper; and lastly, in default of all others, he may consti- tute a slave to be his necessary heir. JUSTINIAN — BOOK 11.^ 447 § 1. A testator may substitute many in tlie place of one, or one in tlie place of many, or one in the place of each, or he may substitute even his instituted heirs reciprocally to one another. § 2. If a testator, having instituted several co-heirs in unequal portions, substitutes them reciprocally the one to the other, and makes no mention of their shares of the inheritance in the sub- stitution, he seems to have given the same shares by the substi- tution -which he gave by the institution ; and this is agreeable to the rescript of the Emperor Antoninus. § 3. If a co-heir is substituted to an instituted heir, and a third person is substituted to that co-heir, the Emperors Severus and Antoninus have by rescript ordained that such substituted person shall be admitted to the portions of both the co-heirs ■without distinction. § 4. If a testator constitutes "the slave of another to be his heir, supposing him to be free, and adds, "if he does not become my heir I substitute Msevius in his place," then, if that slave should afterwards enter upon the inheritance at the command of his master, Msevius the substitute would be admitted to a moietyl For the words, "if he does not become my heir," in regard to him whom the testator knew to be under the dominion of another are taken to mean, if he will neither become my heir himself, nor cause another to be my heir ; but in regard to him whom the testator supposed to be free, they imply this condition, viz., if my heir will neither acquire the inheritance for himself, nor for hi'm to whose dominion he may afterwards become subject. But it was determined by Tiberius, the emperor, in the case of his own slave Parthenius, that a substitute in such a case should be admitted to a moiety. Tit. XVI. De pv^illari suhstitutione. A parent can substitute to Ms children, who are within puberty, and under his power, not only in the manner before mentioned, which is thus — " If my children will not be my heirs, let some other person be my heir ; " but he may write, "If my children actually become my heirs, but die within puberty, let another become their heir ;" for example : " let Titius, my son, be my heir ; and if he either does not, or does, become my heir, 448 OUTLINE OF KOMAN HISTORY. and dies tefore he ceases to be under tutelage" — i. e., before lie arrives at the age of puberty—" let Seius be my heir." And in this case, if the son does not entdr upon the inheritance, the substitute becomes heir to the father ; and if the son takes the inheritance, and dies a pupil before the age of puberty, the substitute is then heir to the son. For custom has ordained that parents may make wills for their children when their children are not of age to make wills for themselves. § 1. Excited by humanity, and the reasonableness of the foregoing usage, we have inserted a constitution into our code by which it is provided that if a man has children, grandchildren, or great-grandchildren, who are mad or disordered in their senses, he may make a substitution of certain persons to such children in the manner of a pupillary substitution, although they are arrived at the age of full puberty. But we have decreed that this species of substitution shall be void as soon as they shall have recovered from their disorder ; and this we have done ia imitation of pupillary substitution, which ceases to be in force when the minor attains to puberty. § 2. In a pupillary substitution, made after the form before mentioned, there are in a manner two testaments, the one of the father, the other of the son ; as if the son had instituted an heir for himself : at least there is in such a substitution one testament containing, a disposition of two inheritances. § 3. If a testator is apprehensive lest, at the time of his death, his son, being as yet a pupU, should be liable to fraud and imposition if a substitute should be publicly given to him, he ought to insert a vulgar substitution in the first tablet of his testament, and to write that substitution, in which a substitute is named, if his son should die within puberty, in the lower tablet, which ought to be separately tied up and sealed ; and it also behoves the testator to insert a clause in the first part of his testament, forbidding the lower part to be opened whilst his son is alive, and within the age of puberty. But although it is certain that a substitution to a son within puberty is not less valid because it is written on the same tablet in which the testator hath appointed him to be his heir, it is, however, unsafe and dangerous. JUSTINIAN — BOOK II. 449 § 4. Parents are not only allowed to give a substitute to their children within puherty if such children become their heirs, and die within puberty, but parents are also permitted to give a substitute to their disinherited children ; and therefore what- ever a disinherited child, within the age of puberty, may have acquired by inheritances, by legacies, or by the gift of relations and friends, the whole wiU become the property of the substi- tute. All which we have hitherto said concerning the substitu- tion of pupils, whether they are instituted heirs or disinherited children, is understood to extend also to posthumous children. § 5. ' No parent can make a testament for his children unless he hath made a testament for himself, for the testament of a child within puberty is a part and consequence of the testament of the parent, insomuch that if the testament of the father is not valid the testament of the son will not take effect. § 6. A parent may make a pupillary substitution to each of his children, or to him who shall die the last within puberty. He may substitute to each of his children, if he is unwilling that any of them should die intestate ; and he may substitute to the last who shall die within puberty if he is willing that they should preserve among themselves the entire right of succession. § 7. A substitution may be made to a child within puberty, either nominally, as, for example — " If my son becomes my heir and dies a pupil let Titius be my heir"; or generally thus — " "Whoever shall be my heir, let the same person be a substi- tute to my son if he dies within puberty." And by these gene- ral words all who have been instituted, and have taken upon them the inheritance of the father, must be called, by virtue of the substitution, to the inheritance of the son if he dies within puberty, each being entitled to a part of the son's inheritance in proportion to the share which he had in the father's. § 8. A pupillary substitution may be made to males till they airive at fourteen complete, and to females till they have com- pleted their twelfth year ; and when they exceed either of these ages the substitution becomes extinct. § 9. A pupillary substitution cannot be made with effect either to a. stranger who is instituted, or even to a son who is instituted, if his age exceeds that of puberty. But a testator may oblige N. G G 450 -OUTLINE OF ROMAN HISTORY. his heir to give to another either a part, or even the whole, of the inheritance, by -virtue of a fidei-commissum, or gift in trust, which we will treat in its proper place. Tit. XVII. Quibus mo^is testamenta infirmantur. A testament legally made remains valid until it is either broken or rendered ineffectual. § 1. A testament is said to be broken or revoked when the force of it is destroyed, whilst the testator still remains in the same state. For if a testator, after making his testament, should arrogate an independent person, by licence from the emperor, or, in the presence of the praetor, should adopt a child under the power of his natural parent, by virtue of our consti- tution, then that testament would be broken by this quasi-birth of a proper heir. § 2. A former testament, although legally perfect, may be broken or revoked by a subsequent testament ; nor is it material whether the heir nominated in the later testament can or will take the heirship at the death of the testator ; for the only thing regarded is whether he might have been the heir ; and therefore, if an instituted heir should refuse to take the heirship, or should die, living the testator, or after his death, and before he could enter upon the inheritance, or if he should die before the con- dition is accomplished upon which he was instituted, then in any of these cases the testator would die intestate ; for the first testament would be invalid, being broken or revoked by the second, and the second would be of as little force for want of an heir. § 3. If a man who has already made a testament legally perfect, should make a subsequent testament equally good, and institute an heir in it to some particular things only, the Emperors Severus and Antoninus have by rescript declared, that in this case the first will shall be broken or revoked as a testament. But we have commanded the words of this consti- tution to be here inserted. " The Emperors Severus and Anto- ninus to Cocceius Campanus. We determine, that a second testament, although the heir named in it is not universal but JUSTINIAN — BOOK II. 451 imstituted to particular things only, shall be as good in law as if no mention had been made of particular things ; yet it is not to be doubted but that the -written heir shall be obliged to content himself either with the things given him, or with the fourth part, allowed by the Faloidian law, and shall be bound to restore the rest of the inheritance to the heirs instituted ia the first testament, on account of the words, denoting a trust, inserted in the second testament, by which words it is expressly declared, that the first testament shall subsist." And in this manner a testament may be said to be broken or cancelled. § 4. Testaments legally made are also invalidated, if the testator suffers diminution, that is, changes his condition : and in the first book of our institutions we have showed by what means diminution, or a change of state, may happen. § 5. In the case of diminution testaments are said to become irrita, i.e., ineffectual; although those which are broken or revoked, and those which from the beginning were not legal, do all equally become ineffectual — or irrita — in reality. We may also term those testaments broken which are at first legally made, but are afterwards rendered ineffectual by diminution, or change of state. But as it is proper that every particular defect should be distinguished by a particular appellation, those testa- ments which are illegal are termed null ; those which were at first legal, but afterwards lose their force by some revocatory act of the testator, are said to be rupta, or broken ; and those, since the making of which the testator hath suffered a change of state, are said to be irrita, or ineffectual. § 6. But a testament which was at first legally made, and hath afterwards been rendered void by diminution, is not always without effect ; for the written heir is entitled to the possession of the goods by virtue of the testament, if it appear that it was sealed by seven witnesses, and that the testator was a Roman citizen, and not under power at the time of his death ; but if a testament became void because the testator had lost the right of a citizen, or his liberty, or had given himself in adoption, and, at the time of his death, still continued under the power of his adopted father, then the written heir could not demand the possession of the goods in consequence of the testament. gg2 452 ' OUTLIKB OF EOMAN HISTORY. § 7. A testament cannot be inTalidated solely because the testator was afterwards unwilling that it should subsist ; so that if a man after making one testament should begin another, and by reason of death or change of mind should not proceed to perfect that testament, it is provided by the oration or ordinance of the Emperor Pertinax that the first testament shall not be revoked, unless the second is both legal and perfect ; for an imperfect testament is undoubtedly null. § 8. The Emperor Pertinax hath declared by the same ordi' nance that he would not take the inheritance of any testator who left him his heir because a law suit was depending ; that he would never establish a will deficient in point of form if he was upon that account instituted the heir ; that he would by no means suffer himself to be nominated an heir by the mere word of mouth of a testator ; and that he would never take any emolu- ment by virtue of any writing whatever not authorized by the strict rules of law. The Emperors Severus and Antoninus have also often issued rescripts to the same purpose; " for although," say they, "we are certainly not subject to the laws, yet we live in obedience to them." Tit. XVIII. Be inoffidoso testammto. Inasmuch as parents often disinherit their children without cause, or omit to mention them in their testaments, it has there- fore been introduced as law that children who have been im- justly disinherited, or unjustly omitted in the testaments of their parents, may complain that such testaments' are inofficious, under colour that their parents were not of sane mind when they made them ; but in these cases it is not averred to be strictly true that the testator was really mad or disordered in his senses, but it is urged as a mere fiction only ; for the testa- ment is acknowledged to have been well made, and the only exception to it is that the testament is not consistent with the duty of a parent. For if a testator was reaUy not in his senses at the time of making his testament it is certainly nuU. § 1. Children are not the only persons allowed to complain that testaments are inofficious, for parents are in like manner JUSTINIAN — BOOK II. 453 permitted to make the same complaint. Also the brothers and sisters of a testator are, by virtue of the imperial constitutions, preferred to infamous persons, if any such have been instituted by the deceased tQ be his heirs ; but brothers and sisters are not therefore allowed to make a complaint against any heir whom the testator shall have instituted. And collaterals, beyond brothers and sisters, can by no means complain of the undutiful- ness of a testament if their right to complain is opposed ; but if their right of complaining is not disputed, and the testament is annulled, yet those only can be benefited who are the nearest in succession upon an intestacy. § 2. Adopted children, according to the distinction taken in our constitution, are admitted, as well as natural children, to complain against a testament as inofficious, if they can obtain the effects of the deceased no other way ; but if they can get the whole or a part of the inheritance by any other means, they then cannot bring a complaint of undutifulness against the testament. Posthumous children also, who are unable to recover their inheritance by any other method are allowed to bring this complaint. § 3. What we have hitherto said must be understood to take place only when nothing has been left by the will of the de- ceased ; — and this hath been introduced by our constitution out of reverence to parents and the ties of nature; — for if any single thing, or the least part of an inheritance, hath been bequeathed to those who have a right to a fourth part or legitime portion of the testator's estate, they are barred from bringing a querele or complaint against the testament as undutiful, but are entitled by action to recover whatever sum is wanting to complete their legitime, although it was not added by the testator, that their legitime portion should be completed according to the arbitra- tion of some person of an approved character. § 4. If a tutor shall accept a legacy in the name of his pupil, in consequence of a bequest made in the testament of such tutor's father, who left nothing to his son, the tutor may never- theless complain in his own name against the testament of his father as undutiful. § 6. And, on the contrary, if a tutor should bring a complaint 454 OUTLINE OP ROMAN HISTORY. of undutifulness in the name of his pupil against the testament of his pupil's father, who left nothing to his son, and this testa- ment should be confirmed by sentence, yet the tutor would not afterwards be barred on account of this proceeding from taking whatever was left him in that testament, which he controverted only for the benefit of his pupi^ and by virtue of his office. § 6. No person who hath right can be hindered from bringing a complaint of undutifulness, unless he hath in some manner received his fourth or legitime, part, as by being appointed heir, by haviag a legacy, or by means of a trust for his use; or unless his legitime part hath been given him by donation propter mortem, or even inter vivos — ^in those cases of which our cbnsti- tution makes mention — or by any other means set forth in our ordiuances. What we have said of the fourth or legitime is to be so understood, that if there are more persons than one who have a right to bring a plaint of undutifulness against a testament, yet one-fourth will be sufficient, divided among them all in equal portions. Tit. XIX. Be Imredum qualitate et differentia. Heirs are divided into three sorts, called proper, proper and necessary, and strangers. § 1. A slave instituted by his master is a necessary heir ; and he is so called, because at the death of the testator he becomes instantly free, and is compellable to take the heirship ; he there- fore who suspects his circumstances, commonly institutes his slave to be his heir ia the first, second, or some other place; so that if he does not leave a sum equal to his debts, the goods which are seized, sold, or divided among his creditors, may rather seem to be those of his heir than his own. But a slave, in recom- pense of this dishonour, is allowed to reserve to himself whatever he hath acquired after the death of his patron ; for such acquisi- tions are not to be sold, although the goods of the deceased are ever so insufficient for the payment of his creditors. § 2. Proper and necessary heirs are sons, daughters, grand- sons or granddaughters by a son, or any other descendants in the dii'oct Ime, who were in the power of the deceased at the JUSTINIAN — BOOK II. 455 time of his death. But in order to constitute grandchildren proper or domestic heirs, it does not sufEce that they were in the power of their grandfather at the time of his decease ; hut it is requisite that their father should have ceased to be a proper heir in the lifetime of his father, by having been freed, either by death or some other means, from paternal authority ; for then it is that the grandson or granddaughter succeeds in the place of their father. And note, that heirs are called sui, or proper, because they are domestic, and in the very Kfetime of their father are reputed masters or proprietors of the inheritance in a certain degree. Hence it is that if a man dies intestate, his children are preferred before all others to the succession, and are called necessary heirs, because, willing or unwilling, they become the heirs of their parent according to the law of the Twelve Tables, either by virtue of a testament, or in "consequence of an intestacy. But when children request it, the praetor permits them to abstain from the inheritance, that the effects of their parents rather than their own may be seized by the creditors. § 3. But aU other heirs, not subject to the power of the testa- tor at the time of his death, are called strangers : thus, even children who are not under the power of their father, but yet are constituted his heirs, are reckoned strangers in a legal sense ; and for the same reason children instituted heirs by their mother are also reputed strangers ; for a woman is not allowed to have her children under her own power. A slave also whom his master hath instituted by testament, and afterwards manumitted, is numbered among those heirs who are called strangers. § 4. In regard to strangers, it is requisite that they should be capable of the faction of a testament, whether they are instituted heirs themselves, or whether those under their power are insti- tuted. And this qualification is required at two several times ; at the time of making the testament, that the institution may be valid; and at the time of the testator's death, that such institution may take effect: and further, whether an heir is appointed simply or conditionally, yet he ought to be capable of the faction of a testament at the time of entering upon the inheritance ; for his right is principally regarded at the time of acquiring the possession. But in the intermediate'time, between 456 OUTLINE OF KOMAN HISTORY. the making of the testament and the death of the testator, or the completion of the condition of the institution, the heir will not be prejudiced hy incapacity or change of state ; because the three particular times which we have mentioned are the times to be regarded. But a man capable of giving his effects by testa- ment is not the only person who is said to have testamenti f actionem ; for whoever is capable of taking for the benefit 'of himself, or of acquiring by testament for the benefit of another, is also understood to have the faction of a testament; and therefore persons mad, mute, or posthumous, also infants, the sons of a family, or slaves not your own, may aU be said to have the faction of a testament in its passive signification. For although such persons are incapable of making a testament, yet they are capable of acquiring by testament either for themselves or others. § 5. Strangers who are appointed heirs have the power of deliberating whether they will or will not enter upon an inherit-* ance. But if even a proper or domestic heir, who has the liberty of abstaining, should intermeddle, or if a stranger who is per- mitted to deliberate should once take an inheritance, it will not afterwards be in his power to renounce it, unless he was under the age of twenty -five years ; for the praetor, who in all other cases relieves minors who have been deceived, affords them also his assistance when they rashly take upon themselves an injurious inheritance. And here it must be noted, that the Emperor Adrian once gave permission to a major, or person of fuU age, to relinquish an inheritance, when it appeared to be encumbered with a great debt, which had been concealed till the heir had taken upon himself the administration. But this permission was granted as a very special instance of beneficence. The Emperor Grordian afterwards promulged a constitution for the indiemnifi- cation of heirs, yet confined the force of it to those only who were of the soldiery. But our extended benevolence hath rendered this benefit common to aU our subjects in general, having dictated a constitution both just and noble, which if heirs will strictly observe, they may enter upon their inheritance, and not be made further chargeable than the value of the estate will extend ; so that they are under no necessity of praying a JUSTINIAN — BOOK II. 457 time for deliberation, unless they omit to observe the tenor of our ordinance, choosing rather to deliberate and submit them- selves to the danger attending the acceptance of an inheritance according to the ancient law. § 6. A stranger who is instituted by testament, or called by law to take a succession in case of an intestacy, may make him- seK accountable as heir either by doing some act as such, or by barely signifying his acceptance of the heirship. And a man is deemed to act as the heir of an inheritance if he treats it as his own by selling any part of it, by c-ultivating the ground, or by tilling it ; or even if he declares his consent to accept it in any manner, either by act or speech, when he knows at the same time that the person with whose estate he intermeddles is dead testate or intestate, and that he himself is the heir : for to act as heir is to act as proprietor ; and the ancients frequently used the term heir when they would denote the proprietor of an estate. But as a stranger may become an heir by a bare consent only, so, on the contrary, by a mere dissent he may bar himself from an inheritance. And nothing prevents but that a person who was bom deaf and dumb, or became so by accident, may, by acting as heir, either acquire the advantages or bring upon himself the disadvantages of an inheritance, if he was sensible of what he was doiQg, and that he was acting in the capacity of an heir. Tit. XX. Be legatis. After what has been said we will make some observations upon the doctrine of legacies, although a discussion of this part of the law may not seem exactly to fall in with the subject proposed ; for we are treating only of those legal methods by which things may be acquired universally; but as we have already spoken at large of testaments and testamentary heirs, it is not without reason that we intend to treat of legacies in the following paragraphs. § 1. A legacy is a species of donation which is left or ordered by the deceased, and, if possible, must be performed by his heir. § 2. Anciently there were f oiu- kinds of legacies in use, namely, per mndicationem, per damnationem, sinendi modo, and per prce- 458 OUTLINE OF KOMAN HISTORY, ceptionem. And to eaoh of these was assigned a certain form of words by which their different species were signified ; but these fixed forms had been wholly taken away by the imperial ordi- nance of the later emperors, Constantinus, Constantius, and Constans. And we also, being desirous that the wills of de- ceased persons might be corroborated, and that their intentions should be more regarded than their words, have with great care and study composed a constitution, which enacts that the nature of all legacies shall be the same, and that legataries, by what- ever words they are constituted, may sue for what is left them, not only by a personal but by a real or hypothecary action. But the reader may most perfectly comprehend the well-weighed matter of this constitution by perusing the tenor of it. § 3. But we have judged it expedient that our constitution should not rest here, but extend still further ; for when we ob- served that the ancients confined legacies within very strict rules, and yet were extremely favourable to gifts in trust, it was thought necessary to make all legacies equal to gifts in trust, that no difference in effect should remain between them ; so that whatever is deficient in the nature of legacies may be sup- plied by the nature of trusts, and whatever is abundant in the nature of legacies may become an accretion to the nature of trusts. But that we may not raise difficulties, and perplex the minds of young persons at their entrance upon the study of the law, by explaining these things promiscuously, we have esteemed it worth our pains to treat separately first of legacies, and after- wards of trusts, that, the nature of both being known, the student thus instructed may more easily understand their relation and intermixture. § 4. A testator may not only bequeath his own property, or that of his heir, but also the property of others ; and if the thing bequeathed belongs to another, the heir can be obliged either to purchase and deliver it, or to render the value of it if it cannot be purchased. But if the thing bequeathed is not in commerce, and what the law will not permit to be purchased, the heir in this case can never be obliged to pay the value of it to the legatary ; as if a man should bequeath to another the Campus' Martins, the palaces of the prince, the temples, or any of those JUSTINIAN — BOOK II. 459 things wMoli appertain to the public ; for such legacies can be of no moment or efficacy. But when we said that a testator might bequeath the goods of another man, we would be under- stood to mean, that this can be done only if the deceased knew that what he bequeathed belonged to another, and not if he was ignorant of it ; since if he had known it, he probably would not have left such a legacy: and to this purpose is the rescript of the Emperor Antoninus. And it is incumbent upon the party- agent or legatary to bring proof that the deceased knew that what he left belonged to another ; for the heir is by no means obliged to prove that the deceased did not know it ; because, by the general rule of law, the necessity of proving lies upon the complainant. § 5. If a man bequeaths a thing which he hath pledged to a creditor, the heir is under a necessity of redeeming it ; but in this case, as in the former, concerning the goods of another, the heir cannot be obliged to redeem the thing bequeathed, unless the deceased knew that it was pledged ; and this the Emperors Severus and Antoninus have declared by their rescript. But nevertheless, whenever it appears to have been the express will of the deceased that the legatary should himself redeem the thing left to him, then the heir is free from the obligation of doing it. § 6. If a thing bequeathed is the property of another, and the legatee becomes the proprietor of it in the lifetime of the tes- tator, it is necessary to be known by what means the legatee became the proprietor ; for if he bought it he may nevertheless recover the price given by an action in consequence of the testa- ment ; but if he obtained it as a gift, or by any such lucrative title, no action will lie ; for it is a maxim, that two lucrative causes can never concur in the same person and thing. And therefore, if the same specific thing is left by two testaments to one and the same person, the question will be, when the legatary sues in virtue of one of the testaments, whether he hath obtained the thing itself, or the value of it, by virtue of the other ? for if he is already possessed of the thing itself, the suit is at an end, because he hath received it on a lucrative account : but if he hath obtained the value of it only from the heir of one of the 460 OUTLINE OF ROMAN HISTORY. testators, he may bring an action for the thing itself against the heir of the other. § 7. Things which do not exist may he rightly bequeathed, if there is hut a possibility that they may exist : thus, a man may devise the fruits which shall grow on such a spot of ground, or the offspring which shall be bom of a particular slave. § 8. When the same specific legacy is left to two persons either conjunctively or disjunctively, if they are both willing to accept it, it must be divided between them. But if one of the legatees dies in the lifetime of the testator, dislikes his legacy, or is by any means prevented from taking it, the whole vests in his co-legatee. A legacy thus worded is in the conjunctive — " I give and bequeath my slave Stichus to Titius and Seius ;" but a legacy worded as follows is in the disjunctive — " I give and bequeath my slave Stichus to Titius: I give and bequeath my slave Stichus to Seius." And although the testator should add, that he gives the " same slave Stichus to Seius," yet the legacy would never- theless be understood to be left iu the disjunctive. § 9. If a man hath bequeathed the ground of another, and the legatary hath purchased the property of that ground without the usufruct, which hath also afterwards accrued to him, it is said by Julianus, that the legatary may rightly bring an action by virtue of the testament, and demand the ground, because the usufruct is regarded as a service only. But it is the duty of a judge, in this ease, to order the price of the pro- perty of the ground to be paid, the value of the usufruct being deducted. § 10. If a man bequeaths to another what already belongs to him, the legacy is ineffectual ; for that which is already the pro- perty of a legatee can by no means become more so. And although the legatee should after the bequest alien the thing bequeathed, neither the thiag itself, nor even the value of it, would become due to him from the heir of the testator. § 11. If a testator should bequeath what is his own, as if it was the property of another, the bequest would nevertheless be good; for truth is more prevalent than what is founded upon opinion only. But even suppose the testator to imagine that what he bequeaths belongs already to the legatary, yet if it does JUSTINIAN BOOK IT. 461 not, it is certain that such a legacy would also he valid, because the ■wUl of the deceased can thus take effect. § 12. But if a testator bequeaths what is his own property, and afterwards aliens it, it is the opinion of Oelsus, that the thing bequeathed will nevertheless become due to the legatee i£ the testator did not dispose of it with an intention to oust him. The Emperors Severus and Antoninus have published their rescript to this effect ; and they have also signified by another rescript, that whoever has bequeathed a legacy, and hath after- wards pawned or mortgaged it, shaU not be deemed to have retracted it ; and that the legatee may therefore of course bring an action against the heir, and oblige him to redeem. And if a testator shall have aliened but a part of the thing bequeathed, then all that part which remains unaliened is still due ; and that which is aliened is only due, if it appears not to have been aliened by the testator with a design to retract the legacy. § 13. If a man by will bequeaths a discharge to his debtor, the bequest is effectual ; and the heir can bring no suit against the debtor, or his heir, or any one who represents him ; but, on the contrary, the heir of the testator may be convened by the debtor, and obliged to give him his discharge. A man may also by testament command his heir not to sue a debtor within a time limited. § 14. On the contrary, if a debtor bequeaths by testament to his creditor the money which he owes him, this legacy is ineffec- tual, if the value of the legacy amounts but merely to the value of the debt ; for thus the creditor can receive no benefit from the legacy. But if a debtor bequeaths simply to his creditor a sum of money, which was to be paid at a day certain, or which he owed upon condition, the legacy will take effect on account of the representation, i.e., on account of the immediate payment, the legacy becoming due before the debt. But according to Papinian, if the day of payment should come, or the event of the condition happen, in the lifetime of the testator, the legacy would nevertheless be effectual, because it was once good; which is true. For we are by'no means satisfied with the opinion of those who imagine, that a legacy once good may afterwards become extinct, 462 OUTLINE OF ROMAN HISTORY. by falling into a state from which it could not have taken a legal commencement. § 15. If a man gives back to his wife by legacy her marriage portion, the legacy is valid; for such a legacy is more beneficial to her than the action which she might maintaia for the recovery of her portion. But if a husband bequeaths to his wife her marriage portion, and hath never actually received it, the Emperors Severus and Antoninus have declared by their rescript, that if it is left simply without any specification of a sum certain, the legacy is void ; but that if any certain sum or thing is speci- fied, or if the instruments in which the exact value of the portion is mentioned are referred to, the legacy is valid. § 16. If a thing bequeathed should perish before delivery otherwise than by the act or fault of the heir, the loss must fall upon the legatary. And if the slave of another, who is bequeathed, should be manumitted, and the heir hath not been privy to the manumission, he can be subject to no action. But if a testator bequeaths the slave of his heir, who afterwards manumits that slave, it is the opinion of Julian that the heir is answerable ; nor is it at all material whether he did or did not know of the legacy. And also if the heir hath made a present of a slave bequeathed, and the donee hath manumitted him, the heir is liable to an action, although he was ignorant of the bequest. § 17. If a testator gives by legacy his female slaves and their offspring, although the slaves die, yet their issue will become due to the legatary : and the same obtains if ordinary slaves are bequeathed together with vicarial; for although the ordinary slaves die, yet the vacarial slaves wUl pass by virtue of the bequest. But if a slave is bequeathed with his pecuUum, and afterwards dies, or is manumitted, or aliened, the legacy of the peculiiim becomes extinct. And the consequences will be the same, if a piece of groTmd is bequeathed with the instruments for improving it ; for if the testator aliens the ground, the legacy of the instruments of husbandry is of course extinguished. § 18. If a flock is bequeathed, and afterwards reduced to a single sheep, that sheep is claimable ; and if a flock receives an JUSTINIAN — BOOK II. 463 increase or addition after it hatli been disposed of by testament, the increase or addition will also, according to Julian, become due to tbe legatary. For a flock is deemed one body, consisting of separate members, as a bouse is reckoned one body, composed of materials joined togetber and adhering. § 19. And lastly, when a house is bequeathed, the marble or pillars which are added after the bequest is made will pass under the general legacy. § 20. When thepeculium of a slave is bequeathed, it is certain that the increase or decrease of it, in the life of the testator, becomes the loss or gain of the legatary. And if ihepeculium of a slave is left to him, together with his liberty, and such slave makes an acquisition to the peculium subsequent to the death of the testator, and before the inheritance is entered upon, it is the opinion of Julian, that whatever is acquired within that period will pass to him as the legatary ; for such a legacy does not become due but from the day of the acceptance of the inheritance. But it is the opinion of the same Julian that if the peculium of a slave is bequeathed to a stranger, an increase acquired within the period above mentioned will not pass under the legacy, unless the acquisition was made by means of something apper- taining to the peculium ; for the peculium of a slave does not belong to him after he is manumitted by testament, unless it is expressly given ; although, if a master in his lifetime manumits his slave, his peculium will pass to him of course, if not excepted: and thus the Emperors Severus and Antoninus have decreed by their rescript. And the same emperors have also declared, that when a, peculium is bequeathed to a slave, it does not seem to be the intention of the testator that such slave should have the power of demanding what he may have expended for the use of his master. And the same princes have further declared that a slave seems to be entitled to Uspeculium^ i£ his liberty is left him on condition that he will bring in his accounts, and supply any deficiency out of the profits of his peculium. § 21. Things incorporeal may be bequeathed as well as things corporeal ; and therefore a debt due to the testator may be left as a legacy, and the heir be obliged to transfer his right of action to the legatary, unless the testator in his lifetime received 464 OUTLINE OF ROMAN HISTORY. the money due to him ; for in this case the legacy would become extinct. A legacy is also good if conceived in the terms fol- lowing : — " I command my heir to rebuild the house of Titius ;" or " to free him from his debts." § 22. If a testator bequeaths a slave, or any particular thing generally, the power of election is in the legatary, unless the testator hath declared otherwise. § 23. The legacy of an option is made when a testator com- mands his legatary to choose any slave whom he likes from among his slaves, or any one thing which he best approves of from any certain class of things ; ajid such a legacy was for- merly presumed to imply this condition, that if the legatee in his lifetime did not make his election, the legacy could not be transmitted to his heir. But by virtue of our constitution this presumed condition is now taken away, and the heir of the legatary is permitted to make his option, although the legatary in his lifetime hath neglected to do it. And, upon a more diligent inspection, we have further added to our constitution, that if there were several legataries to whom an option is left, and they differ in their choice, or if there are many heirs of one legatary who are of divers sentiments, then Fortune must be the judge ; for lest the loss of the legacy should ensue — which loss the generality of the ancient lawyers, contrary to all benevolence, would have permitted — ^we have decreed that such dissensions between heirs or legataries should be decided by lot ; so that the option of him to whom the lot falls shall be preferred. § 24. A legacy cannot be left but to those who have the capacity of taking by testament. § 26. It was not formerly permitted that either legacies or gifts in trust should be bequeathed to uncertain persons ; for even a soldier was prohibited to bequeath to uncertain persons, as the Emperor Adrian hath declared by his rescript ; and an uncertain person is reputed to be one whom the testator hath figured only in his imagination, without any determinate know- ledge of him; as if a testator shoidd thus express himself " Whoever shall give his daughter in marriage to my son, to that person let my heir deliver up such a piece of ground." And if a testator had made a bequest to the first consuls JUSTINIAN — BOOK 11. 465 designed after his testament was written, this also would have been esteemed, a hequest to uncertain persons ; and of the same kind there are diverse other examples. Freedom likewise could not he conferred upon an uncertain person, for it was necessary that all slaves should be nominally enfranchised ; but a legacy might have been given to an uncertain person under a certain demonstration, or, in other words, to an uncertain person, if he was one of a number of persons certain ; as, for instance, if a testator should bequeath in the manner following : — " I com- mand Titius my heir to give such, a particular thing to any one of my present collateral relations, who shall think proper to take my daughter in marriage." But if a legacy or fiduciary gift had been paid to uncertain persons by mistake, it was pro- vided by the constitutions that such persons were not compeUable to refund. § 26. Formerly a legacy could not have been profitably or legally given to a posthumous stranger; and a posthumous stranger is he who, if he had been born before the death of the testator, could not have been numbered among his proper heirs ; and, of consequence, a posthumous grandson, by an emancipated son, was a posthumous stranger in regard to his grandfather. § 27. Such was the state of the ancient law, which hath not been left without a proper emendation ; for we have promulged a constitution, by which we have altered the law concerning un- certain persons not only in respect to inheritances, but in regard also to legacies and fiduciary bequests. But this alteration wiU evidently appear from a perusal of the constitution itself ; which nevertheless gives no authority to the nomination of an un- certain tutor ; for it is incumbent upon every parent to take care of his posterity in this respect by a certain and determinate appointment. § 28. A posthumous stranger could formerly have been insti- tuted, and may now be appointed, an heir, unless it appears that he was conceived by a woman who could not have been legally married to his father. § 29. iLLthough a testator may happen to have mistaken the nomen, cognomen, prsenomen, or agnomen of a legatary, yet if his person is certain the legacy is good. The same rule of law N. H H 466 OUTLINE OF KOMAN HISTORY. is also observed in regard to heirs, and with great reason ; for the use of names is but to point out persons ; and if persons can be denoted by any other method, it will make no diSerence. § 30. The rule of law which comes nearest to the foregoing is that a legacy is not rendered null by a false demonstration : suppose, for instance, that a bequest is thus worded — " I give and bequeath Stichus my slave, who was bom in my family ; " in this case, although Stichus was not bom in the family of the testator, but bought, yet if there is a certainty of his person, the legacy is valid. And if a testator should write as follows : " I bequeath Stichus my slave, whom I bought of Seius ; " yet, although he was bought of another, the legacy would be good, if there was no doubt as to the identity of the person of Stichus. § 31 . ^ fortiori a legacy is not rendered the less valid, although a false reason is assigned for bequeathing it : as if a testator should thus express himself : " I give my slave Stichus to Titius, because he took care of my affairs ia my absence ;" or, " because I was acquitted upon an accusation of a capital offence by his care and protection." For although Titius had never taken care of the affairs of the deceased, and although the testator was never acquitted from any charge of a capital crime by means of Titius, the legacy wiU. nevertheless be good. But if the bequest had been declared to be conditional; as, for ex- ample, if the testator had expressed himself as follows — " I give to Titius such a piece of ground, if it shall appear that he hath taken a proper care of my affairs ; " then the law would be different. § 32. It hath beeu a question, whether a testator can legally give a legacy to the slave of his heir ; and it is certain, that a legacy purely and simply given to such a slave can avail him nothing, although he should afterwards be freed from the power of the heir in the lifetime of the testator ; for a bequest, which would have been null if the testator had expired immediately after he had made it, ought not to become valid merely because the testator happened to enjoy a longer life. But a testator may give a conditional legacy to the slave of his instituted heir, and such legacy will be good, if the slave is not under the power of the heir when the condition is fulfilled. JUSTINIAN BOOK II. 467 : § 33. On the contrary, it is not doubted but tbat a slave may be appointed an heir, and that his then master may take even a simple legacy by the same testament : for although the testator should die instantly after making his testament, yet the legacy is not understood to become immediately due from the slave, who is the heir ; for the inheritance is here separate from the legacy, and another may become heir by means of the slave, if he should be transferred to a new master, before he hath entered upon the inheritance at the command of his master, who is the legatary; or the slave himself may become heir in his own right by manumission ; and in these cases the legacy would be good. But if the slave should remain in the same state, ^nd enter upon the inheritance by order of his master, who is the legatary, the legacy would, as such, become extinct. § 34. A legacy could not formerly have been given with efEect till the heir was instituted, because a testament receives its whole force and efiBcacy from the institution of the heir, which is understood to be the basis and foundation of it : and, by a parity of reasoning, it was also necessary that the institu- tion of an heir should always precede the grant of freedom in a testament. But we have thought.it to be wrong and absurd that a strict regard should be paid to the mere order of writing, in direct opposition to the express intention of a testator ; and the ancients themselves seem to have been of this opinion in general : we have therefore, by virtue of our constitution, amended the law in this point, so that a legacy may now be given, and, d fortiori, a grant of liberty, which is always favoured, may be bequeathed, before the institution of an heir, where there is but one ; and either before or between the insti- tutions of heirs, where there are several. § 35. A bequest made to take place after the death of an heir or legatary was also ineffectual : for if a testator had written, ".When my heir is dead, I give and bequeath a hundred aurei to Titius;" or -even thus, "I give and bequeath a hundred mrei to be paid on the day preceding the day of the death of my heir ;" or, " on the day preceding the day of the death qf my legatary ; " the legacies in any of these cases would have been void. But we have corrected the ancient rule of law in this hh2 468 OUTLINE OF KOMAN HISTOKY. respect by giving all such legacies j JUSTINIAN — BOOK 111. 495 the above-mentioned senatuscmisulta and our constitution have numbered with the agnati — the praetor calls the nearest cognates, observing the proximity of relation. § 1. By the law of the Twelve Tables, neither the agnates who have suffered diminution, nor their issue, are esteemed legitime heirs ; but they are called by the praetor ia the third order of succession : we must nevertheless except a brother and sister, although they are emancipated, but not their children ; for the constitution of Anastasius calls an emanpipated brother or sister to the succession of a brother or sister, together with those who have not been emancipated, and are therefore integri juris ; but it does not call them to an equal share of the suc- cession, as may easily be collected from the very words of the constitution. But this constitution prefers an emancipated brother or sister to other agnates of an inferior degree, although unemancipated ; and consequently to all cognates in general. § 2, Those also who are collaterally related by the female line are called by the prsetor in the third order of succession according to their proximity. § 3. Children who are in an adoptive family are likewise called in the third order of succession to the iaheritance of their natural parents. § 4. It is manifest that basebom children have no agnates, inasmuch as agnation proceeds from the father, cognation from the mother ; and such children are looked upon as having no father. And, for the same reason, consanguinity cannot be said to subsist between the bastard children of the same woman, because consanguinity is a species of agnation. They can there- fore only be allied to each 'other, as they are related to their mother, that is, by cognation ; and it is for this reason that all such children are called to the possession of goods by that part of the prsetorian edict by which cognates are called by the right of their proximity. § 5. In .this place it will be necessary to observe that any person may by the right of agnation be admitted to inherit, although he is in the tenth degree ; and this is allowed both by the law of the Twelve Tables, and the edict, by which the preetor promises that he will give the possession of goods to the legitime 496 OUTLINE OF BOMAN HISTORY. teirs. But the prsetor promises tlie possession of goods- to cognates only as far as the sixth, degree of cognation, according to their right of proximity ; and in the seventh degree to those cognates only who are the descendants of a cousin-german. Tit. VI. Be gradiius eoffnationum. It is necessary in this place to show how the degrees of cognation are to be computed : and first we must observe that there is one species of cognation which relates to ascendants, another to descendants, and a third to collaterals. The first and superior cognation is that relation which a man bears to his parents ; the second or inferior is that which he bears to his children ; and the third is .that relation which he bears to his brothers and sisters and their issue, and also to his uncles and aunts, whether paternal or maternal. The superior and inferior cognation commence at the first degree ; but the transverse or collateral cognation commences at the second. § 1. A father or a mother is in the first degree in the right line ascending; and a son or a daughter is also in the first degree in the right line descending. A grandfather or a grand- mother is in the second degree in the right line ascending; and a grandson or a granddaughter is in the second degree in the right line descending : and a brother or a sister is also in the second degree in the collateral line. A great-grandfather or a great-grandmother is in the third degree in the right line ascending ; and a great-grandson or great-granddaughter is in the third degree in the right line descending : and the son or daughter of a brother or sister is also in the third degree ia the collateral line ; and, by a parity of reasoning, an uncle or an aunt, whether paternal or maternal, is also in the third degree. A paternal uncle, oaH&dL patruus, is a father's brother; a maternal uncle, called avunculus, is a mother's brother ; a paternal aunt, called amita,, is a father's sister ; and a maternal aunt, called matertera, is a mother's sister : and each of these persons is called in Greek fleior or Ssia promiscuously. § 2. A great-great-grandfather or a great-great-grandmother is in the fourth degree in the right line ascending ; and a great- JUSTINIAN— BOOK III. ' 497 great-grandson or a great-great-granddaughter is in the fourth degree in the right line descending. Also in the transverse or .collateral line the grandson or the granddaughter of a hrother or a sister is in the fourth degree ; and consequently a great- uncle or great-aunt, paternal or maternal, is in the fourth degree; and also cousins-german, who are called consobrini. But some have been rightly of opinion that the children of sisters are only properly called consobrini, quasi consororini; that the chil- dren of brothers are properly called fratres patrueks, or brothers patniel, if males, and sorores patrueles, or sisiers patrnel, if females ; and that when there are children of a brother and children of a sister, they are properly called amitini; but the sons of your aunt by the father's side call you consobrinus, and you call them amitini. § 3. A great-grandfather's grandfather or a great-grand- father's grandmother is in the fifth degree in the line ascendingj and a great-grandson or a great-granddaughter of a grandson or a granddaughter is the fifth degree in the line descending. And, in the transverse or collateral line, a great-grandson or great- granddaughter of a brother or sister is also in the fifth degree, and consequently a great-grandfather's brother or sister, or a great-grandmother's brother or sister, is in the fifth degree. The son or daughter also of a cousin-german is in the fifth degree ; and so is the son or daughter of a great-uncle or great- aunt, paternal or maternal ; and such son or daughter is called pwpior sobrino and propior sobrina. § 4. A great-grandfather's great-grandfather or a great- grandfather's great-grandmother is in the sixth degree in the line ascending, and the great-grandson or great-granddaughter of a great-grandson or a great-granddaughter is likewise in the sixth degree in the line descending. And, in the transverse or collateral line, a great-great-grandson or a great-great-grand- daughter of a brother or sister is also in the sixth degree ; and consequently a great-great-grandfather's brother or sister, and a great-great-grandmother's brother or sister, is in the sixth degree; And the son or daughter of a great-great-unole or great-great- aunt, paternal or matemalj is also in the sixth degree; and so also is the son or daughter of a son or daughter of a great- N. KK OUTLINE or ROMAN HISTOBY. uncle or great-aunt, paternal or maternal. The grandson also or the granddaughter of a cousin-german is in the sixth degree ; and in the same degrees between themselves we reckon the sohrini and the sohrinm; that is, the sons and daughters of cousins-german in general, whether such cousins-german are so related by two brothers, or , by two sisters, or by a brother and a sister. § 5. It is suiEcient to have showed thus far how the degrees of cognation are enumerated, and from the examples given it is evident in what manner we ought to compute the more remote degrees; for every person generated always adds one degree; so that it is much easier to determine in what degree any person is related to another than to denote such person by a proper term of cognation. § 6. The degrees of agnation are enumerated in the same manner as the degrees of cognation. § 7. But as truth is fixed in the miad much better by the eye ■ than by the ear, we have therefore thought it necessary to sub- join to the account already given a tablet with the degrees of cognation inscribed upon it ; that the student, both by hearing and seeing, may attain a most perfect knowledge of them. ( Vide end of book.) Tit. Vii. Be servili cognatimie. It is certain that the part of the edict in which the possession of goods is promised, according to the right of proximity, does not relate to servile cognation, neither hath such cognation been regarded by any ancient law. But by our own constitution concerning the right of patronage, which right was heretofore obscure and every way confused, we have ordained — humanity so suggesting^that if a slave shall have a child, or children, either by a freewoman or by a bondwoman, with whom he lives in contubernio, and on the contrary, that if a bondwoman shall have a child or children of either sex by a freeman, or by a slave with whom she lives in contubernio, and such father and mother are afterwards enfranchised, the children shall succeed to their : father or mother, no regard beiag paid to the right of patronage. JUSTINIAN— BOOK III, , 499 And we have not only called these children to the succession of their parents, but also to succeed each other mutually, whether they are sole in succession, having aU heen born in servitude and afterwards manumitted, or whether they succeed with others who were conceived after the enfranchisement of their parents, and whether they are aU. by the same father and mother, or by a different father or a different mother. And, in brief, we have been willing that children born in slavery, and afterwards manu- mitted, should succeed in the same manner as those who are the issue of parents legally married. § 1. By what we have already said it appears, that those who are in an equal degree of cognation, are not always called equally to the succession ; and further, that even he who is the nearest of kin is not constantly to be preferred. For, inasmuch as the first place is given to proper heirs, and to those who are numbered with proper heirs, it is apparent that the great- grandson or great-great-grandson is preferred to the brother, or even the father or mother, of the deceased ; although a father and mother — as we have before observed — obtain the first degree of relation, a brother the second, a great-grandson the third, and a great-great-grandson the fourth : neither does it make any difference whether such grandchildren were under the power of the deceased at the time of his death, or out of his power, either by being emancipated, or by being the children of those who were emancipated; neither can it be objected that they are descended by the female Hne. But when there are no proper heirs, nor any of > those who are permitted to rank with them, then an agnate, who hath the full right of agnation in him, although he is in the most distant degree, is generally preferred to a cognate, who is in the nearest degree ; thus the grandson or great-grandson of a paternal uncle is preferred to an uncle or aunt who is maternal. We therefore observe, that when there are no proper heirs, nor any who are numbered with them, nor any who ought to be preferred by the right of agnation — as we have before noted — then he who is in the nearest degree of cognation is called to the succession ; and that if there are many in the same degree, they are all called equally. But a brother and sister, although emancipated, are yet called to the succession. kk2 500 OUTLINE OF ROMAX HISTORY. of brotliers and sisters ; for although they have suffered dimi- nution, they are nevertheless preferred to aU agnates of a more remote degree. Tit. VIII. Be suceessione libertorum. Let us now treat of the succession of freedmen. A freedman had it formerly in his power, without being subject to any penalty, wholly to omit in his testament any mention of his patron : for the law of the Twelve Tables called the patron to the inheritance only when the freedman died intestate, and without proper heirs; and therefore, though a freedman had died intestate, yet, if he had left a proper heir, the patron would have received no benefit; and indeed, when the natural and legitimate children of the deceased became his heirs, there seemed no cause of complaint ; but when the freedman left only an adopted son, it was manifestly injurious that the patron should have no claim. § 1. The law was therefore afterwards amended by the edict of the praetor ; for every freedman who made his testament was commanded so to dispose of his effects as to leave a moiety to his patron; or if the testator left nothing, or less than a moiety, then the possession of half was given to the patron contra tabulas, i. e., contrary to the disposition of the testament. And if a freedman died intestate, leaving an adopted son his heir, the possession of a moiety of the effects was in this case also given to the patron, notwithstanding such heir ; yet not Only the natural and lawful children of a freedman, whom he had under his power at the time of his death, excluded the patron, but those children also who were emancipated, and given in adoption, if they were written heirs for any part, or even although they were omitted, if they had requested the possession contra tabulas by virtue of the prsetorian edict. But disinherited children by no means repelled the patron. § 2. But afterwards the rights of those patrons who had wealthy freedmen were enlarged by the Papian law, by which it is provided, that an equal share shall be due to the patron out of the effects of his freedman, whether dying testate or intestate. JUSTINIAN^-BOOK III. • 501 ■who hath, left a patrimony of a hundred thousand sestertii, and fewer than three children ; so that when a freedman hath left only one son or daughter, then a moiety of the effects is due to the patron, as if the deceased had died testate without either son or daughter. But when there are two heirs, male or female, a third part only is due to the patron ; and when there are three, the patron is wholly excluded. § 3. But by our imperial constitution — which we have caused to he promulged in the Greek language for the benefit of all nations — we have ordained that if a freedman or freedwoman dies possessed of less than a hundred aurei — for thus have we interpreted the sum mentioned in the Papian law, counting one aureus for a thousand sestertii — the ^patron shall not be en- titled to any share in the succession where there is a will. But if either a freedman or a freedwoman dies intestate and without children, we have in this case reserved the right of patronage entire, as it formerly was, according to the law of the Twelve Tables. But if a freed person dies worth more than a hundred aurei, and leaves one child, or many, of either sex or any degree, as the heirs and possessors of his goods, we have permitted that such child or children shall succeed their parent to the entire exclusion of the patron and his heirs : and if any freed persons die without children and intestate, we have called their patrons or patronesses to their whole inheritances. And if any freed person worth more than a hundred aicrei hath made a testa- ment, omitted his patron, and left no children, or hath disinherited them; or if a mother or maternal grandfather, being freed persons, have omitted to mention their children in their wills, so that such wUls cannot be proved to be inofficious, then, by virtue of our constitution, the patron shall succeed not to a moiety as formerly, but to the third part of the estate of the deceased, by the possession of the goods called contra tabulas : and when freed persons, men or women, leave less than the third part of their effects to their patrons, our constitution ordains, that the deficiency shall be supplied ; and that this third part due to patrons shall not be subject to the burden of trusts or legacies> even for the benefit of the children of the deceased ; for 503 OUTLINE OF KOMAN HISTORY. the coiieirs only of the patron shaU he loaded with this burden. In the before-mentioned constitution we have collected many more cases, which we have thought necessary in relation to the right of patronage, that patrons and patronesses, their children, and collateral relations, as far as the fifth degree, might be called to the succession of their freedmen and freedwomen, as will appear more fully from our ordinance itself. And if there are many children of one patron or patroness, or of two or more patrons or patronesses, he who is nearest in degree is called to the succession of his freedtnan or freedwoman ; and. when there are many in equal degree, the estate must be divided in capita and not in stirpes ; and the same order is decreed to be observed among the collaterals of patrons and patronesses ; for we have rendered the laws of succession almost the same in regard to the ingenui and lihertini. § 4. But what we have said relates to the libertini of the present time, who are all citizens of Eome ; for there is now no other species of freedmen, that of the dedititii and Latini being abolished ; the latter of whom never enjoyed any right of succession ; for although they led the lives of freedmen, yet with their last breath they lost both their lives and liberties : for their posses- sions, like the goods of slaves, were detained by their manu- mitter, who possessed them as a peculium by virtue of the law Junia Norhana. It was afterwards provided by the senatus- consultumLargianum that the children of a manumitter, who were not nominally disinherited, should be preferred to any strangers whom a manumitter might constitute his heirs. Then foRowed the edict of Trajan, which ordained that if a slave, either against the will or without the knowledge of his patron, should obtain the freedom of Eome by the favour of the emperor, such slave should continue free whilst living, but at his death should be regarded only as a Latin. But we, being averse to these changes of condition and dissatisfied with the difficulties attending them, have thought proper, by virtue of our constitution, for ever to abolish, together with the Latins, the law Junia, the senatus- consultum Largianmn, and the edict of Trajan, to the intent that all freedmen may become freedmen of Rome. And we have JUSTINIAN BOOK 111. 503 ■happily contrived by some additions that the manner of con- ferring the freedom of Latins should now become the manner of conferring the freedom of Eome. Tit. IX. De assignatione libertorum. In regard to the possession of freedmen, it must be remem- bered that the senate hath decreed that although the goods of freedmen belong equally to all the children of the patron who are in the same degree, yet it is lawful for a parent to assign a freedman to any one of his children, so that after the death of the parent the child, to whom the freedman was assigned, is solely to be esteemed his patron ; and the other children, who would have been equally admitted to a dividend of the goods of the freedman had he not been assigned, are wholly excluded ; but if the assignee happens to die without issue the excluded children regain their former right. ' § 1. Every freed person is assignable, whether man or woman ; and an assignment may be made not only to a son or grandson, but to a daughter or granddaughter. § 2. The power of assigning freed persons is given to him who hath two or more children unemancipated, so that a father may assign a freedman or freed woman to those children whom he retains under his power ; and hence it became a question if a father should assign a freedman to his son, and afterwards emancipate that son, whether the a,ssignment would or would not be null? and the decision hath been in the afiirmative; which hath been approved of by Julian and many others. § 3. But it makes no difference whether the assignment of a freedman is made by testament or not by testament; for patrons may assign even by word of mouth; which was permitted by the senatuscomultum made in the reign of Claudian, in the consulate of Sabellius Eufus and Asterius Scapula. Tit. X. Be bonorum possessionibus. The right of succeeding by the possession of goods was intro- duced by the praetor in amendment of the ancient law, which 504 OUTLINE OF ROMAN HISTOKY. he corrected, not only in regard to the inheritances of intes- tates—as we have before ohserved— but in regard also to the inheritances of those -who die testate; for if a posthumous stranger was instituted an heir, although he could not enter upon the inheritance by the ci-vil law, inasmuch as his institution as heir would not be valid, yet by the praetorian or honorary- law he might be made the possessor of the goods when he had received the assistance of the praetor. But such stranger may at this time, by virtue of our constitution, be legally instituted an heir, being no longer regarded as a person unknown to the civil law. But the praetor sometimes bestows the possession of goods, intending neither to amend nor impugn the old law, but only to confirm it; for he gives the possession of goods secundum talulas to those who are appointed the heirs of the deceased by a regular testament. He also calls proper heirs and agnates to the possession of the goods of intestates ; and yet the inherit- ance would be their own by the civil law, although the praetor did not interpose his authority. But those whom the praetor calls to an inheritance merely by virtue of his office dp not become legal heirs, inasmuch as the praetor cannot make an heir ; for heirs are made only by a lex, or what has the effect of a lex,a& a decree of the senate, or an imperial constitution. But when the praetor gives any persons the possession of goods, they stand ia the place of heirs, and are called the possessors of the goods. But the praetor hath also devised many other orders of persons to whom the possession of goods can be granted, to the intent that no man may die without a successor ; and by the rules of justice and equity, he hath greatly enlarged the righb of ■ taking inheritances, which was bounded within the most narrow limits by the laws of the Twelve Tables. § 1. The kinds or species of the possessions of goods or praeto- rian successions, when there is a testament, are the following. The first is that possession which is given to children of whom no mention is made in the testament, and this is called ^ossessw contra tabulas, i. e., a possession contrary to the testament. The second is that which the praetor promises to all written heirs, and it is therefore called secundum tabulas, i. e., a posses- sion according to the testament. These being fixed, the preetor JUSTINIAN BOOK III. 505 proceeded to the possession of goods in regard to intestates: and first he gives the possession of goods called unde Kberi to the proper heirs, or to those who by the praetorian edict are num- bered among the proper heirs : secondly, to the legitime heirs : thirdly, to ten persons, in preference to a stranger, who was the manumitter, viz., to a father, a mother, or a grandfather or grandtaother, paternal or maternal ; to a son, a daughter, or to a grandson or granddaughter, as well by a daughter as by a son ; to a brother or sister, either consanguine or uterine : fourthly, to the nearest cognates : fifthly, to those who are, as it were, of the family, tanquam ex familia : sixthly, to the patron or patroness, and to their children, and their parents : seventhly, to a husband and wife : eighthly, to the cognates of a manu- mitter or patron. § 2. The praetor's authority hath introduced these successions ; but we, not suffering any useless institution to continue in the law, have nevertheless admitted by our constitutions the posses^ sion of goods contra tahulas and secundum tahulas as necessary, and also the possession of goods ab infestato, called unde liberi and unde legitimi : but we have briefiy showed that the possession called unde decern jjersonce, which was ranked by the praetor's, edict in the fifth order, was imnecessary : for, whereas that pos- session preferred ten kinds of persons to a stranger, who was the manumitter at emancipation, our constitution, which regards emancipation, hath permitted all parents to manumit their chil-. dren, a fiduciary contract being presumed ; so that the possession " unde decern personm is now useless. The afore-mentioned fifth possession being thus abrogated, we have now made that the fifth which was formerly the sixth, by which the praetor gives the succession to the nearest cognates. And whereas formerly the possession of goods called tanquam ex famalia was in the seventh place, and the possession of goods called unde patroni pafronceque, liberi et parentes eorum, was in the eighth, we have now annulled them both by our ordinance concerning the right of patronage. And having brought the successions of the libertini to a similitude with those of the ingenui, — except that we have limited the former to the fifth degree, so that there may still remain some difference between them, — we think, that the 506 OUTLINE OF ROMAN HISTORY. possessions contra tabulas, unde legitmi, and unde cognati, may suffice, by wMcli all persons may vindicate tlieir rights, the nice- ties and inextricaWe eirors of those two kinds of possessions, tanquam exfamiM and unde patroni heing removed. The other possession of goods called mr et uxor, which held the ninth place among the ancient possessions, we .have preserved in fuU force, and have placed in a higher degree, namely, the sixth. The tenth of the ancient possessions, called unde 'cognati mammissoris, being deservedly abrogated for causes already enumerated, there now remain only in force six ordinary possessions of goods. § 3. But to these a seventh possession hath been added, "which the praetors have introduced with the greatest reason : for by edict this possession of goods is promised to all those to whom it is appointed to be given by any law, senatusconsultum, or con- stitution : and the praetor hath not positively numbered this possession of goods either with the possessions of the goods of intestate or testate persons, but hath given it, according to the exigence of the case, as the last and extraordinary resource of those who are called to the successions of testates or intestates, by any particular law, any decree of the senate, or any new constitution. § 4. The praetor, having introduced many kinds of successions, and ranked them in order, hath thought proper, inasmuch as many persons of different degrees are often found in one species of succession, to limit, a certain time for demanding the posses- sion of goods, to the intent that the actions of creditors may not be delayed for want of a proper person against whom to bring them, and that the creditors themselves may not obtain the pos- session of the effects of the deceased too easily, and so consult solely their own advantage : therefore to parents and, children, whether natural or adopted, the praetor hath given the space of one year, in which they may either accept or refuse the posses- sion of goods. But to all other persons, agnates or cognates, he allows only a hundred days. § 5. And if any person entitled does not claim the possession of goods within the time limited, his right of possession accrues first to those in the same degree with himself ; and in default of persons in the same degree, then the praetor by the sucoessory JUSTINIAN— BOOK III. 507 edict bestows the possession of goods upon those in the next degree, as if he who preceded had no right. And if any man refuses the possession of goods when it is open to him, there is no necessity to wait till the time limited is expired, hut those who are the next in succession may be instantly admitted by virtue of the before-mentioned edict. § 6. It is here to be observed, that, in regard to the time pre- scribed for demanding the possession of goods, we coimt all the days which are utiles. § 7. The emperors our predecessors have wisely provided in this case, that no person need be solicitous to demand the posses- sion of goods in solemn form : for if by any act it manifestly appears that a man has in any manner consented to accept the prsetorian succession within the prescribed time, he shall enjoy the full benefit of it. Tit. XI. Be acquisitione per arrogationem. There is also an universal succession of another kind, which was introduced neither by the laws of the Twelve Tables, nor by the edict of the prsetor, but by that law which takes its rise from general consent and usage. § 1. For example, if the father of a family gave himself in arrogation, all things which appertained to him, whether cor- poreal or incorporeal, and whatever was due to him, became anciently the property of the arrogator; those things only excepted which perished by diminution or change of state, as the duties of freedmen to their patrons and the rights of agnation. But although use and usufruct were heretofore numbered among those rights which perished by diminution, yet our constitution , hath prohibited, that the use and usufruct of things should be taken away by the least diminution or change of state. § 2. But we have now limited the acquisitions obtained by arrogation, in similitude of what is gained by natural parents : for nothing is now acquired either by natura,! or adoptive parents but the bare usufruct of those things which their children possess adventitiously and extrinsically ia their own right, the property still remaining entire in the adopted or natural child. But if an 508 OUTLINE OF ROMAN HISTOKY. arrogated son dies under the power of his arrogator, then even, the property of the effects of such son will pass to the arrogator in default of those persons, whom we have by our constitution preferred to the father in the succession of those things which could not be acquired for him. § 3. On the contrary, an arrogator is not bound at law to satisfy the debts of his adopted son in consequence of a direct action ; but yet he may be convened in his son's name ; and if he refuses to defend his son, then the creditors, by order of the proper magistrates, may seize upon and legally sell all those goods, of which the usufruct, as well as the property, would both have been in the debtor, if he had not made himself subject to the power of another. Tit. XII. De eo, cui libertatis causa bona addicuntur. A. new species of succession hath taken its rise from the consti- tution of Marcus Aurelius. For if those slaves, to whom freedom hath been bequeathed, are desirous, for the sake of obtaining it, that the inheritance, which hath not been accepted by the written heir, should be adjudged for their benefit, they shall obtain their request. § 1. And to the same effect is the rescript of the Emperor Marcus to Pompilius Euf us ; the words of which are these : " If the estate of Virginius Yalens, who by testament hath be- queathed to certain persons their freedom, must necessarily be sold, and there is no successor ab intestato, then the magistrate who has the cognizance of these affairs shall upon application hear the merits of your cause, that, for the sake of preserving the liberty of those to whom it was given, either directly or in trust, the estate of the deceased may be adjudged to you, on condition that you give good security to the creditors to pay them the whole of their just demands. And aU those to whom freedom was directly given shall then become free, as if the inheritance had been entered upon by the written heir ; but those whom the heir was ordered to manumit shall obtain their free- dom from you only. And if you are not willing that the goods of the deceased should be adjudged to you on any other con- JXJSTIKIAN BOOK III. ' 509 'dition than that even they who received their liherly directly by testament shall also become your freedmen, we then order that your will shall be complied with, if the persons agree to it who are to receive their freedom. And, lest the use and emolu- ment of this our rescript should be frustrated by any other means, be it known to the oJBScers of our revenue, that when*- ever our exchequer lays claim to the estate of a deceased person, the cause of liberty is to be preferred to any pecuniary advan- tage ; and that the estate shall be so seized as to preserve the freedom of those who could otherwise have obtained it; and this in as full a manner as if the inheritance had been entered upon by the testamentary heir." § 2. The contents of this rescript are calculated not only in favour of liberty, but also for the benefit of deceased persons, lest their effects should be seized and sold by their creditors ; for it is certain that when goods are adjudged to a particular man for the preservation of liberty, a sale by creditors can never take effect : for he to whom the goods are adjudged is the protector of the deceased, and must always be a person who can give security for the full payment of creditors. § 3. This rescript takes place whenever freedom is conferred by testament. But when a master dies intestate, having bequeathed freedom to his slaves by codicil, and his inheritance is not entered upon, what will then be the consequence ? We answer, that the favour of the rescript shall extend to this case ; but it is most certainly not to be doubted that, if a master dies testate, and by codicil bequeaths freedom, the rescript shall be of full force. § 4. The words oi the rescript show that it is then in force when there is absolutely no successor ah intestato. It therefore follows that as long as it remains doubtful whether there is or is not a successor, the constitution shall not take place ; but when once it is certain that no one will enter upon the succession, the ordinance shall then have its effect. § 6. But if he who has a right to be restored in integrum— &?, a minor for example— should delay to take upon him the in- heritance of his father, it may then be asked whether, notwith- standing this right of being restored, the constitution shall take 510 OUTLINE OF EOMAN HISTOEY. place, and an adjudication of the goods pass to a stranger, or one of the slaves ? And, again, it may be demanded what will he the consequence, if, after an adjudication has been made for the sake of liberty, the heir should be restored in integrum ? "We answer that freedom, when once obtained, shall not after- wards be revoked. § 6. This constitution was made for the protection of liberty ; and therefore, when freedom is not given, the constitution has no effect. Suppose, then, that a master hath given freedom to his slaves, either inter vivos or mortis eausd, and that they, to pre- vent the creditors from complaining that this was done to defraud them, should petition that the estate of the deceased may be adjudged to them. Are these persons to be heard ? "We answer, that we incline to grant their request, although in this case the letter of the constitution is deficient. § 7. But perceiving that the rescript was deficient in many respects, we enacted a most express constitution containing many cases which explain the rights of succession in the fullest man- ner, of which every person who reads that condition will be sensible. Tit. XIII. De successionibus sublatis quce fiehant per bonorum venditiones, et ex senatusconsuUo Claudiano. There were many other kinds of universal successions before that which we treated of in the foregoing title ; as the bonorum emptio, which was first introduced that the estates of debtors might be sold; but this was 'accompanied by many intricate and tedious proceedings. It contiaued, nevertheless, as long as the ordinary judgments were in practice ; but as soon as the- extraordinary judgments were made use of, the solemn emptio bonorum ceased at the same time with the ordinary judgments. And creditors can now possess themselves of the goods of their debtors, and dispose of them as they think most proper, by tl^e, decree of a judge. But these points are treated of more per- fectly and at large in the books of our digests. There was also, by virtue of the Olaudian decree, another universal acquisition, called miserabilis; for example, if a freewoman had debased; JUSTINIAN — BOOK 111. 511 herself' by being enamoured of a slave she lost her freedom by the before-named decree, and, together with her freedom, her estate and substance. But it being our opinion that this part of the decree was unworthy of our reign, and ought therefore to be expimged from our laws, we have not permitted it to be inserted in the digests. Tit. XIV. De obligationibus. Let us now pass to obligations. An obligation is the chain of the law, by which we are necessarily bound to make some pay- ment, according to the laws of our country. § 1. Obligations are primarily divided into two kinds, civil and prsetorian. Civil obligations are those which are constituted by the laws, or by any species of the civil law. Prsetorian obligations are those which the prsetor hath appointed by his authority ; and these are also called honorary. § 2. The second or subsequent division of obligations contains four species : for some obligations arise by contract, others by quasi-contract ; some by malfeasance, and others by quasi- malfeasance. We must first treat of those obligations which arise from a contract ; and of these there are also four kinds : for obligations are contracted by the thing itself, by word of mouth, by writing, or by the mere consent of parties. Let us now take a separate view of each of these methods of contracting. Tit. XV. Quibus modis re contrahitur obligatio. An obligation is contracted by the thing itself, that is, by the delivery of it, as a loan or mutuum : and any particular thing which consists of weight, number, or measure, as wine, oil, com, coin, brass, silver, gold, may be delivered as a mutuum; and these substances, when so delivered, become in specie the absolute property of the receiver : and since the very identical things lent cannot be restored, but others of the same nature and quality must be paid in lieu of them, this loan is therefore called a mutuum; for in this case "I so give, that what is mine may 512 OUTLINE OF ROMAN HISTORY. become yours," ut ex meo tuum fiat. From this contract arises that action which is called certi'condictio. § 1. He also who hath received what was not due to him, it being paid or delivered by mistake, is bound by the thing received, so that an action of condictio lies against him for the recovery of the thing at the suit of him who paid or delivered it erroneously. And this action may be brought against the receiver in these words, '^ Siapparet, eum dare opertere," in the same manner as if he had accepted the thing delivered as a mutuum. And hence it is that a pupU, when a payment of anything not due hath been made to him without the authority of his tutor, is not subject to the action called condictio indebiti, because he is not subject to an action on account of the delivery of the thing, as a mutuum. And yet this species of obligation does not seem to proceed from a contract ; since he who pays with an intention ' to satisfy his debts appears more willing to dissolve than to make a contract. § 2. He also to whom the use of any particular thing is granted or commodated is bound by the delivery of the thing, and is subject to an action called commodataria. But such person widely differs from him who hath received a mutuum; for a commodatum, or thing lent, is not delivered to the intent that it should become the property of the receiver ; and therefore he is, bound to restore the identical thing which he hath received. There is also another difference; for he who hath accepted a mutuum is not freed from his obligation if even by any accident, as by the fall of an edifice, fire, shipwreck, thieves, or the incur- sions of an enemy, he hath lost what he hath received ; but he who hath received a commsdatum, or a thing lent for his use only, is indeed commanded to employ his utmost diligence in keeping and preserving it, — and it will not suffice that he hath taken the same care of it which he was accustomed to take of his own property if it appears that a more diligent man might have preserved it ; — yet if it is evident that the loss of it was occa- sioned by a superior force or some extraordinary accident, and not by any fault, he is then not obliged to make good the loss ; but if a man by choice will travel with what he has received as a commodatum or loan, and should lose it by shipwreck, or, by JUSTINIAN — BOOK III. 513 file incursion oj enemies or robters, It is not to be doubted but that he is bound to make restitution, or to pay an equivalent. A thing is properly said to be lent or commodated when one man permits another to enjoy the use of it, and receives nothing by way of hire ; but if a jprice for hire is paid the thing is let, and not lent, for a commodatum or loan must' be gratuitous. § 3. Any person who is entrusted with a deposit is bound by the delivery of the thing, and is subject to an action of deposit; because he is under an obligation of making restitution of that very thing which he received. But a depositary is only thus answerable on account of fraud ; for where a fault only can be proved against him, such as negligence, he is under no obliga- tion ; and he is therefore secure IE the thing deposited is stolen from him, even although it was carelessly kept. For he who commits his goods to the care of a negligent friend should im- pute the loss of them not to his friend, but to his own facility and want of caution. § 4. A creditor also, who hath received a pledge, is bound by the delivery of it ; for he is obliged to restore the very thing which he hath received, by the action called pigneratitia. But inas- much as a pledge is given for the mutual service of both debtor and creditor — of the debtor that he may obtain the money the more easily, and of the creditor that the repayment may be the better ^ secured — it will sufEce if the creditor shall appear to have used an exact diligence in keeping the thing pledged ; for if such diligence appears to have been used, and the pledge was lost by- mere accident, the law secures the creditor as to the loss of the thing pledged, and he is by no means impeded to sue his debt. Tit. XYI. Be verlorum oiligationibus. An obligation in words is made by question and answer, when we stipulate that anything shall be given or done ; and from hence arise two actions, viz., the action called condictio certi; when the stipulation is certain, and the action called condictio ex stipulatu, when the stipulation is uncertain. This obligation is called a stipulation because whatever was firm was termed sfipulum by the ancients ; the word stipulum being probably' derived from stipes, denoting the trunk of a tree. N. L L 514', OUTLINE OF ROMAN HISTORY. § 1. The following words were probably used in all verbal obligations : — Spondes ? Spondeo. Promittis ? Promitto. Fide-promittis ? Mde-promitto. Fide-jubes? Fide-jubeo. Bahis ? Dabo. Fades ? Faciam. And it is not material whether the stipulation is conceived in Latin, Greet, or any other language, if the stipulating parties understand it : neither is it necessary that the same language should he used by each person, for it is sufficient if a congruent and pertinent answer is made to each question. It is, moreover, certain that two Greeks may contract in Latin. Anciently, indeed, it was necessary to use those solemn words before re- cited, hut the constitution of the Emperor Leo was afterwards enacted, which takes away this verbal solemnity, and requires only the apprehension and consent of each party, expressed in any form of words. § 2. Every stipulation is made to be performed simply, or at a day certain, or conditionally. A stipulation is made to be performed simply, when a man says, " Do you promise to pay me five aiirei?" and in this case the money may be instantly demanded. A stipulation is made to be performed at a day certain, when the day is added on which the money is to be paid, as when a man says, " Do you promise to pay me ten aurei on the 1st of March ?" but note that what we stipulate to pay at a day certain, though it becomes immediately due, yet it cannot be demanded before the day comes ; nor can it even then be sued for ; for the whole day must be allowed for pay- ment, because it can never be certain that there hath been a failure of payment on the day promised until that day is quite expired. § 3. But if a man thus stipulates, viiz., " Do you promise to give me ten aurei annually as long as I live ?" the obligation is understood to be made purely or simply, and becomes per- petual, so as to bind the heirs of the obligor ; for an obligation cannot continue due for a time certain only ; yet if the heir of JUSTINIAN BOOK III. 515 the stipulator demands payment, he shall he barred by an ex- ception of agreement. § 4. A stipulation is conditional, -when an obligation is re- ferred to an accident, and depends upon something to be done or not done, to happen or not to happen, before the stipulation can take effect ; for instance, if a man stipulates thus, " Do you promise to pay me five aurei if Titius is made a consul?" or thus, " Do you promise to pay me five aurei if I do not ascend the' Capitol? "which last stipulation is in effect the same as if he had stipulated that five aurei should be paid to him at the time, of his death. It is to be observed that in every conditional- stipulation there is only a hope that the thing stipulated will . become due, and this hope a man transmits to his heirs if he dies before the event of the condition. § 5. Even places are often inserted in a stipulation, as, for example, " Do you promise to give me such a particular thing at Carthage?" and this stipulation, though it appears to be made simply, yet in reality carries with it a space of time, which the obligor may make use of to enable himself to pay the money promised at Carthage. , Aud therefore, if a man at Eome should stipulate in these words, " Do you promise to pay me a sum of money this day at Carthage?" the stipulation would be null, because the performance of it would be impossible. § 6. Conditions which relate to the time present or past either instantly annul an obligation, or instantly enforce it ; for ex- ample, if a man should thus stipulate, " Do you promise me the payment of a sum of money if Titius hath ever been a consul?" or thus, " If Msevius is now living ?" If these things are not so, that is, if Titius hath never been a consul, and Maevius is not now living, the stipulation is void; and if they are so, that is, if Titius hath been a consul, and Maevius is actually living, then the stipulation is good, and may be enforced ; for evpnts which in themselves are certain delay not the performance of an obli- gation, although to us they are not certain. § 7. Not only things, as a field, a slave, or a book, but also acts, may be the subject of stipulations ; as when we stipulate that something shall or shall not be done. And in these stipu- lations it will be right to subjoin a penalty, lest the value of the ' L I. 2 516 0UTI,1NE OF ROMAX HISTOKY. stipulation should lae uncertain, and the demandant should therefore be forced to prove how far he is interested in it. And therefore, if a man stipulates that something shall be done, a penalty ought to be thus added, " Do you not promise to pay me ten aurei as a penalty if the act stipulated is not performed?" But if it is agreed in the same obygation that some things shall be done, and that others shall not be done, then ought some such clause as the following to be added : " Do you promise to pay me ten aiirei as a penalty if anything is done contrary to agreement, or if anything is not done according to our agree- ment?" Tit. XVII. De duobus reis stipulandi-et promittendi. Two or more persons may stipulate, and two or more may become obHgers. The stipulating parties are bound, if, after all questions have been asked, the obliger answers, "I pro- mise " ; as when, for example, the obliger thus answers two persons separately stipulating, " I promise to pay each of you." For if he first promises Titius, and afterwards promises another who interrogates him, there wiU then be two obligations, and not two stipulators to one obligation. Two or more become obligers if, after they have been thus interrogated, 'SMsevius, do you promise to pay us ten aurei?" and "Seius, do you promise to pay us the same ten aurei ? " they each of them answer separately, " I do promise." § 1. By these stipulations and obligations, the whole simi stipulated becomes due to every person stipulating, and every obliger is bound for the payment of the whole. But, as one and the same thing is due by each obligation, therefore any one of the stipulators by receiving the debt, and any one of the obligers by paying it, discharges the obligation of the rest, and frees all parties. § 2. Where there are two obligers, the one may bind himself purely and simply, and the other may oblige himself only to make payment on a day certaia, or upon condition : but neither the day certain nor the condition will secure the person, who is simply bound, from being sued for the payment of the whdle. JUSTINIAN BOOK III, 517 Tit. XVIII. Be stipulutionibm servm^um. A slave obtains the liberty of stipulating from the person of his master; hut in many instances the inheritance represents, -the person of a niaster deceased; and therefore, whatever an hereditary slave stipulates for before the inheritance is entered upon, he acquires it for the inheritance, and of course for him who afterwards becomes the heir. § 1. A slave, let him stipulate how he will, for his master, for himself, for a fellow-slave, or generally without naming any person, always acquires for his master. And the same obtains among children who are under the power of their father, in regard to those things which they can acquire for him. § 2. But when a fact or thing to be done is contained in a stipulation, the person of the stipulator is solely regarded ;' so that if even a slave stipulates that he shall be permitted to pass through a field, and to drive beasts or a carriage through it, it is not the master, but the slave only, who is to be permitted to pass. § 3. If a slave, who is in common to several masters, stipu- lates, he acquires a share for each, master according to the pro- portion which each has in the property of him. But if such should stipulate at the command of any particular master, or in his name, the thing stipulated will be acquired solely for that master. And whatever a slave in common to two masters stipulates for, if part cannot be acquired for one master, the whole shaU be acquired for the other ; as when the thing stipu- lated already belongs to one of the two. Tit. XIX. Be divisione stipulationum. Some stipulations are judicial, others praetorian, others" con- ventional, and others common, that is, both prsetorian and judicial. § 1. The judicial are those which proceed merely from the office of the judge; as when security is ordered to be given against fraud, or for pursuing a slave who hath fled, or for paying the price of him. § 2. The pristorian stipulations are those which proceed from the mere office of the prsetor ; as when security is ordered to be 518 OUTLINE OF KOMAN HISTOKY. given pro damno tnfecto, that is, on aoeount of damage not yet done, but likely to happen ; and for the payment of legacies. And note, that under praetorian stipulations we comprehend the Edilitian, for these proceed from the jurisdiction of the ■ praetor. § 3. Conventional stipulations are those which are made hy the agreement of parties; that is, neither by order of a judge nor praetor, but by the consent of the persons contracting ; and of these stipulations there are as many kinds, as of things to be contracted for. § 4. Common stipulations are those which are ordered for the security of the effects of a pupil, — for the praetor ordains a caution to be given on this account, and sometimes a judge decrees it, when there is an absolute necessity, — or for the ratifi-- Cation of a thing done in another's name. Tit. XX. Be Everything of which we have the property may be brought i^ito stipulation, whether it is moveable or immoveable. § 1. But if a man hath stipulated that a thing shall be given, which does not or cannot exist, as, for instance, that Stichus the slave, who is dead, but is thought to be living, or that a Centaur, who cannot exist, should be given to him, the stipulation is of no force. § 2. And the law is the same, if a thing sacred, which was thought to be not so, is brought into stipulation ; or if a man stipulates for a thing of ■ constant public use, as a forum or a theatre ; or for a free person, who was thought to be bond ; or for a thing which he cannot acquire ; or for something which is already his own : nor shall any such stipulation continue in suspense, because a thing public may become private, a freeman may turn slave, a stipulator may become capable of acquiring, or because what now belongs to the stipulator may cease -to be his; but every such stipulation shall be instantly void. And, on the contrary, although a thing may properly be brought into stipulation at first, yet, if it afterwards falls under the class of any of the things before mentioned without the fault of the obliger, the stipulation is extinguished. And such a stipulation JUSTINIAN — BOOK III. 819 US the follQwing shall never be valid: for instanoe— "Do you promise to give me Lucius Titius when he shall become a slave?" for those things, which in their natures are exempt from our dominion, are by no means to be brought into obliga- tion. § 3. If a man promises that another shall give or do some- thing, such promissor shall not be bound ; as if a man should promise that Titius shall pay five aurei: but if he promises that he will cause Titius to pay five aurei, his promise shall be binding. § 4. If a man stipulates for any other than for him to whom he is subject, such stipulation is a void act ; but, nevertheless, a payment of a thing promised may be made to a stranger ; as if a man should thus stipulate — " Do you promise to make pay- ment to me, or to Seius ? " for when the obligation is to the stipulator, the payment inay well be made to Seius, though ■against his will ; and this is allowed in favour of the debtor, that he may be legally freed from, his debt ; and the stipulator, if there is occasion, may have.iin action of mandate a,gainst Seius. And if a man should stipulate, that ten aurei shall be ■paid to him and.to another not under his power, the stipulation would be good ; yet it hath been a doubt, whether the whole sum due would be due to the stipulator, or only a moiety ; and it hath been resolved, that the stipulator in this case acquires a moiety only. But if you stipulate for another who is subject to your power, you acquire for yourself ; for your own words are reputed your son's, and your son's words are reputed yours, in regard to aU those things which can possibly be acquired for you. § 5. A stipulation is void, if the party interrogated does not answer pertinently to the demand made; as when a person stipulates that ten aurei shall be paid him, and you answer five ; or, lice versa, if he stipulates for five, and you answer " I promise ten." A stipulation is also void if a man stipulates simply, and you promise conditionally ; or, on the contrary, if he stipulates conditionally, and you answer purely, and in express terms; ; that is, if-, when a man is stipulating conditionally or at a day .certain, jou answer him thus—" I promise you payment on this 520 OUTLINE OF ROMAN HISTORY. present day." But if you answer only, " I promise," you seem in brief speech to agree to Ms day or condition. For it is not necessary that in the answer every word should be repeated which the stipulator expressed. § 6. A stipulation is also void if you stipulate with him who is in subjection to your power, or if he stipulates with you. For a slave is not only incapable of entering into an obligation with his master, but is also incapable of binding himself to any other person. But the son of a family can enter into an obligation with any other person except his father. § 7. It is evident, that a dumb man can neither stipulate nor promise; and the same law is received in regard to deaf persons ; for he who stipulates, ought to hear the words of the obliger ; and he who promises, the words of the stipulator. But we speak not of him who hears with difficulty, but of biTn who has no hearing. § 8. A madman can transact no business, because he under- stands not what he does. § 9. A pupil is capable of transacting any business if his tutor consents, where his authority is necessary ; as it certainly is, when the pupil would bind himself : but 4 pupil can stipu- late, or cause others to be bound to him, without the authority of his tutor. What we have said of pupils must be tmderstood of those who have some understanding.; for an infant, or one next to an infant, differs but little from a person out of his senses ; for pupils of such an age have no understanding ; but a more favourable interpretation is given to the law; in regard to those who are but little removed from infancy, whenever their own utility is concerned, so that they are then allowed the same rights as those who are near the age of puberty. But a son who is under the power of his father, and within the age of puberty, cannot bind himself, even although his father consents and authorizes the transaction. § 10. If an impossible condition is added to an obligation, the stipulation is null ; and that condition is reckoned impossible of which nature forbids the event; as, for example, if a man should say, "Do you promise me ten aurei if I touch the heavens with my finger? " but suppose a stipulation to be thus JUSTINIAN — BOOK III. 521 made — " Do you promise me payment if I do not toucli the sky with, my finger?" such a stipulation would be understood to cause a simple ohligation, the performance of which might be instantly demanded. § 11. A verbal obligation made between absent persons is also void. But when this doctrine afforded matter of strife to con- tentious, men, alleging, after some time past, that either they or the other parties were not present, we issued our constitution addressed as a rescript ^to the advocates of Ceesarea, which efEectually provided for the speedy determination of such suits : and by this we have ordained that full credit shall be given to those written acts or instruments which declare that the Con- tracting parties were present, unless the party who alleges absence makes it evident by the most manifest proofs, either in writing or by witnesses, that either he or his adversary was in some other place during the whole day in which the instrument was made. § 12. A man could fornierly no more stipulate that a thing should be given him after his own death than he could stipulate that a thing should be given him after the death of the obliger. Neither could any person under the power of another stipulate that anything should be given him after his death, because such person would appear to speak the words pf his father or master. And if a man had stipulated in this manner—" Do you promise to give me five aiirei the day before I die, or the day before you die ? " the stiptolation was also invalid. But since all stipulations, as we have abeady said, take their rise and force from the consent of the contracting parties, we have thought it proper to introduce a necessary emendation in this , respect, so that whether it is stipulated that a thing shall be given after, or immediately before, the death either of the stipulator or the obliger, the stipulation shall be good. § 13. Also, if a man had stipulated in these words — " Do you promise me a sum of money to-day if a certain ship arrives io-morrow from Asia?" the stipulation would have been invalid because preposterously conceived. But since the .Emperor Leo, of renowned memory, was of opinion that such stipulations ought not to be rejected in regard to marriage 522 OUTLINE OF ROMAN HISTORY. portions, it hath pleased us also to give a fuller force to this doctrine, by ordaining that every stipulation of like import shall hold good not only in marriage portions, but likewise in all other contracts. § 14. If a stipulation had been conceived in the following ■words — " Do you promise to give me ten aurei at the time when I shall die ?" or thus, " at the time when you shall die ? " it was good by the ancient law, and is now valid. § 15. We may also legally stipulate that a thing shall be given after the death of a third person. § 16. If it is written in an act or instrument properly attested that a man hath entered into an obligation by promise, it will be always presumed that the promise was in answer to a prece- dent interrogation, and that everything was done regularly. § 17. When many things are comprehended in one stipula- tion, a man binds himself to give them all if he answers simply, " I promise." But if he promises to give one or some of the things stipulated, an obligation is contracted only in respect to those things which he promised to give. For where there are many stipulations it may happen that only one or some of them may be made perfect by a separate answer ; and strictly we ought to stipulate for everything severally, and to answer severally. § 18. No man can stipulate for another, as we have already observed ; for stipulations and obligations have been invented, that every person may acquire for himself whatever may be of advantage to him ; and if this is given to another, the stipulator has no interest. But if a man would effectually contract for another, he should stipulate, that unless the covenants of his stipulation are performed, the obliger shall be subject to a penalty, payable to him, who otherwise would receive no advantage from the obligation : for when a penalty is stipulated, the advantage or interest of the stipulator is not regarded, but the quantity of the penalty is the only thing considered. And therefore, if a man should stipulate, that a certain thing shall be given to Titius, it will not avail ; but if to the stipulation he adds a penalty, as thus, — " Do you promise to give me ten aurei, if you do not give the thing stipulated to Titius ? " the stipur JUSTINIAN— BOOK III. 523 lation of the penalty will take plaoe if the ohligation is not ferformed. § 19. But if any man stipulates for the benefit of another, when he himself also receives an advantage from it, the stipu- lation is valid. Thus, if he who hath begun to administer the tutelage of a pupil, should afterwards cede or give up the administration to his co-tutor, and stipulate for the security of the estate of his pupil, in this case — inasmuch as such a stipu- lation is for the interest of the stipulator, who would be obliged to answer aU. damages to the pupH, if the co-tutor did not justly administer the pupillary trust — ^the obligation would bind. And upon the same principle, if a man stipulates that a thing shall be given to his proctor or attorney, the stipulation shall prevail. And a stipulation is also good which is made by a debtor for the use of his creditor, because it is the interest of the debtor either that the penalty, upon which he borrowed money of his creditor, should not be exacted from him, or that his goods, which are hypothecated with his creditor, should not he sold. § 20., On the contrary, he who promises that another, namely Titius, shall perform some particular act, is not bound by such promise, unless he makes himself subject to a penalty if the act is not performed by Titius. § 21. No man can legally stipulate that a thing shall be given him when it shall become his own. § -22. If the stipulator stipulates in regard to one thing, and the obliger promises in relation to another, no obligation is contracted ; and the parties are as much at liberty as if no answer had been made to the interrogation : and this would be the case, if a man should stipulate that Stichus should be given to him ; and the obliger should intend to give Pamphilus, upon a thorough persuasion that Pamphilus is called Stichus. § 23. A promise made for a dishonest purpose, as, for example, to coramit homicide or sacrilege, is not binding. § 24. If a stipulation hath been entered into upon condition, and the stipulator should die pending the event of it, his heir will be entitled to an action against the obliger if the event 524 OUTLINE OF KOMAN HISTOE.Y. afterwards happ'ens. And if tlie obllger sHould die before the condition happens, his heir may be sued by the stipulator. § 23. Whoever stipulates that a thing shall be given to him this year or this iponth, cannot legally sue the obliger till the ■jvhole year or month is elapsed. And if a man stipulates, that a piece of ground or slave sh,all be given to him, he cannot instantly sue the obliger, but must wait till such a space of time hath passed in which a delivery might reasonably have been made. Tit. XXI. De fldejmsoribus. It frequently happens, that others bind themselves for him who promises. These bondsmen or sureties are called fide- jussors, and are generally required by creditors for their greater security.. § 1. Fide-jussors ma.j be received in all obligations, whether contracted by the delivery of the thing itself, by words, by writing, or the mere consent of parties; nor is it material whether the obligation is civO. or natural ; for a man may inter- vene, and oblige himself as a fide-jussor or surety, even on the behalf of a slave ; and this may be done, whether the person who accepts the fide-jussor is a stranger, or the master of the slave, when the thing due is a natural debt or obligation. § 2. A. fide-jussor is not only bound himself, but by his death transmits the obligation to his heir. § 3. A fide-jussor may be accepted either before or after an obligation is entered into. ' . § 4. Where there axe fide-jussors or sureties, let them be ever so numerous, they are each bound by law in solidum, i. e., for the whole debt ; and the creditor is at liberty to choose from whom he will demand it. But, by a rescript of the Emperor Adrian, a creditor may be obliged to demand separately from ey&cj fide- jussor, who is solvent at the time of contestation of suit, his share of the debt pro rata; and if any of the fide-jussors, at the time of the contestation of the suit, is not solvent, the burden falls upon the rest. But if a creditor obtain his whole demand from one of the fide-jussors, the whole loss shall be his, if the party principal for whom he is bound is insolvent; for such, fide-jussor' can impute this loss only to himself, since he might have called JUSTINIAN — BOOK III. 52-5 to £is aid the 'rescript of the Emperor Adrian, and have prayed that an action should not have heen given against him, obliging him to the payment of more than his share of the debt, as a surety. § 5. Fide-j'ussors ought not to be bound in a greater sum than the debtor owes for whom they are bound ; for their obligation is an accession to the principal obligation ; and an accessory debt cannot be greater than the principal, though it may be less. Therefore, if the principal obliger promises ten atcrei, the Jide- jussor may be bound in five ; but the fide-jussor cannot be bound in ten aurei, when the principal obliger is bound only in five. Also, when the obliger promises simply, the surety may promise conditionally ; but if the surety is bound simply, when the prin- cipal debtor is bound only conditionally, the obligation is void. And the terms greater and less take place not only in quantity, but also in time ; for an obligation to give or deliver a thing instantly is greater than an obligation to give or deliver it after a time. § 6. If a fide-jussor hath been obliged to pay money for the person for whom he was bound, the fide-jussor may have an action of mandate against him for the recovery of the sum paid. § 7. A fide-jussor may thus bind himself even in Greek : rrt e/j.Yi iciarn xsKeva, X£y